Nicholas Defries v. Union Pacific Railroad Company

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICHOLAS DeFRIES, No. 23-35119

Plaintiff-Appellant, D.C. No.

3:21-cv-00205-SB

v.

UNION PACIFIC RAILROAD OPINION

COMPANY, a Delaware corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Oregon

Michael H. Simon, District Judge, Presiding

Argued and Submitted February 14, 2024

San Francisco, California

Filed June 14, 2024

Before: Sidney R. Thomas, David F. Hamilton,* and

Morgan Christen, Circuit Judges.

Opinion by Judge David F. Hamilton

*

The Honorable David F. Hamilton, United States Circuit Judge for the

Seventh Circuit Court of Appeals, sitting by designation.

2 DEFRIES V. UNION PAC. R.R.

SUMMARY**

Employment Discrimination / Statute of Limitations

The panel reversed the district court’s summary

judgment in favor of Union Pacific Railroad Co. in an

employment discrimination action brought under the

Americans with Disabilities Act by Nicholas DeFries.

DeFries was removed from duty as a conductor after he

failed color-vision testing and Union Pacific routed him into

its fitness-for-duty program. A putative class action had

already been filed by a group of Union Pacific employees,

referred to as the Harris class, in Nebraska district court,

alleging that Union Pacific administered its fitness-for-duty

program in ways that violated the Americans with

Disabilities Act. DeFries qualified as a putative Harris class

member under the class definition alleged in the original

Harris complaint, but the Harris district court certified a

narrowed class proposed by class counsel. The Eighth

Circuit reversed class certification, and Defries then filed an

individual lawsuit in the District of Oregon, raising claims

parallel to the class claims in Harris.

The Oregon district court concluded that the

commencement of the class action tolled the statute of

limitations under American Pipe & Construction Co. v.

Utah, 414 U.S. 538 (1974), but the American Pipe tolling

ended when plaintiffs’ counsel in Harris voluntarily

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

DEFRIES V. UNION PAC. R.R. 3

narrowed the class definition. Accordingly, DeFries’s claim

was untimely.

Reversing, the panel concluded that there was ambiguity

in whether the definition of the certified Harris class

included color-vision plaintiffs like DeFries, and this

ambiguity should be resolved in favor of allowing DeFries,

a bystander plaintiff, to rely on American Pipe tolling. Thus,

DeFries was entitled to tolling as a member of the Harris

class until the Eighth Circuit issued the mandate for its

decision reversing class certification, and his claim was

timely. The panel remanded the case for further proceedings.

COUNSEL

Matthew W.H. Wessler (argued), Gupta Wessler PLLC,

Washington, D.C.; Jessica Garland, Gupta Wessler PLLC,

San Francisco, California; James H. Caster, Lucas Kaster,

Nichols Kaster PLLP, Minneapolis, Minnesota; Anthony S.

Petru, Hildebrand, McLeod & Nelson LLP, Oakland,

California; for Plaintiffs-Appellants.

William Walsh (argued), Cozen O'Connor, Seattle,

Washington; Conor D. Rowinski, Cozen O’ Connor, New

York, New York; for Defendant-Appellee.

Nadia H. Dahab, Sugerman Dahab, Portland, Oregon; Leah

M. Nicholls, Public Justice, Washington, D.C.; for Amicus

Curiae Public Justice.

4 DEFRIES V. UNION PAC. R.R.

OPINION

HAMILTON, Circuit Judge:

This case raises a question of first impression for this

court for class-action practice: when does the narrowing of a

class definition end American Pipe tolling of the statute of

limitations for members of a putative or certified plaintiff

class? In American Pipe & Construction Co. v. Utah, 414

U.S. 538, 554 (1974), the Supreme Court established that

“commencement of a class action suspends the applicable

statute of limitations as to all asserted members of the class.”

The end of American Pipe tolling is less clearly defined than

its beginning. The question in this appeal is when the

narrowing of a class definition ends American Pipe tolling

for particular plaintiffs, especially when the scope of the

class definition is disputed and ambiguous as applied to

those plaintiffs. We conclude that ambiguity about the scope

of a putative or certified class should be resolved in favor of

tolling so that bystander members of the class need not rush

to file separate actions to protect their rights.

Plaintiff-appellant Nicholas DeFries worked as a

conductor for defendant-appellee Union Pacific Railroad

Company. After failing Union Pacific’s routine color-vision

testing, he was routed into Union Pacific’s employee health

screening system, the fitness-for-duty program. In 2018,

DeFries was removed from his job and struggled to obtain a

new position at the company. At the time DeFries was

removed from duty, a putative class action had already been

filed by a group of Union Pacific employees, not including

DeFries, alleging that Union Pacific administered its fitness-

for-duty program in ways that violated the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Harris

DEFRIES V. UNION PAC. R.R. 5

v. Union Pacific Railroad Co., No. 8:16-cv-381 (D. Neb.)

(“the Harris class”).

The parties agree that plaintiff DeFries qualified as a

putative class member under the class definition alleged in

the original Harris complaint. But in a later motion for class

certification, Harris class counsel narrowed the proposed

class definition. The revised definition covered “All

individuals who have been or will be subject to a fitness-for-

duty examination as a result of a reportable health event at

any time from September 18, 2014 until the final resolution

of this action,” incorporating by reference Union Pacific’s

Medical Rules and its “Reportable Health Events” policy.

The Harris district court (“the Nebraska court”) certified the

narrowed class in February 2019. Harris v. Union Pacific

Railroad Co., 329 F.R.D. 616, 628 (D. Neb. 2019). In March

2020, however, the Eighth Circuit reversed class

certification for lack of commonality. Harris v. Union

Pacific Railroad Co., 953 F.3d 1030, 1032 (8th Cir. 2020).

Shortly after the Eighth Circuit’s decision, DeFries filed

this individual lawsuit in the District of Oregon, raising

claims parallel to the class claims in Harris. Union Pacific

moved for summary judgment, arguing that DeFries’ claims

were barred by the statute of limitations. Anticipating the

American Pipe tolling issue, Union Pacific argued that the

narrowed class definition certified by the Nebraska court had

unambiguously excluded color-vision plaintiffs like

DeFries.1 DeFries had been placed in the fitness-for-duty

1

The term “color-vision plaintiff” refers to a plaintiff who “underwent a

fitness-for-duty evaluation solely because he failed the visual acuity test

required by the Federal Railroad Administration recertification process.”

DeFries v. Union Pacific Railroad Co., No. 3:21-cv-00205-SB, 2023

WL 1777635, at *2 (D. Or. Feb. 6, 2023).

6 DEFRIES V. UNION PAC. R.R.

program solely because he failed routine color-vision testing

required by the Federal Railroad Administration (“FRA”).

Union Pacific argued that failing a routine regulatory exam

did not satisfy its definition of a “reportable health event” on

the theory that those employees experienced no new

diagnosis or change in their color vision. Consequently,

Union Pacific argued, American Pipe tolling ended for

color-vision plaintiffs in August 2018, when Harris class

counsel moved to certify the class using the narrower

definition.

Whether the narrowed class definition included or

excluded color-vision plaintiffs like DeFries is the central

question of this appeal. The district court accepted Union

Pacific’s argument and granted summary judgment, finding

that color-vision plaintiffs’ American Pipe tolling ended

when the class definition was voluntarily narrowed by

plaintiffs’ counsel. The district judge in Oregon adopted a

magistrate judge’s recommendation that tolling ended on

August 17, 2018, the day class counsel moved for a narrower

definition. The magistrate judge also noted that even if

tolling had ended only when the Nebraska court accepted

this narrower definition by certifying the class on February

5, 2019, plaintiff DeFries’ claim would still be untimely.

DeFries v. Union Pacific Railroad Co., No. 3:21-cv-00205-

SB, 2022 WL 18936061, at *5 n.6 (D. Or. Nov. 23, 2022),

report and recommendation adopted, No. 3:21-CV-00205-

SB, 2023 WL 1777635 (D. Or. Feb. 6, 2023). DeFries has

appealed.

We proceed as follows. Because the end of American

Pipe tolling has received no attention from the Supreme

Court and little attention from the circuit courts, we first

explain in Part I the origins and equities of American Pipe

tolling. In light of both the purposes of American Pipe

DEFRIES V. UNION PAC. R.R. 7

tolling and the guidance available from other circuits, we

conclude that a relevant ambiguity in the scope of a class

definition should be resolved in favor of allowing a

bystander plaintiff to rely on American Pipe tolling. We

then turn in Part II to the factual and procedural details of

this case. We set out the standard of review in Part III, and

in Part IV, we apply the rule to this case. While we believe

the better reading of the definition of the certified Harris

class included color-vision plaintiffs like DeFries, we

recognize that there is room for reasonable argument to the

contrary. Because a relevant ambiguity in the scope of the

class should allow bystander plaintiffs to rely on American

Pipe tolling, DeFries was entitled to tolling as a member of

the Harris class until the Eighth Circuit issued the mandate

for its decision reversing class certification. DeFries’ case is

timely.

I. The Origins and Equities of American Pipe Tolling

American Pipe established that “commencement of a

class action suspends the applicable statute of limitations as

to all asserted members of the class who would have been

parties had the suit been permitted to continue as a class

action.” 414 U.S. at 554. “Once the statute of limitations

has been tolled, it remains tolled for all members of the

putative class until class certification is denied.” Crown,

Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 354 (1983).

“At that point, class members may choose to file their own

suits or to intervene as plaintiffs in the pending action.” Id.

American Pipe tolling is “a rule based on traditional

equitable powers, designed to modify a statutory time bar

where its rigid application would create injustice.”

California Public Employees’ Retirement System v. ANZ

Securities, Inc., 582 U.S. 497, 510 (2017). “The watchwords

8 DEFRIES V. UNION PAC. R.R.

of American Pipe are efficiency and economy of

litigation . . . .” China Agritech, Inc. v. Resh, 584 U.S. 732,

748 (2018). The doctrine is intended to further both “the

principal function of a class suit” and the “functional

operation of a statute of limitations.” American Pipe, 414

U.S. at 551, 554. A class action is intended to function as “a

truly representative suit designed to avoid, rather than

encourage, unnecessary filing of repetitious papers and

motions.” Id. at 550. To promote the purposes of class

actions, American Pipe tolling must enable class members to

rely on class counsel and the district court to represent their

interests without the need to seek to intervene or file

individual suits.

Meanwhile, the purposes of statutes of limitations are “to

put defendants on notice of adverse claims and to prevent

plaintiffs from sleeping on their rights.” Crown, Cork &

Seal, 462 U.S. at 352. American Pipe tolling begins upon

the filing of a putative class action complaint, which

“commences a suit and thereby notifies the defendants not

only of the substantive claims being brought against them,

but also of the number and generic identities of the potential

plaintiffs who may participate in the judgment.” American

Pipe, 414 U.S. at 555. Alerted by the complaint, a class-

action defendant has “the essential information necessary to

determine both the subject matter and size of the prospective

litigation,” id., and to become “aware of the need to preserve

evidence and witnesses respecting the claims of all the

members of the class,” Crown, Cork & Seal, 462 U.S. at 353.

Upon the filing of a class action complaint, the fair-

notice purpose of statutes of limitations is satisfied “as to all

those who might subsequently participate in the suit as well

as for the named plaintiffs.” American Pipe, 414 U.S. at

551; see also Crown, Cork & Seal, 462 U.S. at 355 (Powell,

DEFRIES V. UNION PAC. R.R. 9

J., concurring) (“When thus notified, the defendant normally

is not prejudiced by tolling of the statute of limitations.”).

Consequently, for purposes of American Pipe tolling, “the

claimed members of the class [stand] as parties to the suit

until and unless” they opt out or class certification is denied.

American Pipe, 414 U.S. at 551.

The end of American Pipe tolling is less clear-cut than

its beginning. The problem has split many district courts,

including those addressing the same Harris class action

against Union Pacific. See Zaragoza v. Union Pacific

Railroad Co., 606 F. Supp. 3d 427, 435 (W.D. Tex. 2022)

(“Broadly speaking, this is a difficult issue that has divided

courts for decades.”). One line of cases attempts to establish

a rule for determining when the voluntary abandonment of a

claim by class counsel ends tolling for all class members on

that particular claim. Id. at 434 (outlining two competing

approaches to issue). This appeal concerns a distinct

question: how should courts determine when the narrowing

of a class definition by class counsel or a district court ends

American Pipe tolling for particular members of the putative

or certified class. Only two federal circuits have expressly

considered these narrower issues in precedential opinions.

We review those two opinions next.

A. Other Circuits on Ending American Pipe Tolling

The Tenth and Fourth Circuits addressed how to

determine the end of American Pipe tolling when the scope

of a class definition is contested in Sawtell v. E.I. du Pont de

Nemours & Co., Inc., 22 F.3d 248, 252–54 (10th Cir. 1994),

and Smith v. Pennington, 352 F.3d 884, 892–96 (4th Cir.

2003).

In Sawtell, the Tenth Circuit held that a plaintiff in a

product liability action was not entitled to American Pipe

10 DEFRIES V. UNION PAC. R.R.

tolling and therefore affirmed dismissal of her claim as time-

barred. 22 F.3d at 254. The plaintiff was a New Mexico

resident and had filed her claim under New Mexico law. She

sought American Pipe tolling based on three putative class

actions filed in Minnesota, arguing that she was a putative

class member entitled to tolling under the broad class

definitions from both the initial complaints in Minnesota and

the motions for class certification filed a month later. Id. at

250, 253.

Disagreeing with the New Mexico plaintiff’s

interpretations of the class definitions, the Tenth Circuit

found that the evidence before it indicated the class “was

intended to be Minnesota residents only.” Id. at 253.

Specifically, the court noted that the suits “were initiated

within the Minnesota state court system and pursuant to the

Minnesota class action statute,” and “did not specify a

national class.” Id. The court added: “Although the

complaints filed in the Minnesota class actions were broad

in their descriptions of the class,” the plaintiffs’ motions for

class certification a month later made “the narrowness of the

class definitions . . . clear. The plaintiffs moved to certify

classes of ‘those who received the [allegedly defective

product] in Minnesota.’” Id.

Against this clear evidence of intent to exclude out-of-

state plaintiffs, including the unambiguous narrowing in the

motion for class certification, the New Mexico plaintiff

“presented no evidence supporting the inference she was a

putative member of the class.” Id. The Tenth Circuit

distinguished a district court decision concluding that the

same class definition was sufficiently ambiguous to extend

American Pipe tolling to an out-of-state plaintiff for the

month prior to clarifying class certification motions. Id. at

253 n.11. That conclusion, explained the Tenth Circuit, had

DEFRIES V. UNION PAC. R.R. 11

been based on “different evidence” that was not part of the

record in Sawtell. Id. (distinguishing Ganousis v. E.I. du

Pont de Nemours & Co., 803 F. Supp. 149 (N.D. Ill. 1992)).

The Tenth Circuit’s more limited evidentiary record showed

unambiguously that the New Mexico plaintiff had never

been included in the proposed class. Sawtell, 22 F.3d at 253.

The Tenth Circuit thus affirmed the denial of American Pipe

tolling for the New Mexico plaintiff. Id. at 254. The court

also noted that, even if the New Mexico plaintiff had been

arguably included in the Minnesota complaint’s class

definition before the clarifying class certification motion,

one additional month of tolling would not have made a

difference. Id. at 253 n.11.

In the Fourth Circuit case, Pennington, would-be

intervenors with securities-law claims invoked American

Pipe tolling based on their purported inclusion within a class

definition. 352 F.3d at 886. The Fourth Circuit had to

“decide whether, and to what extent, evidence outside of the

complaint can be used to construe a definition of a plaintiff’s

asserted class that is more narrow than what the complaint

alone would dictate for the purposes of determining a party’s

entitlement to tolling.” Id. at 891. The court decided that it

was not “confined to examine only the complaint in

determining the scope of the class [plaintiffs] sought to

certify.” Id. at 893 (emphasis in original). Instead, “[t]he

scope of a plaintiff’s asserted class for tolling purposes is

that class for which” the purpose of the statute of limitations

has been satisfied: the defendant had fair notice as to the

substantive claims, number, and generic identities of the

potential plaintiffs. Id. “In performing this analysis, we can

consider evidence outside of the complaint that demonstrates

the extent of the class the plaintiff represented to the district

court that he desired to have certified—especially when the

12 DEFRIES V. UNION PAC. R.R.

complaint itself is unclear.” Id. Looking to Sawtell, the

Pennington court wrote that, “when a plaintiff moves for

class certification by asserting an unambiguous definition of

his desired class that is more narrow than is arguably dictated

by his complaint, his asserted class for tolling purposes may

be limited to that more narrow definition.” Id. at 894.

Ultimately, the Fourth Circuit found that class counsel, on

behalf of the plaintiff, had “unequivocally” maintained a

narrow class definition for at least a year after filing the

original complaint. Id. at 894. Because the would-be

intervenors sought American Pipe tolling for a period that

postdated adoption of the unambiguously narrowed

definition, the court affirmed the district court’s denial of

tolling. Id. at 895–96.

The key lesson we draw from Pennington and Sawtell is

that to end American Pipe tolling, the exclusion of a plaintiff

from a revised class definition must be “unambiguous.” 352

F.3d at 894. Where the scope of the class definition in an

initial complaint “arguably” includes particular bystander

plaintiffs, they remain entitled to American Pipe tolling

unless and until a court accepts a new definition that

unambiguously excludes them.

B. Ambiguity and Ending American Pipe Tolling

American Pipe tolling strikes a balance among the

efficiency gains of class actions, the procedural due process

rights of class-action plaintiffs, and the fair-notice rights of

class-action defendants. To maintain this balance, we must

attend to the choices that confront bystander plaintiffs like

DeFries. Specifically, the tolling rule must clearly instruct

bystander plaintiffs that they need not intervene or file

independent actions and can instead wait and rely on class

counsel and the district court to protect their interests. To

DEFRIES V. UNION PAC. R.R. 13

accomplish the purpose of American Pipe tolling, bystander

plaintiffs should be able to take that passive approach unless

and until an unambiguous action removes them from the

putative or certified class.

Ending American Pipe tolling with anything short of

unambiguous narrowing would undermine the balance

contemplated by the Supreme Court. It would encourage

putative or certified class members to rush to intervene as

individuals or to file individual actions. To preserve their

right to pursue their individual claims after a potential

narrowing, bystander plaintiffs would have to follow the

class action closely, looking for any change in the class

definition and carefully parsing what it might mean.

That approach would, of course, often require individual

plaintiffs to consult attorneys to ensure that they understand

their rights as the class action litigation proceeds. In the

many class actions that offer only a small recovery to each

class member, such a requirement would quickly become

financially unreasonable. “[P]otential absent class members

will only be able to alert the court to their exclusion if they

have knowledge of the pendency of the action, access to

legal representation to present their claims, and claims

sufficient in size to justify the expense of such

representation.” Nancy Morawetz, Underinclusive Class

Actions, 71 N.Y.U. L. Rev. 402, 404–05 (1996). Finding

counsel to pursue individual claims after a class action is

narrowed may be difficult or impossible for many plaintiffs.

Id. at 422 (“Even when the excluded class members retain

the theoretical right to sue, it may be difficult for those who

were excluded to find counsel to pursue relief. . . . There

simply may not be another private attorney willing to take

on the case of those who were left out of the case.” (footnotes

omitted)).

14 DEFRIES V. UNION PAC. R.R.

If individual claims are large enough to justify counsel

for individual suits (as perhaps with many ADA claims over

lost jobs), the converse problem might arise: “excluded

potential class members may choose to litigate separately,

thereby leading to duplicative litigation.” Id. at 405. If

bystander plaintiffs’ inclusion in the class were even

potentially ambiguous, they would need to intervene or file

their own individual suits to assert timely claims. Such

duplicative filings would “frustrate the principal function”

of a class action by encouraging the “unnecessary filing of

repetitious papers and motions,” the very “multiplicity of

activity which Rule 23 was designed to avoid.” American

Pipe, 414 U.S. at 550–51. That is why Rule 23 “both permits

and encourages class members to rely on the named

plaintiffs to press their claims.” Crown, Cork & Seal, 462

U.S. at 352–53. Class members have no “duty to take note

of” a potential class suit, “or to exercise any responsibility

with respect to it in order to profit from the eventual outcome

of the case” before class notice has been sent. American

Pipe, 414 U.S. at 552. A sound approach to the end of

American Pipe tolling thus should allow putative class

members to rely passively on class counsel when confronted

with ambiguous class definitions so that a class action may

continue to function as a “truly representative suit.” See id.

at 550.

In sum, we conclude that to end American Pipe tolling

for a particular bystander plaintiff based on a revised class

definition, a court must adopt a new definition that

“unambiguously” excludes that bystander plaintiff. See

Pennington, 352 F.3d at 894. Ambiguity in the scope of the

class definition should be resolved in favor of continuing to

extend American Pipe tolling to members of the putative or

certified class. We now apply this approach to this case.

DEFRIES V. UNION PAC. R.R. 15

II. Factual and Procedural Background

A. DeFries’ Employment History & Color-Vision

Testing

Plaintiff DeFries worked for Union Pacific for fourteen

years as a railroad conductor. This is a safety-sensitive

position governed by FRA regulations. Conductors must

pass routine, periodic color-vision screening tests to be

recertified for their positions. These regulations are

important for safe and effective use of colored railroad

signals in directing trains.

In accordance with FRA regulations, Union Pacific uses

a two-stage color-vision screening protocol. First, it subjects

employees to a widely accepted color-vision acuity

examination known as the Ishihara test.2 Second, employees

who fail the Ishihara test are subject to an additional color-

vision “field test.” The regulations give the FRA or the

railroad discretion to further evaluate employees who fail the

initial Ishihara test using a secondary field test to determine

if they can satisfy the FRA’s color-vision standards.

In 2012, a locomotive engineer misidentified a signal

due to a color-vision deficiency and caused a fatal head-on

collision between two Union Pacific freight trains. After the

accident, the National Transportation Safety Board criticized

Union Pacific’s color-vision testing program and

recommended improvements. In 2014, Union Pacific began

making major changes to its internal “fitness-for-duty”

2

The Ishihara test relies on a series of numbers or other images

embedded in dot patterns, with the numbers or images distinguishable

from the surrounding dots only by color contrast. A person with normal

color vision should be able to identify the embedded numbers or images.

Failing to discern the number or image indicates color-vision problems.

16 DEFRIES V. UNION PAC. R.R.

program, modifying its Medical Rules so that employees in

safety-sensitive positions suspected of having certain

medical or physical conditions could be suspended from

work without pay, required to undergo further evaluation,

and, frequently, restricted altogether from work with the

company. These changes included an update to the “field

test” portion of Union Pacific’s color-vision testing protocol.

After 2014, Union Pacific adopted a new, proprietary “Light

Cannon” color-vision field test that the company had

developed in-house.

As an employee of Union Pacific in a safety-sensitive

position subject to FRA regulations, DeFries had been

subjected to repeated color-vision testing. He had failed the

Ishihara test at least three times during his employment with

Union Pacific. On prior occasions, he had passed the follow-

up field test designed by Union Pacific to match his everyday

working conditions, so he had been able to continue

working. DeFries had no safety incidents during his

employment at Union Pacific.

In 2018, after Union Pacific changed its fitness-for-duty

program, DeFries was again subject to an Ishihara test under

Union Pacific’s routine regulatory color-vision testing

requirements. He failed it again. Union Pacific then

required him to take the new “Light Cannon” field test.

DeFries failed that test. He was then routed into the fitness-

for-duty program. Union Pacific’s chief medical officer

diagnosed him with a “Color Vision Deficit” that the

company found could not be accommodated. As a result,

DeFries was removed from his job as a conductor, and Union

Pacific imposed permanent work restrictions that barred him

from working any position that required the identification of

traffic signals. DeFries tried to find other positions within

DEFRIES V. UNION PAC. R.R. 17

the company but was unsuccessful. Union Pacific’s

permanent work restrictions on him have remained in place.

B. ADA Challenges to the Fitness-for-Duty Program

Since 2014, when Union Pacific updated its fitness-for-

duty program, several thousand employees have suffered

adverse employment actions because of the program. In

2016, several of those employees (not including DeFries)

filed a class-action lawsuit against Union Pacific alleging

that the company discriminated against employees with

disabilities and perceived disabilities in violation of the

ADA. Harris v. Union Pacific Railroad Co., No. 8:16-cv-

381 (D. Neb.); see 42 U.S.C. § 12112(a), (b)(6). The Harris

plaintiffs argued that the fitness-for-duty policies screened

qualified individuals with disabilities out of Union Pacific’s

workforce “even though, they argue, they had no trouble

fulfilling the essential functions of their jobs.” Harris, 329

F.R.D. at 620.

The claims centered on the changes Union Pacific made

to its fitness-for-duty program in 2014. The company

decided that workers with a wide range of medical

conditions posed an unacceptable safety risk to the company.

Plaintiffs alleged that the company instructed a small team

of doctors and nurses to implement standardized policies to

screen those workers out of many jobs. Id. The company

required workers to disclose any “Reportable Health Event,”

defined as “any new diagnosis, recent events, and/or change”

in a specified list of conditions, which included “significant

vision . . . changes.” If a worker disclosed such an event or

condition, or if Union Pacific came to suspect one on its

own, the employee was suspended from work and routed

into a fitness-for-duty evaluation. During the evaluations,

the company’s medical team collected information about the

18 DEFRIES V. UNION PAC. R.R.

workers and relied on broad, population-based risk

assessments to make final judgments as to whether the

workers would be permitted to perform their roles. Id. at

623. The result, the Harris plaintiffs alleged, was that a large

group of Union Pacific employees who were “qualified and

performing their jobs with no problems” were nonetheless

“pulled from their jobs” and left with no recourse. Id. at

620–21, 623.

C. Harris Class Certification Granted and Reversed

The parties agree that the Harris class, as defined in the

operative amended complaint, included color-vision

plaintiffs like DeFries. The class was defined as:

Individuals who were removed from service

over their objection, and/or suffered another

adverse employment action, during their

employment with Union Pacific for reasons

related to a Fitness-for-Duty evaluation at

any time from 300 days before the earliest

date that a named Plaintiff filed an

administrative charge of discrimination to the

resolution of this action.

Plaintiffs alleged disparate treatment claims on behalf of the

class under the ADA, arguing that Union Pacific’s fitness-

for-duty program discriminated against people with

disabilities in violation of section 12112(a) and (b)(6) of the

ADA.

As discovery began, Union Pacific argued that this

proposed class definition was overbroad because it “could

arguably include anyone who was pulled from service

temporarily for a regulatory vision or hearing examination—

DEFRIES V. UNION PAC. R.R. 19

a total of more than 191,000 employees.” Union Pacific

argued that the class should include only “fitness-for-duty

evaluations related to Reportable Health Events,” also

phrased as “FFD evaluations initiated because of a

Reportable Health Event.”

When the named plaintiffs moved for class certification,

they proposed a narrower definition of the proposed class:

“All individuals who have been or will be subject to a

fitness-for-duty examination as a result of a reportable health

event at any time from September 18, 2014 until the final

resolution of this action.” The plaintiffs explained to the

court that their definition was intended to correspond to “the

list of over 7,000 individuals that [Union Pacific] identified

in discovery.”

The Nebraska court granted class certification on this

narrowed definition of the class. Harris v. Union Pacific

Railroad Co., 329 F.R.D. at 628. In granting class

certification, the court “approve[d]” sending notice to the

“class list” “given to plaintiffs by Union

Pacific . . . identif[ying] a total of 7,723 current and former

employees” that included individuals situated similarly to

DeFries. Id. at 627–28.3

3

On the same day that DeFries’ case was argued, this panel also heard

argument in two other color-vision plaintiffs’ cases. Donahue v. Union

Pacific Railroad Co., No. 22–16847 (9th Cir. argued Feb. 14, 2024);

Blankinship v. Union Pacific Railroad Co., No. 22–16849 (9th Cir.

argued Feb. 14, 2024). One of those plaintiffs, Justin Donahue, had

signed a sworn declaration in support of the motion for class certification

later considered by the Nebraska court in its decision to certify the class.

Harris, 329 F.R.D. at 624 n.3. The plaintiffs in both of those cases

appeared on the 7,723-person class list produced by Union Pacific in

discovery, which is part of the record in each case. As DeFries explains

in his briefs, he was not included on the class list only because it was

20 DEFRIES V. UNION PAC. R.R.

Union Pacific appealed the class certification to the

Eighth Circuit, arguing that the certified class totaled more

than 7,000 workers who had experienced a “broad[] universe

of conditions or events” ranging from those who “suffered a

stroke” to others who “experienced vision deficiencies.” In

its appeal, Union Pacific argued that the class was too broad,

in part, because it included employees who had a diverse

range of conditions including vision deficiencies, citing the

declaration of at least one color-vision plaintiff. On March

24, 2020, the Eighth Circuit reversed the district court,

decertifying the class. Harris, 953 F.3d at 1032. The Eighth

Circuit agreed with Union Pacific that, due in part to the

variety of disabilities and health conditions within the class

definition, the class should be decertified for a lack of both

cohesiveness among the class and predominance of common

questions of law or fact. Id. at 1036–38. Upon

decertification, American Pipe tolling ended for all putative

members of the Harris class, including color-vision

plaintiffs, when the Eighth Circuit issued its mandate for its

decertification decision. That started or restarted the statute-

of-limitations clocks for their individual claims against

Union Pacific.

D. DeFries’ Individual Suit

After the Eighth Circuit’s decision, DeFries promptly

filed an individual charge with the EEOC raising the same

claims as the Harris class. Within 90 days after the EEOC

completed its review of his case, he filed this individual

action in federal district court.

produced in discovery by Union Pacific on February 26, 2018, before

DeFries failed the company’s color-vision testing and was routed into a

fitness-for-duty evaluation. He is otherwise situated identically to

Donahue and Blankinship.

DEFRIES V. UNION PAC. R.R. 21

In its motion for summary judgment in DeFries’

individual case, Union Pacific argued that DeFries’ claims

were untimely on the theory that the narrowed Harris class

definition proposed by counsel and adopted by the district

court had unambiguously excluded color-vision plaintiffs.

As this theory went, DeFries had not experienced “any

change in his color vision (or even a new medical condition

that might have indirectly impacted his color vision).”

DeFries admitted that “he was aware of his color vision

deficiencies from a young age.” Union Pacific administered

color-vision testing not “because of any perceived change in

Plaintiff’s condition; instead, it did so to comply with the

FRA’s regulations regarding conductor certification.”

Union Pacific’s theory was that DeFries did not “experience

the necessary ‘reportable health event’ to fall within the

Harris class definition,” so “he was not a putative member.”

On that theory, Union Pacific argued, American Pipe tolling

ended for DeFries on August 17, 2018, when Harris class

counsel moved to certify the narrower class (or when the

Nebraska district court adopted that definition). DeFries did

not file his EEOC charge until April 2020, well outside the

ADA’s usual 300-day limit for filing an EEOC charge,

rendering it untimely.

The district court accepted Union Pacific’s argument on

this point. The court granted summary judgment to Union

Pacific, holding that DeFries’ American Pipe tolling ceased

when counsel voluntarily narrowed the class definition. To

resolve DeFries’ case, the district court looked to two earlier

decisions by other district courts that had already considered

American Pipe tolling with respect to color-vision plaintiffs,

appeals of which were argued before this panel along with

this case: Blankinship v. Union Pacific Railroad Co., No. 21-

cv-00072- RM, 2022 WL 4079425 (D. Ariz. Sept. 6, 2022),

22 DEFRIES V. UNION PAC. R.R.

appeal docketed, No. 22–16849 (9th Cir. argued Feb. 14,

2024), and Donahue v. Union Pacific Railroad Co., No. 21-

cv-00448-MMC, 2022 WL 4292963 (N.D. Cal. Sept. 16,

2022), appeal docketed, No. 22–16847 (9th Cir. argued Feb.

14, 2024).

All three district courts relied on the Tenth and Fourth

Circuit opinions discussed above, Sawtell and Pennington.

And all three courts looked primarily to the text of the

narrowed class definition and the definition of “reportable

health events” incorporated by reference from Union

Pacific’s Medical Rules. The court here accepted Union

Pacific’s argument that

DeFries was not a member of the class the

Harris plaintiffs sought to, and ultimately

did, certify, because he was not subject to a

Fitness-for-Duty examination ‘as a result of a

reportable health event.’ Rather, . . . he was

subject to the examination to ‘recertify as a

conductor.’ Further, the record demonstrates

that DeFries was aware he had color vision

deficiency at a young age, many years prior

to his employment with Union Pacific. Thus,

DeFries’s color vision acuity was not a new

diagnosis, recent event, or change in

condition, and therefore he did not

experience a ‘reportable health event’ as

defined by the Harris plaintiffs.

DeFries, 2022 WL 18936061, at *4 (internal citations

omitted). Relying on this textual analysis, the district court

agreed with the district courts in Blankinship and Donahue

that the narrowed class definition excluded color-vision

DEFRIES V. UNION PAC. R.R. 23

plaintiffs, meaning American Pipe tolling ended for DeFries

either upon class counsel’s certification motion or upon the

district court’s grant of class certification. Either way, all of

DeFries’ ADA claims were found to be time-barred.

The district court also rejected DeFries’ arguments,

supported by extratextual evidence, that neither class

counsel nor the Nebraska court understood or intended the

narrower class definition to exclude these color-vision

plaintiffs. In addition, the district court rejected DeFries’

argument that Union Pacific had admitted color-vision

plaintiffs were members of the certified Harris class during

its successful arguments to the Eighth Circuit that the class

should be decertified for a lack of commonality.4

III. Standard of Review

We review a district court’s grant of summary judgment

de novo. Simmons v. G. Arnett, 47 F.4th 927, 932 (9th Cir.

2022). We take the evidence in the light most favorable to

the non-moving party to determine whether there are any

4

After the Eighth Circuit’s decertification of the Harris class, several

federal courts have been presented with similar questions about the end

of American Pipe tolling based on voluntary actions of class counsel.

See Zaragoza v. Union Pacific Railroad Co., 657 F. Supp. 3d 905, 913

(W.D. Tex. 2023) (tolling ended for color-vision plaintiffs when class

definition was narrowed), appeal docketed, No. 23-50194 (5th Cir. Mar.

20, 2023); DeGeer v. Union Pacific Railroad Co., No. 8:23-cv-10, 2023

WL 4535197, at *6 (D. Neb. June 21, 2023) (same), appeal docketed,

No. 23-2625 (8th Cir. July 13, 2023); Bland v. Union Pacific Railroad

Co., No. 4:17-cv-705-SWW, 2019 WL 2710802, at *1 (E.D. Ark. June

27, 2019) (order denying a motion to stay pending resolution of the

Harris class, though case was later dismissed with prejudice by

stipulation; court accepted as undisputed that a color-vision plaintiff was

a member of the Harris class prior to opting out). We appear to be the

first court of appeals to decide this question.

24 DEFRIES V. UNION PAC. R.R.

genuine issues of material fact and whether the district court

correctly applied the relevant substantive law. L.F. v. Lake

Washington School District #414, 947 F.3d 621, 625 (9th

Cir. 2020). Appellate review is limited to the record

presented to the district court at the time of summary

judgment. National Steel Corp. v. Golden Eagle Insurance

Co., 121 F.3d 496, 500 (9th Cir. 1997).

IV. Discussion

For the reasons explained above, our task is to determine

whether color-vision plaintiffs like DeFries were

unambiguously excluded from the narrowed Harris class

definition certified by the Nebraska court. We look first to

the text of the revised definition. We conclude that the

definition was ambiguous, but that the better reading

included color-vision plaintiffs. Looking beyond the text of

the definition to documents from the Harris litigation

confirms our interpretation by demonstrating that neither the

Nebraska court nor the parties understood the revision to

have eliminated color-vision plaintiffs from the class. Only

once the class was decertified was DeFries unambiguously

excluded from class coverage.

Accordingly, DeFries was entitled to equitable tolling of

his claims from the period between the filing of the Harris

complaint on February 19, 2016, and the Eighth Circuit’s

decertification of the class when it issued its mandate after

its March 24, 2020 opinion.

We begin by looking to the text of the revised class

definition, which the district court interpreted to exclude

color-vision plaintiffs on the theory that they were subjected

to fitness-for-duty examinations as a result of FRA-required

routine color-vision testing rather than as a result of a

“reportable health event.” DeFries, 2023 WL 1777635, at

DEFRIES V. UNION PAC. R.R. 25

*1–3. We respectfully disagree and conclude that the

revised definition was, at best, ambiguous with respect to

plaintiffs like DeFries. Looking to Union Pacific’s Medical

Rules, which were incorporated by reference into the class

definition, we conclude that individuals who were subjected

to a fitness-for-duty examination as a result of failing FRA-

required color-vision testing probably were included in the

class definition as certified.

We begin by setting out the text of the relevant

definitions. The original class definition contained in the

Harris complaint defined the class as:

Individuals who were removed from service

over their objection, and/or suffered another

adverse employment action, during their

employment with Union Pacific for reasons

related to a Fitness-for-Duty evaluation at

any time from 300 days before the earliest

date that a named Plaintiff filed an

administrative charge of discrimination to the

resolution of this action.

Union Pacific agrees that color-vision plaintiffs like DeFries

were covered by this definition.

In the motion for class certification, however, Harris

class counsel narrowed the definition to the following: “All

individuals who have been or will be subject to a fitness-for-

duty examination as a result of a reportable health event at

any time from September 18, 2014 until the final resolution

of this action.” All parties agree that the term “reportable

health event” refers to Union Pacific’s “Medical Rules,” a

policy document incorporated by reference into the Harris

class plaintiffs’ and DeFries’ complaints. The Reportable

26 DEFRIES V. UNION PAC. R.R.

Health Events policy states that every employee in a safety-

sensitive position “must report to Health and Medical

Services any new diagnosis, recent events, and/or change in

the following conditions.” The list of conditions includes

“Significant Vision or Hearing Change including . . . Significant

vision change in one or both eyes affecting . . . color vision.”

The district court’s narrow reading of “reportable health

events” to exclude plaintiffs who failed Union Pacific’s

routine color-vision testing is not obviously consistent with

the text of Union Pacific’s Medical Rules. The court’s

analysis incorporated an implicit assumption that, to qualify

as a “reportable health event,” the required “vision change”

must be a deterioration or other physical change in the

employee’s color vision. On closer inspection, the definition

can also apply to an employee’s failure of a vision test as a

“recent event,” which qualifies as a reportable health event

whether or not the failure accompanies some deterioration or

other physical change in the employee’s vision.

First, limiting a reportable health event to a deterioration

or other physical “change” in a listed condition is not

consistent with the definition’s inclusion “of any new

diagnosis, recent events, and/or change,” since that limit

would render mere surplusage the categories of “new

diagnosis” and “recent events.” The listed condition

relevant here, “[s]ignificant vision change in one or both

eyes affecting . . . color vision,” embeds an additional

requirement that a change must have taken place. But

reading the Reportable Health Events policy as a whole, it

can indicate that Union Pacific seeks to obtain reports not

only of physical changes in health conditions, but also of

changes in a health care provider’s or patient’s knowledge

and awareness of health conditions. This, after all, is the

ordinary meaning of a “diagnosis,” one of the three

DEFRIES V. UNION PAC. R.R. 27

categories of events Union Pacific requires its employees to

report. Thus, the definition’s requirement of a “[s]ignificant

vision change” is better read to extend to health events that

affect only an employee’s or a medical provider’s awareness

of the employee’s physical status, without requiring a

concurrent physical change. Indeed, other “reportable health

events” expressly enumerated by Union Pacific in its

Medical Rules include “Diagnosis of epilepsy,” “Treatment

with anti-seizure medication,” and “Diagnosis or treatment

of severe obstructive sleep apnea.” None of these

“reportable health events” requires any deterioration or other

physical change in a pre-existing condition. Change in the

employee’s knowledge or awareness of a condition is

sufficient.

In addition, Union Pacific’s inclusion of the category of

“recent events” in its definition should be read to capture

events that were neither a “new diagnosis” nor a “change” in

one of the listed conditions. Common sense teaches that a

safety-sensitive employee’s failure of a color-vision test is

the archetype of a “recent event” covered by this category of

Union Pacific’s definition. The purpose of Union Pacific’s

FRA-required color-vision testing protocol is to detect either

previously unknown or unreported color blindness in

employees holding safety-sensitive positions. Detection of

a previously unknown or unreported medical condition is the

ordinary meaning of a “diagnosis.” Though Union Pacific’s

color-vision testing program does not itself result in a formal

diagnosis of color-blindness from a private medical doctor,

failure of these tests is an event sufficiently akin to a formal

diagnosis that Union Pacific automatically routes anyone

who fails this FRA-required testing into a fitness-for-duty

examination and labels them as having a “Diagnosis” of

“Color Vision Deficit.” Failure of an Ishihara test is exactly

28 DEFRIES V. UNION PAC. R.R.

the sort of “recent event” that the company would want to

know about under its “reportable health events” policy.

Suppose a Union Pacific conductor or engineer failed an

Ishihara test at a routine private doctor’s appointment

unrelated to any required regulatory testing, and then failed

to report this failure to Union Pacific. Suppose further that

this employee’s color-vision deficiency later resulted in a

railroad accident. When it came to light that the employee

in such a safety-sensitive position had failed an Ishihara test

but failed to report it, Union Pacific would surely contend

that the employee had violated its Reportable Health Events

policy requiring him to report any “recent event” in the

condition of a “Significant vision change . . . affecting . . . color

vision.” The failure of a test meant to detect color-blindness

is the kind of health-related event that the railroad would

want to know about. By trying to treat the failure of an

Ishihara test undertaken through its own internal color-

vision testing program as though it were not a “reportable

health event” for purposes of invoking the statute of

limitations here, Union Pacific seems to be trying to have its

cake and eat it, too.

Finally, nothing in Union Pacific’s definition excludes a

discovery of a medical condition from being a “reportable

health event” simply because the discovery is made

internally by the company itself. The district court here

addressed cases where a Union Pacific supervisor referred

an employee for a fitness-for-duty evaluation because the

supervisor observed behavior leading him or her to suspect

that that the employee had an unknown or unreported

medical condition. The district court said that an employee

routed into the fitness-per-duty program based on a

supervisor’s request would fall within the narrowed class

definition of having experienced a “reportable health event.”

DEFRIES V. UNION PAC. R.R. 29

DeFries, 2023 WL 1777635, at *2 (distinguishing Campbell

v. Union Pacific Railroad Co., No. 4:18-cv-00522-BLW,

2021 WL 1341037, at *5 (D. Idaho Apr. 9, 2021) and Munoz

v. Union Pacific Railroad Co., 2022 WL 4348605, at *9 (D.

Or. Aug. 9, 2022), report and recommendation adopted,

2022 WL 4329427 (D. Or. Sept. 16, 2022)). We are inclined

to agree. But if a supervisor’s suspicion that an employee

suffers from unknown or undisclosed color-vision issues

constitutes a “reportable health event,” it is difficult to read

the definition to exclude unknown or undisclosed color-

vision conditions discovered (or suspected) based on failure

of Union Pacific’s internal color-vision testing, whether

routine or triggered by a suspected problem.

For all of these reasons, we believe the better reading of

the definition is that an employee’s failure of Union Pacific’s

color-vision testing protocol is a “reportable health event.”

Under this interpretation of the text of the narrowed Harris

class definition, color-vision plaintiffs like DeFries were

included as members in the Harris class until it was

decertified by the Eighth Circuit.

Still, we appreciate that the district courts in this case and

in Blankinship and Donahue reached a different conclusion.

We believe the disagreement reflects genuine ambiguity in

the scope of the narrowed class definition as applied to the

color-vision plaintiffs. Under our interpretation of American

Pipe, that ambiguity requires reversal of summary judgment

for Union Pacific. As we explained above, a bystander

plaintiff like DeFries is entitled to continued American Pipe

tolling until he is unambiguously excluded from the class.

That happened here only when the Eighth Circuit reversed

30 DEFRIES V. UNION PAC. R.R.

class certification and issued its mandate. Measured from

that event, DeFries’ case is timely.5

In addition to the text of the revised definition, we may

also consider records from the class litigation to the extent

that they illuminate whether the parties and the certifying

court understood the class definition in a way that would

have unambiguously excluded a bystander plaintiff. In this

case, the record includes the following documents from the

Harris record: Union Pacific’s Eighth Circuit opening brief,

its petition to appeal from the order granting class

certification, plaintiffs’ motion for class certification, the

declarations of 44 putative class members submitted in

support of the motion for class certification, plaintiffs’ reply

in support of class certification, plaintiffs’ First Amended

Complaint, excerpts from the deposition testimony of Dr.

Holland (Union Pacific’s Chief Medical Officer) regarding

the definition of “reportable health event,” the 7,723-person

“class list,” and Union Pacific’s response to interrogatories

complaining that the class definition was overbroad.

Together, these documents provide strong evidence that the

revised definition was not understood by the Harris parties

5

We reject Union Pacific’s argument that DeFries waived his argument

that the failure of Union Pacific’s color-vision testing could itself be a

“reportable health event” by failing to raise it in his opposition to

summary judgment. In opposition to summary judgment, DeFries

argued that Union Pacific had admitted that the narrowed Harris class

still included “color-vision plaintiffs” like himself because they “were

subject to a Fitness for Duty evaluation following a reportable health

event.” That event in his case would have been the failure of Union

Pacific’s color-vision testing requirements, and he made the statement in

a section asserting: “The Term ‘Reportable Health Event’ Does not

Require a Change in Health Condition.”

DEFRIES V. UNION PAC. R.R. 31

or the Nebraska court to remove color-vision plaintiffs from

the class.

We begin by considering the evidence regarding the

Nebraska court’s understanding of the class at the time of

certification. When the Nebraska court adopted the

narrower definition, it did not order any special notice to be

sent to the putative class members who Union Pacific claims

were dropped when plaintiffs filed their motion for class

certification. Harris, 329 F.R.D. at 627, 628 (certifying

class under narrowed definition, ordering notice to the class

using 7,723-person class list including color-vision

plaintiffs). The Nebraska court referred to and relied on that

list, which included color-vision plaintiffs, and the court

referred to the declaration of at least one color-vision

plaintiff in its decision to certify the class. Id. at 624, 627 &

n.3.6

The extratextual evidence also indicates that class

counsel did not believe their revised class definition

excluded color-vision plaintiffs from their narrowed class.

Class counsel included Mr. Donahue’s declaration as an

6

Extratextual evidence shows that even Union Pacific itself understood

the class definition to include color-vision plaintiffs. In arguing for

decertification, Union Pacific’s brief to the Eighth Circuit pointed to

“7,000-plus absent class members,” including those who “experienced

vision deficiencies.” It argued that the incoherence of the class was

“illustrated” by the “personal stories” of 44 declarants, including some

who “experienced vision deficiencies.” The 44 declarants included six

color-vision plaintiffs, including the plaintiff in another of our cases,

Donahue. Though DeFries did not raise judicial estoppel expressly, “we

are not bound to accept a party’s waiver of a judicial estoppel argument

and may consider the issue at our discretion.” Kaiser v. Bowlen, 455

F.3d 1197, 1204 (10th Cir. 2006). Because we reverse on other grounds,

we need not address potential judicial estoppel based on Union Pacific’s

successful arguments to the Eighth Circuit.

32 DEFRIES V. UNION PAC. R.R.

exhibit alongside their motion for class certification. Their

motion for class certification referred to and relied on the

7,723-person “class list” that included color-vision

plaintiffs. This means that the plaintiffs in Blankinship and

Donahue would have received the class notice ordered by

the district court. Harris, 329 F.R.D. at 628 (ordering class

notice, though order was stayed upon appeal to the Eighth

Circuit). DeFries was similarly situated. He was not on that

“class list” only because he suffered adverse employment

action after the list was produced in discovery.

Accordingly, the extratextual evidence from the Harris

record shows that neither the Nebraska court, nor class

counsel, nor even Union Pacific understood the Harris class

definition to exclude color-vision plaintiffs. This extratextual

evidence reinforces our conclusion from the text of the class

definition that color-vision plaintiffs were not unambiguously

removed from the Harris class prior to decertification.7

Union Pacific argues that we should affirm the district

court’s grant of summary judgment on alternate, merits-

based grounds that the district court did not reach. We can

affirm on any ground supported by the record so long as the

issue was raised and the non-moving party had a fair

opportunity to contest the issue in the district court. See

Mansourian v. Regents of Univ. of California, 602 F.3d 957,

7

In addressing evidence beyond the text of the relevant class definitions

here, we do not mean to imply that a class-action defendant may rely on

such evidence to resolve ambiguities in the scope of a class definition

and thereby defeat American Pipe tolling. The focus of American Pipe

tolling is on the choices confronting a bystander plaintiff. We do not

mean to imply here that a defendant could show that such a bystander

plaintiff’s decision not to file a separate lawsuit turned out to have been

wrong based on evidence that would not have been readily available to

that bystander at the relevant time.

DEFRIES V. UNION PAC. R.R. 33

974 (9th Cir. 2010) (“Our discretion to affirm on grounds

other than those relied on by the district court extends to

issues raised in a manner providing the district court an

opportunity to rule on it.”); see also Dachauer v. NBTY, Inc.,

913 F.3d 844, 847 (9th Cir. 2019) (“Although the district

court did not reach [an] issue . . . , we may affirm on that

ground because Defendants raised the issue below . . . .”).

Union Pacific’s asserted grounds, which it raised in the

district court, are that DeFries’ ADA claims fail as a matter

of law because (1) DeFries was not a “qualified individual”

due to his color-vision deficiencies, (2) he offers no evidence

that the fitness-for-duty program was a pretext for

discrimination, and (3) Union Pacific acted under the

direction of binding federal regulations.

This court is one of “review, not first view.” Belaustegui

v. Int’l Longshore & Warehouse Union, 36 F.4th 919, 930

(9th Cir. 2022), quoting Shirk v. United States ex rel. Dep’t

of Interior, 773 F.3d 999, 1007 (9th Cir. 2014). The other

issues here require close parsing of a voluminous summary-

judgment record. “In general, an appellate court does not

decide issues that the trial court did not decide,” particularly

where the issue is not a “purely legal one.” Dep’t of Fish &

Game v. Federal Subsistence Board, 62 F.4th 1177, 1183

(9th Cir. 2023) (citations omitted). Union Pacific’s alternate

grounds for summary judgment are deeply fact-bound, and

we do not have the benefit of robust briefing on these issues

on appeal. The district court should consider these

arguments in the first instance.

The judgment of the district court is REVERSED and

REMANDED for further proceedings consistent with this

opinion.