James Johnson v. K Mart Corporation

BARKETT, Circuit Judge,

concurring:

I concur in Judge Poliak’s comprehensive opinion and only write to explain why I believe Robinson v. Shell Oil Company, 519 U.S. 337 , 117 S.Ct. 843 , 136 L.Ed.2d 808 (1997) clearly abrogates Gonzales v. Garner Food Services, Incorporated, 89 F.3d 1523 (11th Cir.1996).

A basic proposition in federal law is that an intervening decision of the Supreme Court subjects a prior decision of this Court to reconsideration. See Chambers v. Thompson, 150 F.3d 1324 , 1326 (11th Cir.1998) (“We are bound to follow a prior panel or en banc holding, except where that holding has been overruled or undermined to the point of abrogation by a subsequent en bane or Supreme Court decision.”) (emphasis supplied); Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir. 1997) (“[t]o the extent of any inconsistency between our [prior opinions’] pronouncements and the Supreme Court’s supervening ones, of course, we are required to heed those of the Supreme Court.”); United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993) (recognizing same); Lufkin v. McCallum, 956 F.2d 1104, 1107 (11th Cir.1992) (recognizing same).

On review of Gonzales and Robinson , it is clear that there is more than a minor “inconsistency” between the two cases. As Judge Poliak explains, Robinson explicitly invalidates several of the propositions that informed the Gonzales Court’s conclusion that Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et. seq., only covers former employees. In both Gonzales and Robinson , the basic question presented was whether the term “employee” in an employment discrimination statute only refers to current employees or includes former employees. 1 In both cases, the employer argued that the plain definition of the term “employee” in an employment discrimination statute unambiguously refers to current employees. Robinson, 519 U.S. at 339 , 117 S.Ct. 843 ; Gonzales, 89 F.3d at 1526. The Court in Gonzales agreed, holding that the term “employee” in Title I was plain and unambiguous, and only referred to current em *1061 ployees. Gonzales, 89 F.3d at 1526 (interpreting 42 U.S.C. § 12111 (4)). However, the Supreme Court in Robinson rejected the notion that the term “employee,” standing alone, is unambiguous, explaining that the term “employee” “lacks any temporal qualifier and is consistent with either current or past employment.” Robinson, 519 U.S. at 342 , 117 S.Ct. 843 (discussing 42 U.S.C. § 2000e-3(a)). The Supreme Court indicated that courts should not draw unnecessary meaning from the fact that the term “employee” is generally defined in an employment discrimination statute as a “person employed by an employer,” explaining that the word “employed” in this context “is not ... limited in its possible meanings, and could just as easily be read to mean ‘was employed’ ” by an employer. Id. at 342, 117 S.Ct. 843 (emphasis in original).

The Supreme Court applied the same logic to interpret the phrase “applicants or employees” as it relates to the prohibition against discrimination in the employment context. Robinson, 519 U.S. at 344 , 117 S.Ct. 843 (interpreting 42 U.S.C. § 2000e-3(a)). The Robinson Court explained that “[t]he use of the term ‘applicants’ [in an employment discrimination statute] does not serve to confine, by negative inference, the temporal scope of the term ‘employees.’ ... [as this] argument rests on the incorrect premise that the term ‘applicants’ is equivalent to the phrase ‘future employees.’ ” Id. at 344-45 , 117 S.Ct. 843 . The Robinson Court further described the analytic flaw that gives rise to this view, explaining:

the term “applicants” would seem to cover many persons who will not become employees. Unsuccessful applicants or those who turn down a job offer, for example, would have been applicants, but not future employees. And the term fails to cover certain future employees who may be offered and will accept jobs without having to apply for those jobs. Because the term “applicants” in § 704(a) is not synonymous with the phrase “future employees,” there is no basis for engaging in the further (and questionable) negative inference that inclusion of the term “applicants” demonstrates intentional exclusion of former employees.

This ruling also severely undercuts the Gonzales Court’s interpretation of Title I, as the Gonzales Court concluded that the plain meaning of the term “applicants and employees” established that Title I of the ADA only covered current and future employees. See Gonzales, 89 F.3d at 1527 (interpreting 42 U.S.C. § 12112 (b)).

As shown above, the Robinson Court, analyzed the same terms we examined in Gonzales and found these terms to be ambiguous. The only remaining basis for the Gonzales Court’s ruling was its view that the phrase “qualified individual with a disability” in 42 U.S.C. § 12111 (8) could only be interpreted to mean current employees, because the provision refers to persons who “hold[ ] or desire[]” a position with an employer. Gonzales, 89 F.3d at 1526. However this proposition is also undercut by the Robinson case, as the Robinson Court established that courts may not interpret a provision in an employment discrimination statute to exclude former employees unless they can identify language in the provision that functions as a clear and explicit “temporal qualifier.” Robinson, 519 U.S. at 343 , 117 S.Ct. 843 . The Supreme Court explained that statutory language serves as a “temporal qualifier” when it “specif[ies] the time frame in which the employment relationship [at issue] must exist.” Id. at 342, n. 2 , 117 S.Ct. 843 . The Robinson Court identified two kinds of language that meet this requirement. It explained that some statu *1062 tory provisions will prohibit behavior or offer remedies which, by definition, only pertain to a certain class of employees. See id. at 343 , 117 S.Ct. 843 (explaining that 42 U.S.C. § 2000e-16(b), which prohibits discrimination in advancement, and 42 U.S.C. § 2000e-2(h), which prohibits discrimination in salary payments or promotions, both, by definition, only cover current employees). Also, the Robinson Court noted that some provisions will specifically delineate the time frame to which they apply, and thereby limit the scope of their coverage. Id. at 343, n. 2 , 117 S.Ct. 843 (discussing 42 U.S.C. § 2000e(b), which provides that Title VII regulates any employer “who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year”).

When viewed under this standard, it is clear that the phrase “holds or desires” in § 12111(8) is not a “temporal qualifier.” First, the phrase does not prohibit any time-specific employer action or provide for time-specific remedies that only pertain to a certain class of employees. Second, the phrase does not contain any language that explicitly refers to a particular time frame. Certainly, the “holds and desires” language in § 12111(8) could support the inference that Congress intended for Title I to cover only applicants (those who “desire” positions) and current employees (those who “hold” positions). However, this language could also be interpreted to include former employees who still “desire” to work for their respective employers, but whose disabilities bar them from doing so unless they are provided with the appropriate accommodation. The basic fact of the matter is, the phrase “holds or desires” is time-neutral and ambiguous, and therefore § 12111(8) does not bar former employees from invoking Title I’s protection.

Having concluded that the aforementioned Title I provisions do not clearly and unambiguously define the class of employees protected under the statute, our remaining task is to determine whether Title I provides a consistent definition for covered employees in its remaining provisions and, for this reason, has a clear and unambiguous meaning. See Robinson, 519 U.S. at 341 , 117 S.Ct. 843 (“[T]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which the language is used, and the broader context of the statute as a whole.”)

Using this framework, it is clear that other provisions in Title I rebut the inference that the statute only protects current and future employees. Specifically, 42 U.S.C. § 12112 (a), which prohibits discriminatory discharge, and 42 U.S.C. § 12117 (a), which provides for the remedy of reinstatement, by definition pertain to former employees. Also, Title I’s general definition of discrimination, 42 U.S.C. § 12112 (b), suggests that Title I protects former employees because this provision prohibits employers from administering programs that discriminate against the disabled in providing “fringe benefits,” and when interpreting other employment discrimination statutes courts interpret the term “fringe benefits” to include retirement and other post-employment medical benefits. See, e.g., Dobbs v. City of Atlanta Georgia, 606 F.2d 557 (5th Cir.1979) (Title VII suit alleging that an employer’s racially discriminatory personnel practices prevented Black employees from accessing high quality pension plans). The aforementioned provisions make it clear that Congress designed Title I so that, in various sections, it offers protection to different groups of employees, in some cases offering protection and remedies to current employees, and in others extending its protection to former employees, and *1063 potential future employees (“applicants”). Therefore, because the statute does not provide a “coherent and consistent” definition of covered employees across its various sections, the Gonzales Court erred in deciding that Title I’s “plain meaning” prevented former employees from invoking its protections.

In short, there is no doubt that the Robinson Court’s decision invalidates Gonzales. The terms the Gonzales Court concluded had a “plain and ordinary meaning” instead were found to be ambiguous by the Supreme Court. Moreover, Robinson stands for the proposition that the Court’s decision to deny an employment discrimination statute’s protection to a class of employees should turn on language that serves as an explicit temporal qualifier. Therefore, Robinson’s rationale and holding abrogate the rationale and holding of Gonzales. Under our precedent, such a conclusion requires that we follow the Supreme Court’s intervening law.

Certainly, it is easier to conclude that a Supreme Court decision invalidates an Eleventh Circuit decision when the Supreme Court expressly overrules a particular case, or baldly criticizes the precise proposition that is the basis for an Eleventh Circuit panel’s ruling. See, e.g., Lufkin, 956 F.2d at 1107 (recognizing that a Supreme Court case had invalidated the Eleventh Circuit’s retroactivity rule and overruling contrary Eleventh Circuit authority “in order to give full effect to [an] intervening decision of the Supreme Court”); Cottrell v. Caldwell, 85 F.3d 1480, 1485 (11th Cir.1996) ( recognizing that a Supreme Court decision had invalidated the line of Eleventh Circuit cases holding that officers could not appeal interlocutory orders denying them qualified immunity when the courts involved had ruled that material issues of fact were in dispute). However, we are also compelled to overrule our precedent when the rationale the Supreme Court uses in a intervening case directly contradicts the analysis that this Court has used in a related area, and establishes that this Court’s current rule is wrong. See, e.g., Footman v. Singletary, 978 F.2d 1207, 1210-11 (11th Cir.1992) (overruling Eleventh Circuit cases that allowed habeas petitioners to raise additional ineffective assistance of counsel claims not raised in state court because the policy rationale in Keeney v. Tamayo-Reyes, 504 U.S. 1 , 112 S.Ct. 1715 , 118 L.Ed.2d 818 (1992), a decision on evidentiary hearings in habeas eases, indicated that the Supreme Court disfavors allowing petitioners to raise new federal habeas claims not raised in state court); Hogan, 986 F.2d at 1370 (11th Cir.1993) (overruling Eleventh Circuit precedent applying a more liberal standard of the clear error test to review a trial court’s determination that the defendant was competent to stand trial because, Demosthenes v. Baal, 495 U.S. 731 , 110 S.Ct. 2223 , 109 L.Ed.2d 762 (1990), a Supreme Court case discussing a defendant’s competence to waive habeas proceedings, suggested that a more stringent standard was required).

Judge Carnes cites a number of cases to support his view that, absent an express statement from the Supreme Court that Gonzales is overruled, the case is still good law. However no case cited, with the exception of Morris v. City of West Palm Beach 194 F.3d 1203 (11th Cir.1999), involved an intervening Supreme Court case which undercut the basis for an earlier panel’s ruling. For example, in United States v. Chubbuck, 252 F.3d 1300 (11th Cir.2001), this Court declined to overrule an Eleventh Circuit panel’s interpretation of the term “conviction” in light of an intervening Florida Supreme Court decision. In Lapides v. Board of Regents, 251 F.3d 1372 (11th Cir.2001), this Court declined to overrule an Eleventh Circuit deci *1064 sion based on arguably conflicting Eleventh Circuit authority and a Supreme Court concurring opinion. Also, in United States v. Smith, 122 F.3d 1355 (11th Cir.1997), this Court refused to change its interpretation of the federal expert witness rules because its ruling was consistent with Supreme Court precedent, and because it did not find persuasive the conflicting authority the petitioner offered from other Courts of Appeal.

Saxton v. ACF Industries, Inc., 239 F.3d 1209 (11th Cir.2001) is another case in which no conflicting Supreme Court decision was at issue; this Court merely recognized that a prior panel had failed to acknowledge the existence of the 1991 Amendments to Rule 15(c), and it applied the prior panel’s rule and recommended en banc review. Similarly, in Turner v. Beneficial Corporation, 242 F.3d 1023 (11th Cir.2001), a panel of this Court recognized that a prior panel had misinterpreted the requirements of the Truth in Lending Act, but the panel faithfully applied the questionable rule and recommended en banc review. See also United States v. Steele, 117 F.3d 1231 (11th Cir.1997) (recognizing that a prior panel apparently had misunderstood the requirements for indicting a physician under 28 U.S.C. § 855 (a)(1) but applying the prior panel’s rule and recommending en banc review).

The only case Judge Carnes discusses that considered the effect of an intervening, related Supreme Court decision on an earlier Eleventh Circuit decision is Morris v. City of West Palm Beach 194 F.3d at 1207 n. 6. 2 In Morris , this Court recognized that Farrar v. Hobby, 506 U.S. 103 , 113 S.Ct. 566 , 121 L.Ed.2d 494 (1992), cast doubt on the viability of the “catalyst test,” a court-created modification of the attorneys’ fee provisions under 42 U.S.C. § 1988 . Although § 1988 only authorizes attorneys’ fees for prevailing parties, several courts had used the “catalyst test” to award plaintiffs attorneys’ fees in civil right cases despite the fact that they did not prevail at trial, when it was clear that the plaintiffs’ lawsuits had pressured the defendants into functionally providing the relief that was the subject of the plaintiffs’ claims. The rationale behind the catalyst test is that § 1988 was designed to compensate any person who acts as a public attorney general and ensures the enforcement of the civil rights laws, and plaintiffs in catalyst test cases technically have fulfilled this role. After the development of this test, the Supreme Court issued its decision in Farrar , which re-established that in order “to qualify as a prevailing *1065 party [under § 1988], a civil rights plaintiff must obtain at least some relief on the merits of his claim.” Farrar, 506 U.S. at 108 , 113 S.Ct. 566 . Stated simply, the Supreme Court explained that the recipient of an attorneys fee award under § 1988 “must obtain an enforceable judgment against the defendant from whom fees are sought or comparable relief through a consent decree or settlement.” Id. After Farrar , some courts concluded that the catalyst test was no longer viable. In Morris , however, we rejected this view. This Court held that the catalyst test survived Farrar because the Farrar Court did not directly challenge the catalyst test and, given the strong policy considerations supporting a broad interpretation of § 1988 — namely ensuring the enforcement of the civil rights laws — the test should survive.

While Morris bears comparison to the instant case, I believe it is distinguishable. The Robinson decision directly challenges the statutory analysis we performed in Gonzales, as it overrules our decision regarding the threshold determination of whether the terms in the ADA were ambiguous. Additionally, the policy concerns that inform the ADA counsel that we must give the statute a broad cast, and therefore suggest that we should revisit the Gonzales Court’s more restrictive interpretation of the statute. See 42 U.S.C. § 12101 (a)(8) (explaining that the ADA’s goal is to ensure that the disabled enjoy the same “equality of opportunity, full participation, independent living, and economic self sufficiency” as the non-disabled).

In summary, because Robinson clearly invalidates our analysis in Gonzales I believe that it requires that we revisit our interpretation of Title I of the ADA. As for the substantive question of whether the ADA only protects current employees, I join in Judge Poliak’s cogent discussion explaining the statutory basis for interpreting the ADA to cover current as well as former employees, as well as his analysis of the statute’s safe harbor provision.

. Some would distinguish Robinson because the case concerns Title VII's retaliation provisions and therefore, it is argued, it cannot supply guidance on interpreting the ADA’s terms. (Dis. at 1065). However, as Judge Anderson explained in Gonzales, it is clear that Congress intended for Title VII's provisions and the ADA's provisions to be interpreted similarly, as the ADA in many cases borrows terms from Title VII (among them the term "employee” discussed above), the statute’s legislative history explicitly indicates that the ADA incorporates Title VII's definition for many terms it uses (including "employer,” and "employee,”) and the EEOC's interpretive guidelines on the ADA indicate that the analysis performed under the statute is similar to the analysis conducted under Title VII. See Gonzales, 89 F.3d at 1531-32 ( Anderson, dissenting).

. I recognize that Judge Carnes cites most of the above cases for the proposition that courts "are not at liberty to disregard binding case law that is closely on point and has been only weakened, rather than directly overruled, by the Supreme Court." See, e.g., Morris, 194 F.3d at 1207 n. 6 (citing Fla. League of Professional Lobbyists v. Meggs, 87 F.3d 457, 462 (11th Cir.1996)); Lapides, 251 F.3d at 1378 (same). This quotation is based on the Supreme Court’s ruling in Rodriguez de Quijos v. Shearson/American Express, Inc., 490 U.S. 477, 482-86 , 109 S.Ct. 1917 , 104 L.Ed.2d 526 (1989). See Fla. League of Professional Lobbyists, 87 F.3d at 462 (citing Rodriguez). On review, however, the Rodriguez case merely stands for the proposition that when a Court of Appeals is faced with two Supreme Court cases that apply to the case at bar, the appeals court should follow the directly applicable precedent, even if it rests on reasoning seemingly rejected in a related Supreme Court case. The Supreme Court explained that when lower courts are faced with seemingly conflicting Supreme Court decisions, they should leave it to the high court to determine which of its decisions are overruled, or to sort out any conflicts between its rulings. Importantly, Johnson does not require that this Court sort out any conflicts in Supreme Court authority but, rather, falls well within the Court of Appeals purview, namely, to clarify and correct its own law in light of an intervening Supreme Court ruling.