Manu Kennedy v. Murial Bowser , 843 F.3d 529 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 6, 2016 Decided December 9, 2016
No. 15–7143
MANU KENNEDY,
APPELLANT
v.
MURIEL BOWSER,
MAYOR OF WASHINGTON, DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01384)
Richard T. Seymour and Shannon C. Leary argued the
cause for the appellant. Gary M. Gilbert 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
2
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.
Opinion for the Court filed by Circuit Judge HENDERSON.
Concurring opinion filed by Circuit Judge GRIFFITH.
KAREN LECRAFT HENDERSON, 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
3
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.
I. BACKGROUND
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 (1998), we recite the facts and procedural history only as
necessary to provide context for dismissing the appeal.
A. ALLEGED DISCRIMINATION
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.
4
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.
5
B. KENNEDY’S COMPLAINT
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.
C. DISTRICT COURT’S DISMISSAL OF COUNTS
AND CERTIFICATION OF APPEAL
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.
6
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,
1
Kennedy styled his motion as one to alter or amend
judgment. Because the district court’s March 2015 order did not
resolve all of his claims or result in a judgment, however, the court
treated the motion as one seeking reconsideration. Kennedy does
not claim error on that score.
2
Under section 1292(b), “appellate jurisdiction applies to the
order certified to the court of appeals, and is not tied to the particular
question formulated by the district court.” Yamaha Motor Corp.,
U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996) (emphasis in original).
The district court did not specify which order—the March 2015
order dismissing counts or the November 2015 order denying
reconsideration—it was certifying. But because the time for
appealing the March order had expired, and because the certification
was included in the November order, we conclude that the court
certified the latter order. See FED. R. APP. P. 5(a)(3) (“[T]he district
court may amend its order, either on its own or in response to a
party’s motion, to include the required permission or statement. In
that event, the time to petition runs from entry of the amended
order.”).
7
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
(quoting EEOC, Questions and Answers on Final Rule
Implementing ADA Amendments Act of 2008,
http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm)
(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.
D. KENNEDY’S ATTEMPT TO PERFECT APPEAL
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,
November 19, the district court transmitted the notice and the
order to this Court. Kennedy did not file an application in this
3
Rule 5 “govern[s] all discretionary appeals from district-court
orders, judgments, or decrees . . . includ[ing] interlocutory appeals
under 28 U.S.C. § 1292(b), (c)(1), (d)(1) & (2).” FED. R. APP. P. 5
advisory committee’s note to 1998 amendments.
8
Court until December 30, 2015, several weeks after the ten-day
deadline had passed. In early January 2016, the District filed
an opposition asking that the application be denied as untimely.
The application was referred to the merits panel.
II. ANALYSIS
Kennedy argues that we have jurisdiction under section
1292(b). 4 He does not dispute that, because his application to
this Court was untimely, it did not itself satisfy the statute or
Rule 5. FED. R. APP. P. 5(a)(2) (“The petition must be filed
within the time specified by the statute or rule authorizing the
appeal . . . .”); see FED. R. APP. P. 26(b)(1) (“[T]he court may
not extend the time to file . . . a petition for permission to
appeal . . . .”). He contends, however, that his notice of appeal
and the order denying reconsideration—both of which were
transmitted to this Court within the statutory period—are the
“functional equivalent” of a timely application. Appellant’s
Reply Br. 8; see Appellant’s Br. 4-5. We disagree.
Section 1292(b) provides:
When a district judge, in making in a civil
action an order not otherwise appealable under
this section, shall be of the opinion that such
order involves a controlling question of law as
to which there is substantial ground for
difference of opinion and that an immediate
appeal from the order may materially advance
4
Because Kennedy invokes only section 1292(b), we need not
consider whether there is any alternative basis for jurisdiction. See
Scenic Am., Inc. v. Dep’t of Transp., 836 F.3d 42, 53 n.4 (D.C. Cir.
2016) (“Although a party cannot forfeit a claim that we lack
jurisdiction, it can forfeit a claim that we possess jurisdiction.”).
9
the ultimate termination of the litigation, he
shall so state in writing in such order. The
Court of Appeals which would have jurisdiction
of an appeal of such action may thereupon, in its
discretion, permit an appeal to be taken from
such order, if application is made to it within ten
days after the entry of the order: Provided,
however, That application for an appeal
hereunder shall not stay proceedings in the
district court unless the district judge or the
Court of Appeals or a judge thereof shall so
order.
28 U.S.C. § 1292(b).
Rule 5 effectuates and augments the statute. Rule 5(a)(1)
provides in part that “a party must file a petition for permission
to appeal[,]” which petition “must be filed with the circuit
clerk[.]” Rule 5(b)(1) lists the required “[c]ontents of the
[p]etition” as follows:
(A) the facts necessary to understand the
question presented;
(B) the question itself;
(C) the relief sought;
(D) the reasons why the appeal should be
allowed and is authorized by a statute or rule; and
(E) an attached copy of:
(i) the order, decree, or judgment
complained of and any related opinion or
memorandum, and
10
(ii) any order stating the district court’s
permission to appeal or finding that the
necessary conditions are met.
Finally, Rule 5(b)(2) provides that “[a] party may file an
answer in opposition or a cross-petition within 10 days after the
petition is served.”
We have not previously addressed whether a notice of
appeal, accompanied by the order certifying an appeal, can
satisfy section 1292(b) and Rule 5 if the documents are
transmitted to this Court within the statutory period. In Carr
Park, Inc. v. Tesfaye, 229 F.3d 1192 (D.C. Cir. 2000) (per
curiam), we broadly stated that “[f]ailure to file the petition for
permission to appeal within the 10-day period provided by the
statute deprives us of jurisdiction over the appeal.” Id. at
1194. No notice of appeal was filed there, see Tesfaye v. Carr
Park, Inc., 1:99-cv-02561 (D.D.C.), and we therefore had no
occasion to decide the question we confront today.
Our sister circuits have taken divergent approaches to the
application requirement. Some have “strictly construed” the
requirement. Milbert v. Bison Labs., Inc., 260 F.2d 431, 435
(3d Cir. 1958) (en banc); see also, e.g., Lynch v.
Johns-Manville Sales Corp., 701 F.2d 44, 45 (6th Cir. 1983)
(per curiam) (requiring “strict compliance”). Other courts are
somewhat more flexible. Analogizing to United States
Supreme Court precedent interpreting Federal Rule of
Appellate Procedure 3, see Smith v. Barry, 502 U.S. 244,
247-50 (1992); Torres v. Oakland Scavenger Co., 487 U.S.
312, 314-18 (1988), the latter courts have held or at least
suggested that they do not require strict compliance if a
“functional equivalent” serves as the application, see, e.g., In
re Turner, 574 F.3d 349, 351-54 (7th Cir. 2009) (Rule 5);
Blausey v. U.S. Tr., 552 F.3d 1124, 1130-31 (9th Cir. 2009)
11
(per curiam) (Rule 5); Estate of Storm v. Nw. Iowa Hosp.
Corp., 548 F.3d 686, 687-88 (8th Cir. 2008) (per curiam)
(section 1292(b) and Rule 5); Main Drug, Inc. v. Aetna U.S.
Healthcare, Inc., 475 F.3d 1228, 1231-32 (11th Cir. 2007)
(Rule 5); Casey v. Long Island R.R. Co., 406 F.3d 142, 145-46
(2d Cir. 2005) (section 1292(b) and Rule 5); Aucoin v.
Matador Servs., Inc., 749 F.2d 1180, 1181 (5th Cir. 1985)
(section 1292(b) and Rule 5).
We need not choose between the competing approaches
here. Even under the more flexible approach, the documents
the district court transmitted to this Court were not equivalent
to an application. See Torres, 487 U.S. at 315-16 (“Permitting
imperfect but substantial compliance with a technical
requirement is not the same as waiving the requirement
altogether as a jurisdictional threshold.”). The baseline
requirement is that the “party must file a petition for
permission to appeal . . . with the circuit clerk . . . .” FED. R.
APP. P. 5(a)(1) (emphasis added). The only thing Kennedy
filed within the statutory period was the notice of appeal.
Because the notice was not directed to this Court and did not
request permission to appeal, it nowise functioned as an
application. See Main Drug, 475 F.3d at 1232 (notice of
appeal and application for permission to appeal “are
fundamentally different” in terms of “function”); Aucoin, 749
F.2d at 1181 (notice of appeal “misfires in function”); cf.
Casey, 406 F.3d at 146 (merits brief filed in court of appeals
before section 1292(b)’s ten-day deadline was functional
equivalent of application).
Nor do we have any business rewriting Rule 5 to permit a
would-be appellant to enlist the district court to serve as his
proxy by the latter’s transmitting the notice of appeal and the
order under review as a rough substitute for an application.
The district court’s order explained why, in the court’s view,
12
the case met the statutory criteria for certification. Mem. Op.
& Order 9, Dkt. No. 30 (Nov. 16, 2015) (court concluded that
Amendments Act issue was “‘a controlling question of law as
to which there is substantial ground for difference of opinion’”
and that “‘an immediate appeal . . . may materially advance the
ultimate termination of the litigation’”) (quoting 28 U.S.C. §
1292(b)) (ellipses supplied by district court). To repeat,
however, the Rule requires that a party file the petition, FED. R.
APP. P. 5(a)(1), which means that the party must explain “why
the appeal should be allowed and is authorized by a statute or
rule[,]” FED. R. APP. P. 5(b)(1)(D). Because the Rule
demands the applicant’s advocacy, transmission of the district
court’s views does not suffice. The Supreme Court has all but
stated as much. See Coopers & Lybrand v. Livesay, 437 U.S.
463, 475 (1978) (“[E]ven if the district judge certifies the order
under § 1292(b), the appellant still has the burden of
persuading the court of appeals that exceptional circumstances
justify a departure from the basic policy of postponing
appellate review until after the entry of a final judgment.”)
(internal quotation omitted).
Section 1292(b)’s discretionary nature reinforces our
conclusion. 28 U.S.C. § 1292(b) (if district court certifies
appeal, appellate court “may thereupon, in its discretion,
permit an appeal to be taken . . .”). The legislative history
compares the appellate court’s discretion under section
1292(b) to the Supreme Court’s discretion to grant or deny
certiorari under 28 U.S.C. § 1254(1). S. Rep. No. 85-2434, at
3 (1958) (appellate court “may refuse to entertain such an
appeal in much the same manner that the Supreme Court today
refuses to entertain applications for writs of certiorari”). In
other words, we “may deny the appeal for any reason,
including docket congestion,” Coopers & Lybrand, 437 U.S. at
475, and we are not limited to the statutory criteria that govern
the district court’s certification decision, Katz v. Carte Blanche
13
Corp., 496 F.2d 747, 754 (3d Cir. 1974) (en banc). It follows
that the district court, in certifying an appeal, may not
ordinarily discuss all of the considerations bearing on “why the
appeal should be allowed[.]” FED. R. APP. P. 5(b)(1)(D).
That is the applicant’s task, a necessary part of which is
persuading us that there is no prudential impediment to our
interlocutory review. See, e.g., Garcia v. Johanns, 444 F.3d
625, 636-37 (D.C. Cir. 2006) (declining under section 1292(b)
to review claim “benefit[ing] from further development in the
district court”); 16 CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE: JURISDICTION AND RELATED
MATTERS § 3929, at 447-52 & nn.51, 54-58 (3d ed. 2012)
(citing cases denying or withdrawing permission to appeal for
various prudential reasons).
In short, neither the notice of appeal nor the district court’s
order performed the required adversarial functions. The
notice was pro forma. The order (properly) addressed only
the statutory criteria with no reference to prudential
considerations that might stay our hand until final judgment.
Additionally, Kennedy’s failure to file a bona fide application
within the statutory period deprived the District of an
opportunity to respond promptly. Under Rule 5(b)(2), the
District was entitled to “file an answer in opposition or a
cross-petition within 10 days after the petition [was] served.”
If Kennedy were right that he effectively petitioned this Court
on November 19, 2015—the day the notice and the order were
transmitted—the District’s answer would have been due on
November 30. 5 Yet the District could not have known the
clock was ticking because Kennedy had not served an
application on it. At oral argument, Kennedy emphasized that
the District was able to address jurisdiction throughout the
5
November 29 was a Sunday so the due date would have been
November 30. See FED. R. APP. P. 26(a)(1)(C).
14
pendency of the appeal, including at the merits stage. Oral
Arg. Recording 3:53-5:37. 6 But the point of the ten-day
deadlines for both the application and the answer is to ensure a
fast and focused process for deciding, before merits briefing,
whether we review the matter at all. Aucoin, 749 F.2d at 1181
(timely application “permits a near-contemporaneous
assessment by the trial and appellate courts of the need for
immediate appellate review” and “inform[s] the appellate court
in a manner which allows it promptly to respond”); see also S.
Rep. No. 85-2434, at 3 (application requirement is “protection
against delay”). Kennedy’s untimeliness thwarted that
threshold process.
*****
The notice of appeal and the order transmitted to this
Court on November 19, 2015, were not the functional
equivalent of an application for permission to appeal and the
application that Kennedy filed on December 30, 2015, was
untimely under 28 U.S.C. § 1292(b). Because a timely
application is a “condition precedent[]” to appellate
jurisdiction, Milbert, 260 F.2d at 435; see Carr Park, Inc., 229
F.3d at 1194, we dismiss the appeal.
So ordered.
6
Kennedy also urged us to treat the district court’s
certification of an appeal as “entry of a final judgment” under
Federal Rule of Civil Procedure 54(b), at least as to the eight counts
based on the ADA. Oral Arg. Recording 5:37-7:39. Because he
raised that point for the first time at oral argument, we do not
consider it. United States ex rel. Davis v. District of Columbia, 793
F.3d 120, 127 (D.C. Cir. 2015) (“Generally, arguments raised for the
first time at oral argument are forfeited.”).
1
GRIFFITH, Circuit Judge, concurring:
I join the court’s holding that Kennedy failed to timely
file even the functional equivalent of a petition for permission
to appeal under 28 U.S.C. § 1292(b) and Federal Rule of
Appellate Procedure 5. Before the statutory deadline, all
Kennedy did was file a notice of appeal with the district
court’s clerk. And all this court received—transmitted by the
district court’s clerk—was that notice, the district court’s
opinion and order certifying the interlocutory appeal, and the
district court’s docket sheet. These materials failed to perform
two essential functions of a petition for permission to appeal:
to actually request permission from this court, and to put the
other party on notice of its chance to respond. See Slip Op. at
11, 13-14; see also FED. R. APP. P. 5(a)(1) (“To request
permission to appeal . . . a party must file a petition for
permission to appeal.”); id. (requiring “proof of service on all
other parties to the district-court action”); id. 5(b)(2) (“A
party may file an answer in opposition or a cross-petition
within 10 days after the petition is served.”).
I write separately to emphasize that our decision is
limited to the facts at hand: a filing that fails to perform the
most rudimentary functions of a proper petition. Our holding
does not resolve whether more conscientious efforts might
qualify as functional equivalents of petitions for permission to
appeal. For instance, we do not rule out that a filing might
pass muster as a functional equivalent if it adopts the district
court’s reasoning by reference. But Kennedy’s filing did not
even direct attention to the portion of the district court’s
opinion discussing § 1292(b). Neither do we hold that a party
must anticipate and address the range of prudential
considerations that the appellate court might find relevant.
But Kennedy failed even to ask this court to permit the
appeal. Nor do we hold that a party may never use an agent to
2
transmit a petition to the circuit court as Kennedy does not
argue that he had used the district court’s clerk in that way.
One final note. Because of the failure by Kennedy’s
counsel to petition for permission to appeal, we are barred
from addressing a merits issue that the district court thought
close and important enough to certify for interlocutory
review. If Kennedy still believes that issue warrants
resolution, he might seek a new certification order from the
district court. Our limited decision today says nothing about
whether a second attempt would succeed. Cf. Marisol v.
Giuliani, 104 F.3d 524, 527-28 (2d Cir. 1997) (describing a
circuit split over whether a new certification order restarts the
§ 1292(b) clock); 28 U.S.C. § 1292(b) (requiring both
certification from the district court and permission from the
appellate court).