Robert Barnett v. U.S. Air, Inc.

O’SCANNLAIN, Circuit Judge,

with whom Circuit Judges TROTT and KLEINFELD join, dissenting:

The sweeping language and exalted tone of the court’s wide-ranging opinion make clear that it aspires to offer a definitive interpretation of the Americans with Disabilities Act (ADA). This might be less disturbing if this case actually involved an American with a disability. Because the court reaches out to decide several important issues of first impression in a case without a proper plaintiff, I must respectfully dissent.

I

Robert Barnett suffers from back problems. Barnett’s doctor has imposed upon him permanent restrictions that prohibit him from excessive bending, twisting, and turning; prolonged standing or sitting; and lifting twenty-five pounds or more. Barnett claims that these restrictions prevent him from serving in the cargo position but do not prevent him from working in the swing-shift mailroom position. The functions of the mailroom position include occasional bending and frequent twisting and turning; occasional standing or sitting; and some lifting. The crucial limitation imposed upon Barnett, then, is the twenty-five pound lifting restriction, because it is the only restriction that would prevent him from handling cargo, but would not prevent him from working in the mailroom.

The record evidence in this case clearly establishes that Barnett is not disabled within the meaning of the ADA. In Thompson v. Holy Family Hospital, 121 F.3d 537 (9th Cir.1997), we affirmed the summary judgment dismissal of an ADA case on the ground that the plaintiff failed to create a genuine issue of material fact as to her disability. Cynthia Thompson, like Robert Barnett, suffered from back problems, and her doctor, like Barnett’s doctor, prohibited her from lifting more than twenty-five pounds. See id. at 539 . The Thompson court found this limitation inadequate to establish a triable issue as to the plaintiffs disability. Although it acknowledged that lifting and working constitute “major life activities” for purposes of the ADA’s implementing regulations, Thompson’s twenty-five-pound lifting restriction did not constitute “the requisite evidence that she is substantially limited with respect to these activities.” Id. at 539-40 (expressing agreement with “[a] number of courts [that] have held that lifting restrictions similar to Thompson’s are not substantially limiting” (citing cases)). Although Thompson’s lifting restriction prevented her from serving as a nurse performing “total patient care” duties, just as Barnett’s identical lifting restriction prevented him from serving in the cargo position, the panel held that “[t]he inability to perform one particular job does not constitute [a substantial] limitation” on the general ability to work. Id. at 540 .

The similarities between Thompson and the instant case, in terms of both the plaintiffs claimed disabilities and the employer’s responses thereto, are striking. Under Thompson , it is clear that no genuine issue of material fact exists as to Barnett’s disability. The district court’s grant of summary judgment should be affirmed.

II

The court addresses (or dodges) the question whether Barnett is “disabled” un *1124 der the ADA in a footnote, noting in passing that the district court concluded that Barnett was “disabled” under the ADA and that U.S. Air did not raise the issue of Barnett’s disability on appeal. Maj. op. at 1110 n. 1. The failure of U.S. Air to file a cross-appeal, however, in no way precludes us from affirming based on Barnett’s failure to establish that he is disabled. Contrary to the suggestion in that footnote, it is well-settled that we may affirm a grant of summary judgment based on any ground supported by the record. See, e.g., Albertson’s, Inc. v. United Food and Commercial Workers Union, 157 F.3d 758 , 760 n. 2 (9th Cir.1998); Intel Corp. v. Hartford Accident and Indem. Co., 952 F.2d 1551, 1556 (9th Cir.1991). In Intel, the district court granted Intel’s motion for summary judgment, holding, in part, that Hartford, which had issued an insurance policy to Intel, waived its reliance on one of the policy’s exclusions. We affirmed the grant of summary judgment, but on a different ground. We examined the policy’s exclusion, and held that there was no material issue of fact as to the exclusion’s application. See id. at 1561 .

Although U.S. Air did not present the issue of Barnett’s disability (or lack thereof) in a separate appeal, the parties have had more than ample opportunity to brief and to argue the issue in both the district court and this court. Before the district court, U.S. Air argued that Barnett’s lifting restrictions did not render him disabled under the ADA; Barnett opposed granting summary judgment on that basis. In a fairly brief discussion, the district court determined that summary judgment could not be properly granted on the issue because of evidence showing Barnett’s back injury to be “serious and permanent.”

On August 26, 1996, Barnett filed his notice of appeal in our court; U.S. Air did not file a cross-appeal. 1 One year later, on August 8, 1997, we decided Thompson . In our order filed September 16, 1997, we specifically directed the parties to file supplemental briefs discussing Thompson . These briefs were filed in advance of oral argument before the three-judge panel, held on October 8, 1997.

In both the district court and this court, the parties have had the opportunity to develop, and have actually developed, the issue of Barnett’s disability, both before, and in light of, Thompson . As a result, nothing bars us from taking the prudential path and refraining from deciding weighty issues in a weightless case. Cf. Bellotti v. Baird, 428 U.S. 132, 143-44 , 96 S.Ct. 2857 , 49 L.Ed.2d 844 (1976). In Bellotti , the Court held that the district court should have abstained from deciding a constitutional issue, stating that, “It is not entirely clear that appellants suggested the same interpretation in the District Court as they suggest here. Nevertheless, the fact that full arguments in favor of abstention may not have been asserted in the District Court does not bar this Court’s consideration of the issue.” Id. at 143 n. 10, 96 S.Ct. 2857 (internal citation omitted). Cf. Delange v. Dutra Const. Co., 183 F.3d 916 , 919 n. 3 (9th Cir.1999) (recognizing that this circuit may exercise its discretion to review issues raised for the first time on appeal).

III

Barnett’s case simply cannot bear the weight that the court seeks to place upon it. A case so transparently lacking in merit is an inappropriate vehicle for deciding multiple questions of first impression concerning the proper construction of an important statute (and creating a circuit split in the process, see maj. op. at 1118 n. 8). The court has issued what in effect amounts to a lengthy advisory opinion on the ADA; when this case returns to the district court, the only appropriate course of action will be to dispose of it under Thompson .

*1125 Because Barnett is simply not disabled under the ADA, the district court’s grant of summary judgment was proper and should be affirmed. I respectfully dissent.

. The fact that Thompson was decided well after the time for U.S. Air to file a notice of appeal had passed may explain in part U.S. Air’s failure to take a cross-appeal.