IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 98-41392 Summary Calendar _____________________

STEVEN R. HOLTZCLAW,

Plaintiff-Appellant,

versus

DSC COMMUNICATIONS CORPORATION,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (4:97-CV-182) _________________________________________________________________

December 28, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

This case involves an order granting summary judgment for the

defendant in what is foremost an American with Disabilities Act

(“ADA”) case. The district court found that the plaintiff could

not sustain an ADA claim, i.e., was not a qualified individual for

purposes of the disability definition in the Act, when he had made

factually inconsistent statements regarding the totality of his

disability to the Social Security Administration and his would-be

(and former) employer. Finding the plaintiff not to be a qualified

individual, the district court also granted the defendant’s summary

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir.R. 47.5.4. judgment motion on the plaintiff’s Employee Retirement Income

Security Act (“ERISA”) and Age Discrimination in Employment Act

(“ADEA”) causes of action because both Acts require as a threshold

issue that an individual be “qualified” for the job in order to

assert a cause of action. Additionally, the district court denied

the plaintiff’s partial motion for summary judgment as moot.

The district court’s judgment relied on Cleveland v. Policy

Management Systems Corp.,

(5th Cir. 1997), a case that

was subsequently vacated by the Supreme Court in Cleveland v.

Policy Management Systems Corp.,

(1999).

Because a fair consideration of the plaintiff’s claim may have

been restricted by the Fifth Circuit’s now-vacated decision in

Cleveland, the grant of summary judgment is VACATED and REMANDED to

the district court for reconsideration in the light of the opinion

of the United States Supreme Court and for further proceedings if

necessary.

VACATED and REMANDED.

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