Kennedy v. Bowser
| Decision Date | 09 December 2016 |
| Docket Number | No. 15-7143,15-7143 |
| Citation | 33 A.D. Cases 173,843 F.3d 529 |
| Parties | Manu Kennedy, Appellant v. Muriel Bowser, Mayor of Washington, District of Columbia, et al., Appellees |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Richard T. Seymour, Washington, DC, and Shannon C. Leary, Silver Spring, MD, argued the cause for the appellant. Gary M. Gilbert, Silver Spring, MD, was on the briefs.
P. David Lopez, General Counsel, Equal Employment Opportunity Commission, Jennifer S. Goldstein, Associate General Counsel, Lorraine C. Davis, Assistant General Counsel, and Philip M. Kovnat, Attorney, were on the brief for amicus curiae Equal Employment Opportunity Commission in support of the appellant.
Stacy L. Anderson, Senior Assistant Attorney General, Office of the Solicitor General, argued the cause for the appellees. Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were with her on the brief.
Before: Henderson and Griffith, Circuit Judges, and Sentelle, Senior Circuit Judge.
Manu Kennedy was a fireman with the District of Columbia (District) Fire and Emergency Medical Services Department (Department). He had a beard. Department policy required him to shave it. Because of a medical condition, however, he could not do so without discomfort and infection. He asked the Department to accommodate his condition. The Department refused. Kennedy sued, alleging 28 counts of discrimination. As relevant here, he alleged disability discrimination under the Americans with Disabilities Act of 1990 (ADA) and related statutes, arguing that his condition was a "disability" as defined by the ADA Amendments Act of 2008 (Amendments Act or Act). The district court dismissed eight counts resting on that definition. It later denied reconsideration. Kennedy appeals the latter order on an interlocutory basis under 28 U.S.C. § 1292(b).
Section 1292(b) provides an appellate court with jurisdiction to review an interlocutory order only "if application is made to it within ten days after the entry of the order[.]" Kennedy did not satisfy that condition. He filed a notice of appeal in the district court two days after the court denied reconsideration. But he waited several weeks before filing his application in this Court. He does not dispute that his application was late and therefore inadequate under section 1292(b). Instead he contends that the notice of appeal and the order denying reconsideration, both of which were transmitted to this Court within the statutory period, serve the same purpose as an application and can be treated as such. We disagree. Even assuming the "functional equivalent" of an application satisfies section 1292(b) and Rule 5 of the Federal Rules of Appellate Procedure —an issue we do not decide—the notice and order here do not meet that description. Absent a timely application, we lack jurisdiction. Carr Park, Inc. v. Tesfaye , 229 F.3d 1192, 1194 (D.C. Cir. 2000) (per curiam). Accordingly, and for the reasons below, we dismiss Kennedy's appeal.
Kennedy attempts to appeal the dismissal of several claims. We therefore "accept all the well-pleaded factual allegations of the complaint as true and draw all reasonable inferences from those allegations in [his] favor." Banneker Ventures, LLC v. Graham , 798 F.3d 1119, 1129 (D.C. Cir. 2015). Because we do not—indeed cannot—pass upon the merits, see Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 93–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), we recite the facts and procedural history only as necessary to provide context for dismissing the appeal.
In 2001, the Department implemented a policy prohibiting beards. The policy was meant to ensure that every firefighter's respirator fit properly. Kennedy began working for the Department in 2002 and complied with the policy for several years. He did so even though he suffered from pseudofolliculitis barbae, a condition that can cause ingrown hairs, irritation, sores and infection from shaving.
By May 2008, Kennedy had an infected spot on his face that did not heal because of his close shaving. His dermatologist told him that he needed to maintain facial hair of at least one-eighth inch. Kennedy followed his physician's recommendation and in July 2008 arrived at work with a beard. He gave the Department documentation of his physician's opinion and sought an accommodation for his condition. The Department denied his request and temporarily suspended him.
In September 2008, the Congress passed the Amendments Act, Pub. L. No. 110–325, 122 Stat. 3553,"to broaden the definition of a disability" under the ADA, 42 U.S.C. §§ 12101 et seq .Nurriddin v. Bolden , 818 F.3d 751, 757 n.4 (D.C. Cir. 2016) (per curiam); compare 42 U.S.C. § 12102(2) (1990) (earlier definition), with Amendments Act § 4(a), 122 Stat. at 3555–56 (expanded definition). The Congress found that courts had unduly "narrowed the broad scope of protection intended to be afforded by the ADA" and "incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities [.]" Amendments Act § 2(a)(4), (6), 122 Stat. at 3553. The Act took effect on January 1, 2009. Amendments Act § 8, 122 Stat. at 3559.
In 2009 through 2013, between absences owing to suspension, stress and depression, Kennedy continued to work at the Department. But because he had a beard—and even though he had passed a "fit test" demonstrating that he could safely wear a respirator over it—the Department limited him to office duty, training and fire inspections. At least twice after January 1, 2009, Kennedy sought an accommodation permitting him to work—bearded—full time in the field. The Department either denied the requests or did not act on them. Kennedy resigned in May 2013.
In September 2013, Kennedy filed suit against the District, the Department and several officials. The district court dismissed from the suit all defendants except the District. The complaint alleged 28 counts of discrimination. At issue here are eight counts that allege violations of 42 U.S.C. § 1983 (Counts 6, 9 and 13); the District of Columbia Human Rights Act of 1977, D.C. CODE §§ 2–1401.01 et seq. (Counts 10 and 14); and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. (Counts 22, 23 and 24). Those eight counts rest on Kennedy's claim that his condition, pseudofolliculitis barbae, is a disability within the meaning of the ADA.
In March 2015, the district court dismissed those eight counts. It recognized that, before it could determine whether Kennedy had alleged facts sufficient to stave off dismissal, it had to decide whether the Amendments Act applied. It held that the Act did not apply and that "the pre-amendment liability standards govern this case." Mem. Op. 9, Dkt. No. 21 (Mar. 20, 2015). In reaching its conclusion, the court emphasized that the Act "did not become effective until January 1, 2009, and it does not have retroactive effect." Id . at 7 (citing Lytes v. D.C. Water & Sewer Auth. , 572 F.3d 936 (D.C. Cir. 2009) ). In the court's view, applying the Act's expanded definition of a disability even to the Department's post-enactment failures to accommodate Kennedy's condition gave the Act retroactive effect because the Department's conduct related back to the 2008 request for an accommodation. The court then held that Kennedy's condition did not meet the pre–2009 definition of a disability. It did not address whether his condition is a disability under the expanded definition.
In April 2015, Kennedy moved the district court to reconsider its decision.1 Alternatively, he asked the court to amend its March 2015 order by certifying it for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
On November 16, 2015, the district court denied reconsideration but certified for immediate appeal "the issue of whether the [expanded] definition of ‘disability’ applies to Kennedy's complaints...."2 Mem. Op. & Order 9, Dkt. No. 30 (Nov. 16, 2015). The court concluded that the issue is " ‘a controlling question of law’ "; " ‘there is substantial ground for difference of opinion’ " about it; and an interlocutory appeal " ‘may materially advance the ultimate termination of the litigation.’ " Id . (quoting 28 U.S.C. § 1292(b) ). In acknowledging substantial ground for difference of opinion, the court pointed especially to guidance from the United States Equal Employment Opportunity Commission (EEOC) that the Amendments Act " ‘would apply to denials of reasonable accommodation where a request was made (or an earlier request was renewed ) ... after January 1, 2009.’ " Id . at 6 () (emphasis supplied by district court). And in concluding that an interlocutory appeal materially advanced the litigation, the court noted that "an eventual reversal ... after the parties fully litigate the remaining counts would likely require reopening discovery on the issues of disability and reasonable accommodation, resulting in significant but avoidable costs and delays." Id . at 7.
Section 1292(b) requires the appellant to file an application for permission to appeal with the appellate court within ten days after entry of the order from which the appeal is taken. Under Federal Rule of Appellate Procedure 5, which implements section 1292(b),3 "[a] notice of appeal need not be filed." FED. R. APP. P. 5(d)(2).
Notwithstanding those provisions, Kennedy filed a notice of appeal in district court on November 18, 2015, two days after the order denying reconsideration. The next day, ...
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