Petition for Writ of Certiorari — Hatem El-Khalidi, Petitioner v. Arabian American Development Company

NO. 18-_____

In the

Supreme Court of the United States

HATEM EL KHALIDI,

Petitioner,

–v–

ARABIAN AMERICAN

DEVELOPMENT COMPANY,

Respondent.

On Petition for Writ of Certiorari to the

Ninth Court of Appeals at Beaumont, Texas

PETITION FOR WRIT OF CERTIORARI

THOMAS B. COWART

CARL F. MELITO

WASOFF & COWART, PLLC

12225 GREENVILLE AVE.

SUITE 700

DALLAS, TX 75243

(972) 234-3966

CARL@MELITO.COM

COUNSEL OF RECORD

ATTORNEY AT LAW

100 N. CENTRAL EXPRESSWAY

SUITE 901

RICHARDSON, TX 75080

(214) 692-9700

TOM@TCOWART.COM

COUNSEL FOR PETITIONER

AUGUST 22, 2018

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

1. Must a person conclusively establish the limitations caused by a disability to invoke the protection

of the constitutional right of access to court provided

by Title II of the Americans With Disabilities Act?

2. Have Texas’s courts failed to properly apply

Title II of the Americans with Disabilities Act to the

procedures in matters pending within her court system?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

TABLE OF AUTHORITIES ...................................... vi

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

STATUTORY PROVISIONS ...................................... 2

STATEMENT OF THE CASE .................................... 7

A. Underlying Facts.............................................. 8

B. Course of the Underlying Litigation ............. 13

C. Presentation of the Americans With

Disabilities Act Issue in the State Court

Proceedings..................................................... 16

REASONS FOR GRANTING THIS PETITION ...... 25

A. THE STATE COURT’S REQUIREMENT THAT

A

DISABILITY LIMITATION MUST BE

“CONCLUSIVELY PROVED” TO MANDATE AN

ACCOMMODATION UNDER THE AMERICANS

WITH DISABILITIES ACT OUGHT TO BE

CONSIDERED BY THIS COURT AS IT CONFLICTS

WITH CONGRESS’S STATUTORY DIRECTIVES

AND WITH THE WELL-ESTABLISHED BURDENS

OF PROOF ON THE ISSUE SET BY THE FEDERAL

COURTS ............................................................ 25

iii

TABLE OF CONTENTS – Continued

Page

B. THE TEXAS STATE COURTS’ TREATMENT OF

TITLE II THE AMERICANS WITH DISABILITIES

ACT OUGHT TO BE CONSIDERED BY THIS

COURT ............................................................. 28

CONCLUSION.......................................................... 31

APPENDIX TABLE OF CONTENTS

Order of the Supreme Court of Texas Denying

Petition for Review (April 6, 2018) .................... 1a

Order of the Supreme Court of Texas Granting

Motion for Extension of Time to file Petition

for Review (January 17, 2018) ........................... 2a

Order of the Court of Appeals of the State of

Texas Denying Motion for Rehearing

(November 29, 2017) .......................................... 3a

Memorandum Opinion of the Court of Appeals of

Texas (November 9, 2017) .................................. 4a

Judgment of the Ninth Court of Appeals

(November 9, 2017) .......................................... 33a

Findings of Fact and Conclusions of Law

(October 6, 2016) .............................................. 35a

Order Granting Defendant’s Second Motion to

Dismiss with Prejudice (September 1, 2016) .. 40a

Order of the Supreme Court of Texas Denying

Motion for Rehearing of El-Khalidi Petition

for Review (May 25, 2018)................................ 42a

iv

TABLE OF CONTENTS – Continued

Page

Relevant Statutory Provisions ............................... 43a

Texas Supreme Court Acknowledgment of Filing

of El-Khalidi Motion for Rehearing of Petition

for Review (April 23, 2018) .............................. 52a

Hatem El-Khalidi’s Motion for Rehearing of His

Petition for Review—Relevant Excerpts

(April 23, 2018) ................................................. 53a

Hatem El-Khalidi’s Petition for Review—

Relevant Excerpts (January 23, 2018) ............ 56a

Hatem El-Khalidi’s Appellant’s Brief—

Relevant Excerpts (February 22, 2017) ........... 61a

Plaintiffs’ Motion to Reconsider September 1,

2016 Order on Defendant’s Second Motion to

Dismiss With Prejudice—Relevant Excerpts

(October 3, 2016) .............................................. 67a

Plaintiff’s Second Supplemental Brief in Support

of Plaintiff’s Second Motion to Reset Mediation and Deposition Schedule and Order—

Relevant Excerpts (August 22, 2016) .............. 71a

Plaintiffs’ Supplemental Response to Defendant’s

Second Motion for Sanctions, Etc.—

Relevant Excerpts (April 12, 2016) .................. 80a

Plaintiffs’ Response to Defendant’s Second Motion

for Sanctions, Etc.—Relevant Excerpts

(April 6, 2016) ................................................... 84a

v

TABLE OF CONTENTS – Continued

Page

First Amended Brief in Support of Plaintiffs’

Motion to Reset Mediation and Deposition

Schedule—Relevant Excerpts

(April 4, 2016) ................................................... 88a

Plaintiffs’ Motion to Reset Mediation and

Deposition Schedule (January 20, 2016) ......... 92a

Declaration of Hatem El-Khalidi

(January 20, 2016)............................................ 95a

vi

TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

Page

CASES

Alexander v. Washington Metro. Area Transit

Auth., 826 F.3d 544 (D.C. Cir. 2016) ................ 27

Barlia v. MWI Veterinary Supply, Inc.,

721 Fed. Appx. 439 (6th Cir. 2018) ............. 26, 27

Bell v. Milwaukee,

746 F.2d 1205 (7th Cir. 1984) ........................... 28

Blackhouse v. Doe,

24 A.3d 72 (Main 2011) ..................................... 29

Carmona v. Sw. Airlines Co.,

604 F.3d 848 (5th Cir. 2010) ............................. 27

Christopher v. Harbury,

536 U.S. 403 (2002) ........................................... 28

Foster v. Lake Jackson,

28 F.3d 425 (5th Cir. 1994) ............................... 28

Magnuson v. Mullen,

65 S.W.3d 815

(Tex. App.–Fort Worth 2002, pet. denied) ........ 29

Muhammad v. Court of Common Pleas of

Allegheny County, Pennsylvania,

483 Fed.Appx. 759 (3rd Cir. 2012) .................... 28

Sanieoff v. Curtis,

2014 WL 5426895 (Mass. Dist. Ct. 2014),

aff’d, 57 N.E.3d 1065 (Mass. App. Ct. 2016) .... 29

vii

TABLE OF AUTHORITIES—Continued

Page

Silk v. Bd. of Trustees, Moraine Valley Cmty.

Coll., Dist. No. 524, 795 F.3d 698

(7th Cir. 2015) ................................................... 27

Swekel v. River Rouge,

119 F.3d 1259 (6th Cir. 1997) ............................ 29

Tennessee v. Lane,

124 S.Ct. 1978 (2004) ........................................ 28

Valdez v. Roybal,

186 F.Supp.3d 1197 (D. New Mexico 2016) ...... 29

Weathers v. Arkansas Dept. of Human Services,

433 S.W.3d 271 (Ark. App. 2014) ........................ 29

Weed v. Sidewinder Drilling, Inc.,

245 F.Supp.3d 826 (S.D. Tex. 2017) .................... 26

Williams v. FedEx Corp. Services,

849 F.3d 889 (10th Cir. 2017) ............................ 27

STATUTES

ADAAA § 2(b)(5)........................................................ 26

Americans With Disabilities Act of 1990,

Pub. L. No. 101-336, 104 Stat. 328 (1990) ........ 20

28 U.S.C. § 1257(a) ..................................................... 1

42 U.S.C. § 12101 ...................................................... 24

42 U.S.C. § 12102 .................................................. 2, 26

42 U.S.C. § 12131 ........................................................ 2

42 U.S.C. § 12134 ........................................................ 3

42 U.S.C. § 12213 ...................................................... 24

viii

TABLE OF AUTHORITIES—Continued

Page

Title II of the Americans

With Disabilities Act .................................. passim

JUDICIAL RULES

Tex. R. Civ. P. 191.1 (b) ...................................... 20, 22

1

OPINIONS BELOW

The 88th Judicial District Court, Hardin County,

Texas’s September 1, 2016 order dismissing El-Khalidi’s

claims is not reported but is found at App.40a. The

Court of Appeals for the Ninth Court of Appeals

District of Texas’s opinion affirming the dismissal is

not reported but is available at El-Khalidi v. Arabian

American Development Co., 2017 WL 5179967 (Tex.

App.–Beaumont 2017, pet. denied). The Court of

Appeals’s Opinion and Judgment are contained in

Appendix 4a and 33a, respectively. The Texas Supreme

Court’s order denying El-Khalidi’s Petition for Review

is not reported but can be found at App.1a, while its

order denying El-Khalidi’s Motion for Rehearing of

His Petition for Review is found at App.42a.

JURISDICTION

The Court of Appeals for the Ninth Court of

Appeals District of Texas issued its opinion and judgment on November 9, 2017. (App.4a, 33a). The Texas

Supreme Court denied El-Khalid’s timely-filed Petition for Review on April 6, 2018 (App.1a) and subsequently denied his timely-filed Motion for Rehearing

on May 25, 2018 (Appx 42a). The jurisdiction of this

Court is invoked under 28 U.S.C. § 1257(a).

2

STATUTORY PROVISIONS



42 U.S.C. § 12102—Definition of Disability

As used in this chapter:

(1) DisabilityThe term “disability” means, with

respect to an individual—

(A) a physical or mental impairment that substantially limits one or more major life

activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment (as described in paragraph (3)).



42 U.S.C. § 12131—Definitions

As used in this subchapter:

(1) Public entity.

The term “public entity” means—

(A) any State or local government;

(B) any department, agency, special purpose district, or other instrumentality of a State or

States or local government; and

(C) the National Railroad Passenger Corporation,

and any commuter authority (as defined in

section 24102(4) [1] of title 49).

(2) Qualified individual with a disability

The term “qualified individual with a disability”

means an individual with a disability who, with

or without reasonable modifications to rules,

3

policies, or practices, the removal of architectural,

communication, or transportation barriers, or the

provision of auxiliary aids and services, meets the

essential eligibility requirements for the receipt

of services or the participation in programs or

activities provided by a public entity.



42 U.S.C. § 12134-Regulations

(a) In general

Not later than 1 year after July 26, 1990, the

Attorney General shall promulgate regulations in

an accessible format that implement this part.

Such regulations shall not include any matter

within the scope of the authority of the Secretary

of Transportation under section 12143, 12149, or

12164 of this title.

(b) Relationship to other regulations

Except for “program accessibility, existing facilities”, and “communications”, regulations under

subsection (a) shall be consistent with this chapter

and with the coordination regulations under part

41 of title 28, Code of Federal Regulations (as

promulgated by the Department of Health, Education, and Welfare on January 13, 1978), applicable to recipients of Federal financial assistance

under section 794 of title 29. With respect to

“program accessibility, existing facilities”, and

“communications”, such regulations shall be consistent with regulations and analysis as in part

39 of title 28 of the Code of Federal Regulations,

applicable to federally conducted activities under

section 794 of title 29.

4

(c) Standards

Regulations under subsection (a) shall include

standards applicable to facilities and vehicles

covered by this part, other than facilities, stations,

rail passenger cars, and vehicles covered by part

B. Such standards shall be consistent with the

minimum guidelines and requirements issued by

the Architectural and Transportation Barriers

Compliance Board in accordance with section

12204(a) of this title.



ADA Amendments Act of 2008

Sec. 2. Findings and Purposes

(a) Findings—Congress finds that—

(1) in enacting the Americans with Disabilities

Act of 1990 (ADA), Congress intended that the Act

‘‘provide a clear and comprehensive national

mandate for the elimination of discrimination

against individuals with disabilities’’ and provide

broad coverage;

(2) in enacting the ADA, Congress recognized that

physical and mental disabilities in no way diminish

a person’s right to fully participate in all aspects

of society, but that people with physical or mental

disabilities are frequently precluded from doing so

because of prejudice, antiquated attitudes, or the

failure to remove societal and institutional barriers;

(3) while Congress expected that the definition of

disability under the ADA would be interpreted

consistently with how courts had applied the

definition of a handicapped individual under the

5

Rehabilitation Act of 1973, that expectation has not

been fulfilled;

(4) the holdings of the Supreme Court in Sutton

v. United Air Lines, Inc., 527 U.S. 471 (1999) and

its companion cases have narrowed the broad scope

of protection intended to be afforded by the ADA,

thus eliminating protection for many individuals

whom Congress intended to protect;

(5) the holding of the Supreme Court in Toyota

Motor Manufacturing, Kentucky, Inc. v. Williams,

534 U.S. 184 (2002) further narrowed the broad

scope of protection intended to be afforded by the

ADA;

(6) as a result of these Supreme Court cases, lower

courts have incorrectly found in individual cases

that people with a range of substantially limiting

impairments are not people with disabilities;

(7) in particular, the Supreme Court, in the case

of Toyota Motor Manufacturing, Kentucky, Inc.

v. Williams, 534 U.S. 184 (2002), interpreted

the term ‘‘substantially limits’’ to require a

greater degree of limitation than was intended

by Congress;

(8) Congress finds that the current Equal Employment Opportunity Commission ADA regulations

defining the term ‘‘substantially limits’’ as

‘‘significantly restricted’’ are inconsistent with

congressional intent, by expressing too high a

standard.

(b) Purposes

The purposes of this Act are—

6

(1) to carry out the ADA’s objectives of providing

‘‘a clear and comprehensive national mandate for

the elimination of discrimination’’ and ‘‘clear,

strong, consistent, enforceable standards addressing discrimination’’ by reinstating a broad scope

of protection to be available under the ADA;

(2) to reject the requirement enunciated by the

Supreme Court in Sutton v. United Air Lines, Inc.,

527 U.S. 471 (1999) and its companion cases that

whether an impairment substantially limits a

major life activity is to be determined with

reference to the ameliorative effects of mitigating

measures;

(3) to reject the Supreme Court’s reasoning in

Sutton v. United Air Lines, Inc., 527 U.S. 471

(1999) with regard to coverage under the third

prong of the definition of disability and to reinstate

the reasoning of the Supreme Court in School

Board of Nassau County v. Arline, 480 U.S. 273

(1987) which set forth a broad view of the third

prong of the definition of handicap under the

Rehabilitation Act of 1973;

(4) to reject the standards enunciated by the

Supreme Court in Toyota Motor Manufacturing,

Kentucky, Inc. v. Williams, 534 U.S. 184 (2002),

that the terms ‘‘substantially’’ and ‘‘major’’ in the

definition of disability under the ADA ‘‘need to be

interpreted strictly to create a demanding standard

for qualifying as disabled,’’ and that to be substantially limited in performing a major life

activity under the ADA ‘‘an individual must have

an impairment that prevents or severely restricts

7

the individual from doing activities that are of

central importance to most people’s daily lives’’;

(5) to convey congressional intent that the standard

created by the Supreme Court in the case of Toyota

Motor Manufacturing, Kentucky, Inc. v. Williams,

534 U.S. 184 (2002) for ‘‘substantially limits’’, and

applied by lower courts in numerous decisions, has

created an inappropriately high level of limitation

necessary to obtain coverage under the ADA, to

convey that it is the intent of Congress that the

primary object of attention in cases brought under

the ADA should be whether entities covered under

the ADA have complied with their obligations,

and to convey that the question of whether an

individual’s impairment is a disability under the

ADA should not demand extensive analysis; and

(6) to express Congress’ expectation that the

Equal Employment Opportunity Commission will

revise that portion of its current regulations

that defines the term ‘‘substantially limits’’ as

‘‘significantly restricted’’ to be consistent with

this Act, including the amendments made by this

Act.

STATEMENT OF THE CASE

This is an appeal from a dispositive ruling on a

preliminary motion, denying Petitioner Hatem ElKhalidi’s invocation of his constitutional and statutory right of access to the courts provided by the

Americans With Disabilities Act. The record demon-

8

strates that the lower courts mis-characterized the

legal burden faced by the Petitioner, a 90-plus yearold-man medically advised that he was not fit to fly

to the United States, who sought court approval for

his deposition to be taken by video conference. The

Texas courts have decided an important question of

federal law that either has not been decided by this

Court or that conflicts with the relevant decisions by

this Court.

A.

Underlying Facts

This litigation arises out of a fifty year effort to

develop a mineral field in the Kingdom of Saudi

Arabia. Plaintiff Hatem El-Khalidi, an American citizen

born in Jordan in 1924 (CR 2019),1 went to Saudi Arabia

in 1963 to conduct operations as a career CIA agent

(CR 2020-2021). A trained geologist, he used a mineral

reconnaissance permit to cover his clandestine operations (CR 2021). During his operations, he discovered

a valuable mineral field, a field named Al Masane

(CR 2023, 2080, 2172). El-Khalidi formed an American

company which became Arabian American Development Company (“AADC”) to develop the field (CR 2020,

2023) and, upon his resignation from the CIA in 1969,

became an AADC vice president to pursue the development of Al Masane (CR 2013).

That development, though, did not come easy. In

1971, El-Khalidi obtained licenses to conduct exploratory operations (CR 2024) and began exploring the

1

These facts are set out for context. Citations are to the Clerk’s

Record in the underlying proceeding to allow the Court to locate

the source of the assertions should the Court obtain the appellate record from the Texas courts.

9

feasibility of commercial mining operations in the

area (CR 2025-2026). By early 1984, after expenditure

of about $24.8 million (CR 2027), the Saudi Arabian

Minister of Petroleum and Mineral Resources recommended to the King of Saudi Arabia that AADC be

granted a lease for mining operations (CR 2026).

That lease, however, was not forthcoming (CR

2026). El-Khalidi began a relentless campaign to secure

the lease rights for AADC, a campaign that included

at least 30 letters and memoranda to the Saudi Arabian

government (CR 2027), procuring letters from the U.S.

Secretary of Commerce (CR 2029-2030) and the U.S.

Ambassador to Saudi Arabia (CR 2030-2031) on AADC’s

behalf, and many meetings and other contacts with

the Ministry (CR 2027-2033). Finally, after nearly 10

years of effort by El-Khalidi, a lease to develop Al

Masane issued to AADC on May 22, 1993 (CR 2033).

Finally obtaining the lease was not the end of

El-Khalidi’s struggles to allow AADC to capitalize on

his discovery. Although he immediately began taking

steps to start the mining project, those steps involved

an extended period of preparation time (CR 2034). By

the time AADC was in position to begin mining

operations, a worldwide economic slump had caused

a 35-40% drop in the market price of minerals (CR

2034). As a result of this collapse in the market price,

the mining project became economically infeasible

(CR 2034).

In response to El-Khalidi’s notice of the effect of

the adverse economic conditions, though, the Saudi

Arabian government pressured AADC to begin mining

operations, ordering the company to start the project

immediately by letter dated May 24, 2000 (CR 2035).

10

Thus begun a long debate between El-Khalidi and

the Ministry, from May 2000 to November 2003, over

whether the economic conditions excused AADC’s delay

in operations or whether the government could

terminate AADC’s lease because of that delay. Over

the next 3 and 1/2 years, El-Khalidi wrote at least 25

letters to and attended 2 meetings with the Ministry,

sought help from the American Ambassador to Saudi

Arabia through at least 3 letters and two meetings at

the embassy, oversaw three letters and two meetings

with the Ministry by AADC’s “legal advisor,” and wrote

directly to the member of the Saudi Arabian royal

family responsible for running the Ministry (CR 20352074). The result of El-Khalidi’s persistent, unrelenting

effort (labeled “astounding perseverance” by AADC

(CR 2075)) was that the government excused AADC’s

delay and reset the time in which operations could

begin (CR 2074). Thus, through his solitary, herculean

effort, El-Khalidi preserved AADC’s rights to develop

the Al Manse field, a project in which AADC had

invested more than $36 million by the resolution of

the controversy over the timing of the start of the

operations.

Having preserved AADC’s legal right to exploit

the mineral field, El-Khalidi turned to the organization

of the structures necessary to develop the area. He

first organized a new Saudi Arabian company to

conduct the mining operations (CR 2074). This company

was named Al Masane Al Kobra Mining Company

(“AMAK”) (CR 2074). Through this company, El-Khalidi

contracted for the building of the physical facilities

at the mining field (CR 2074), which started at the

site in late 2007 (CR 2075). According to AADC’s

December 31, 2012 10-K/A report, “AMAK commenced

11

commercial operations in July 2012 and by the end of

the year had shipped approximately 20,000 metric tons

of copper and zinc concentrate to smelters in India,

Korea and China” (CR 2175).

By the time of this final success in bringing the

Al Masane field into production, though, El-Khalidi

had been excluded from AADC and from enjoying the

fruits of his many years of effort. The roots of this

outcome are in the formation of AMAK in 2006. Ownership of AMAK was divided 50% to AADC and 50%

spread among a group of Saudi Arabian investors

(CR 2074). AADC contributed its mineral lease and

the investors contributed financing (CR 2074). In

2009, the investors demanded that AADC contribute

additional financing to AMAK (CR 2076-2077). ElKhalidi, then AMAK’s managing director and AADC’s

President, CEO, and Chairman of the Board of Directors, rejected this demand (CR 2077).

El-Khalidi, however, had already announced his

intended retirement from his AADC executive offices

(CR 2075). Thus, when the AMAK investors’ demand

was made, El-Khalidi was set to relinquish his

operational control over AADC (CR 2075). The investors

merely bided their time until El-Khalidi left office,

focusing their efforts on El-Khalidi’s intended successor, Nicholas Carter (CR 2077). Mr. Carter was brought

into AADC by El-Khalidi in 1987 as part of AADC’s

purchase of an oil refinery in Hardin County (CR 2028).

Carter was the manager of the refinery and El-Khalidi

kept him in that position after the purchase (CR 2028).

On El-Khalidi’s retirement as AADC’s President and

CEO, Carter was the intended successor and was

12

named to these offices by the Board effective July 1,

2009 on El-Khalidi’s recommendation (CR 2076).

Even before Carter assumed these offices, the

AMAK investors had targeted him for pressure over

their demand for a greater share of AMAK (CR 2077).

After El-Khalidi stepped away from his executive

offices, Carter recommended to the AADC board a

compromise with the AMAK investors that included

surrendering 18% of AADC’s shares of AMAK to the

investors. The AADC board adopted this recommendation on August 5, 2009 (CR 2078).

El-Khalidi strenuously objected to this agreement

and pushed the AADC board to reconsider (CR 2078).

On January 28, 2010 the Board reaffirmed its

commitment to the compromise agreement by a vote of

5-1 with El-Khalidi, still a member of the AADC board

at that time, casting the lone dissenting vote (CR

2078-2079).

Unsatisfied with simply prevailing on the compromise, Carter went on to propose that AADC void all

of its agreements regarding El-Khalidi’s retirement

package (El-Khalidi had entered into an agreement

with AADC calling for the payment of a $6,000 a month

pension to him for the remainder of his lifetime followed

by a $4,000 a month pension to his wife after his death

along with full medical benefits during the duration

of their lives upon his voluntary retirement (CR 2075,

2102, 2104)). Thus, on May 9, 2010, less than a year

after assuming office among resolutions praising ElKhalidi’s “exemplary service to the Company and

astounding perseverance,” his efforts to “overcome

innumerable difficult hurdles over the years,” and

acknowledging the Company’s “debt of gratitude for

13

his perseverance and performance” (CR 2075-2076),

Carter proposed and caused the passing of a resolution

by the AADC Board of Directors that “terminated in

all respects” El-Khalidi’s retirement compensation,

“cancelled in all respects” two stock options held by

El-Khalidi and his wife, repudiated any obligation to

pay a retirement bonus due El-Khalidi, and cancelled

“any accrued fees payable to Mr. El-Khalidi for his

service on the Company’s Board of Directors” (CR

2081). In short, at Carter’s insistence, AADC repudiated

all of its vested contractual obligations to El-Khalidi

after his nearly 50 years of service in its interests.

AADC then sued El-Khalidi in the United States

District Court for the Eastern District of Texas, seeking

the court’s blessing of AADC’s actions in repudiating

all of its obligations to El-Khalidi (CR 2081-2082,

2091, 2184). El-Khalidi filed suit defensively to AADC’s

federal suit (CR 002), ultimately agreeing to Hardin

County venue as part of an agreement that included

the dismissal of AADC’s federal suit (CR 1908-1909,

2184-2185). This original litigation was dismissed

without prejudice by the Trial Court (CR 1954), an

order upheld on appeal. El-Khalidi v. Arabian Am. Dev.

Co., 09-13-00394-CV, 2014 WL 2152101 (Tex. App.–

Beaumont 2014, pet. denied).

B.

Course of the Underlying Litigation

Mr. El-Khalidi refiled his suit against AADC just

before the expiration of the four year statute of

limitations governing contract claims (CR 2). Although

Mr. El-Khalidi served notices of depositions with his

petition, AADC quashed the notices, insisting that

“El-Khalidi must give his deposition first” (CR 1956).

The rest of 2014 was taken up by the parties wrangling

14

over how to proceed with the litigation with Mr. ElKhalidi trying to move forward with discovery (CR

1959, 1967, 1970, 1972, 1976, 1980), while AADC

insisted that all discovery be suspended until Mr. ElKhalidi could be deposed in person (CR 1982; see also

1968, 1974, 1978) (all despite being advised of 90plus-year-old Mr. El-Khalidi’s health conditions that

precluded him from traveling to the United States for

that purpose (CR 1976, 1978)).

Growing frustrated with AADC’s obstruction, ElKhalidi moved for Summary Judgment (CR 90). In

response, AADC returned to the same well, insisting

that the summary judgment could not proceed until

Mr. El-Khalidi was deposed (CR 1984). Although ElKhalidi sought to accommodate AADC, he was unable

to do so and AADC turned to the Trial Court seeking

an order compelling El-Khalidi to travel to Texas for

his deposition and otherwise freezing the litigation

by precluding El-Khalidi from “filing any pleadings

seeking affirmative relief or conducting any discovery

unless and until El-Khalidi is first presented for

deposition” (CR 1662). Ultimately, rather than ruling

on this Motion, the Trial Court simply set a schedule

for mediation and depositions of the primary witnesses

in the matter (CR 1739).

Unfortunately, Mr. El-Khalidi was unable to return

to the United States consistent with the schedule set

by the Trial Court and asked for relief from that

schedule (CR 1879). As he explained in support of his

Motion to Reset Mediation and Deposition Schedule,

he was prevented from returning to the United States

by his continuing health problems and complications

arising out of his more-than-a-year stay in Amman,

15

Jordan for medical treatment at the Al Khalidi Hospital

& Medical Center (CR 1884-1885). AADC responded

by filing its Second Motion for Sanctions, Motion to

Dismiss, and Response in Opposition to Plaintiff’s

Motion to Reset Mediation and Deposition Schedule

(CR 1887).

After Defendant’s Second Motion for Sanctions

was filed but again without ruling on a motion, the

Trial Court rendered on order requiring El-Khalidi to

appear for his deposition on or before August 1, 2016

and prohibiting him from setting his pending motion

for summary judgment until after his deposition or

a hearing on Defendant’s motion (Supp CR 3). AADC

set its Motion for submission on the pleadings on

September 5, 2016 (CR 2374). On September 1, 2016,

however, the Trial Court took the motion up and

rendered an order granting the motion, dismissing

El-Khalidi’s claims with prejudice (App.40a-41a). ElKhalidi’s Motion to Reconsider (CR 2402) was denied

by operation of law. On El-Khalidi’s request, the

Trial Court rendered Findings of Facts and Conclusion

of Law in support of its dismissal Order (App.35a39a).

El-Khalidi appealed the Trial Court’s ruling to

the Court of Appeals for the Ninth Court of Appeals

District of Texas, contending, among other issues,

that the lower court failed to abide by the requirements

of the Americans With Disabilities Act when it refused

to order his deposition to be taken remotely through

video conferencing technology (App.61a-66a). The Court

of Appeals rejected this argument, ruling that ElKhalidi had failed to produce evidence that “conclusively proved” his inability to travel and so the Trial

16

Court was not required to provide him with accommodations for his disability (Appx.13a-14a). El-Khalidi

challenged this conclusion in his Petition for Review

to the Texas Supreme Court (App.56a-60a) but that

court rejected his arguments by denying review without comment (App.1a). From these rulings, Petitioner

Hatem El-Khalidi prosecutes this Petition for Writ of

Certiorari.

C.

Presentation of the Americans With Disabilities

Act Issue in the State Court Proceedings

El-Khalidi repeatedly raised issues concerning

the impact of his health conditions on his ability to

meet the Trial Court’s discovery requirements. In his

Plaintiff’s Motion to Reset Mediation and Deposition

Schedule, El-Khalidi explained that his health conditions prohibited him from traveling to Texas to sit for

his deposition:

Unfortunately, Plaintiff Hatem El-Khalidi

advised counsel that he has been unavoidably

detained in Saudi Arabia and has not been

able to conclude his affairs there in preparation for the move of his residence to the

United States. According to Mr. El-Khalidi,

his inability to travel to the United States

in time to keep the pending schedule arises

from two issues.

First, Mr. El-Khalidi was in Amman, Jordan

undergoing medical treatment at the Al

Khalidi & Medical Center for coronary heart

disease from October 2014 to December

2015. His doctors at that Hospital “strongly

advised” him not to travel any great dis-

17

tances. Mr. El-Khalidi continues to suffer

from the health conditions for which he sought

treatment in Amman. In combination with

his advanced age (Mr. El-Khalidi turned 91

years old this past September), Mr. El-Khalidi

reports that his health continues to limit his

ability to travel and is currently an impediment to his ability to return to the United

States for purposes of this litigation.

(App.93a). He supported this Motion with a Declaration

in which he testified about the details of his health

issues and care:

3. “In October 2014, my wife and I left Saudi

Arabia to travel to Amman, Jordan for

medical treatment at Al Khalidi Hospital &

Medical Center. Both she and I have been

suffering from significant health issues that

required treatment at this facility. We stayed

in Amman, Jordan until December 2015.

4. “I was treated at the Al Khalidi Hospital

& Medical Center for coronary heart disease.

My doctor has advised me against any

significant travel. A true and correct copy of

the letter from my doctor is attached to this

affidavit. There is a huge difference between

traveling from Amman, Jordan and traveling

back to the United States in terms of the

time and stress involved in such a trip. My

doctor approved me to travel back to Saudi

Arabia from Jordan but has not approved

me for travel to the United States.”

(App.95a). El-Khalidi explicitly referred to the Americans With Disabilities Act several times in the plead-

18

ings surrounding the consideration of his request that

his deposition be taken remotely or in Saudi Arabia,

including in his First Amended Brief in Support of

Plaintiffs’ Motion to Reset Mediation and Deposition

Schedule, in which he argued:

Title II of the American’s with Disability Act

recognizes Plaintiff’s advanced age (i.e. 92)

as a disability and compels that a reasonable accommodation (i.e. the request for 3-4

months extra time here) be allowed Plaintiff

to complete his move from Jeddah, Saudi

Arabia to his home in Savannah, GA; to get

some rest after moving hall [sic] his and his

wife’s furniture and belongings into their

home; and time to situate themselves and to

travel to Texas shortly thereafter to give his

deposition testimony in July of this year.

Further, this is only Plaintiff’s First Motion

to Reset his Deposition date in this case,

and under the circumstances here, GOOD

CAUSE HAS BEEN DULY SHOWN for

Plaintiff missing his first scheduled

deposition in this case this last January

2016, namely, Plaintiffs age disability,

heart condition (which has been duly documented to this Court), and his recent mouth

surgery (which comprised the extraction of 7

bridge teeth, and a second operation to

extract the roots that were missed in the

first operation) set him back time wise due

to a very long period of convalescence after

such a painful operation.

19

(App.89a). Similar arguments were presented in his

Plaintiffs’ Supplemental Response to Defendant’s

Second Motion for Sanctions, etc.:

6. Plaintiff urges the Court to find that his

health condition and/or advanced age constitutes a disability under the Americans with

Disabilities Act and that his request for

additional time in which to sit for his deposition constitutes a request for a reasonable

accommodation which the Title II of the

ADA compels be allowed.

(App.83a) and most clearly and extensively in his

Plaintiff’s Second Supplemental Brief in Support of

Plaintiff’s Second Motion to Reset Mediation and

Deposition Schedule and Order, filed on August 22,

2016, just prior to the Trial Court’s ruling dismissing

El-Khalidi’s suit:

The Court should grant Plaintiff’s Second

Motion, and Order that Plaintiff’s deposition

be taken according to a new schedule and by

remote live broadcast, because Plaintiff will

show that his advanced age and worsening

heart condition have made it impossible to

safely travel to the United States at this

time. Plaintiff is physically unable to travel

safely from Saudi Arabia to the United States

in order to be present for an in-person deposition which has been continuously required

by this Court throughout pendency of the

action. However, Plaintiff has always been,

and continues to be, fully willing and able to

provide a remote live broadcast deposition (by

telephone and/or online) in order to meet his

20

obligation to properly and fully engage in

the discovery process. This Court, in its discretion, is duly authorized to grant such a

request for a live remote deposition pursuant to Texas Rule of Civil Procedure 191.1

(b):

[...]

I. DISABILITY UNDER THE ADDAAA

Immobility due to heart disease is considered

“a disability” under the American’s with Disabilities Act of 1990 and the ADA Amendments Act of 2008 (ADAAA) as enacted on

September 25, 2008, and which became effective on January 1, 2009). (Americans With

Disabilities Act of 1990, Pub. L. No. 101-336,

104 Stat. 328 (1990); see also Exhibit 13

attached herein) The ADA is a federal civil

rights law that prohibits discrimination

against individuals with disabilities in

everyday activities and prohibits discrimination on the basis of disability in several

critical areas. Those areas include state and

local government services, places of public

accommodation, employment, telecommunications, and transportation.

Plaintiff has notified this Court and the

Defendant of Plaintiffs medical condition by

affidavit filed March 14, 2016 supported by

a Medical Report from his doctor dated October 3, 2015, which shows that Plaintiff has

been under treatment for coronary heart

disease since October 2014. (See Exhibit I

currently on file)

21

Plaintiff is not, and never has been, an

intransigent witness. Rather, his advanced

age and medical condition has made it

impossible for him to travel to Texas without risk to his life or well being. Plaintiff

has on several occasions committed to attend

his deposition and has several times prepared and made travel plans to attend his

deposition in Hardin County, Texas, but

physically could not travel on the respective

departure dates, nor could Plaintiff justify

the risk to his life for doing so just to attend

a deposition.

[...]

Plaintiff will also show that his medical

condition has worsened. He was just last

week diagnosed with chronic atrial fibrillation.

(See current Medical Report dated August II,

2016 attached as Exhibit 15). His worsening

condition was communicated to Defendant

through Defendant’s Counsel during the

last week of July 2016, and again asked for

the courtesy of a remote deposition by live

broadcast from Defendant during the last

week of July 2016, but Defendant again said

“no”, yet Defendant has shown no compelling

reason why it cannot effectively take Plaintiff’s deposition remotely, even though so

many other parties to Texas litigation routinely take effective remote depositions.

[...]

The present circumstances of this case-a 92

year-old plaintiff with a debilitating heart

22

condition and an ADA disability who simply

cannot engage in international travel at this

time-are exactly the kind of circumstances

under which a request for a live remote

broadcast deposition should be granted; both

pursuant to the Texas Rule of Civil Procedure

191.1 (b), and pursuant to the ADA If this

request is not granted, and as a result, this

case gets dismissed, then, in that event, the

Plaintiff would be effectively denied his fundamental right to his day in Court, simply

because of his disability which makes it

impossible for him to attend an in-person

deposition. This would be especially egregious,

when the Court could easily give him Due

Process by allowing for this accommodation,

which is fully contemplated by the Texas

Rules of Civil Procedure in the first place. In

effect, Plaintiff would be punished and

denied access to justice, simply because of

his disability. Not granting a remote deposition under these circumstances would be

tantamount to having a disabled plaintiff,

confined to a wheelchair, being told by a Court

that he would have to physically get out of

the wheelchair and walk up the stairs and

into the courtroom in order to have his case

heard by a jury.

Furthermore, the Court would be effectively

telling him that if the disabled plaintiff

could not do so, then his case would be

dismissed, NOT on the merits, but simply

because of his disability. This would be a

clear denial of due process. We should not

23

do the equivalent of locking the courthouse

doors, and then punishing the plaintiff for

not being able to get into the courthouse.

That would not be justice. Accordingly, this

Court should grant the requested motion

and allow the Plaintiff to be deposed by remote

means.

Plaintiff requests that this Court grant a

reasonable accommodation both pursuant to

Texas Rule of Civil Procedure 191.1 (b) and

under the ADA of allowing a disabled Plaintiff the courtesy of a remote deposition.

(App.71a-72a, 74a-75a, 76a, 77a-78a). El-Khalidi also

raised the request for an accommodation in his Motion

for Reconsideration in the Trial Court after the court’s

order dismissing his claims:

5. Plaintiff urges the Court to find that his

heart condition constitutes a disability under

the Americans with Disabilities Act and that

his request for additional time and a remote

deposition constitute a request for a reasonable accommodation which the ADA compels

be allowed.

(App.70a). The question of the applicability of the ADA

was unambiguously raised at the Trial Court level.

The Trial Court implicitly rejected El-Khalidi’s

request for an accommodation when it explicitly

overruled his Motion to Reset the Schedule in its

Findings of Facts and Conclusions of Law:

7. El Khalidi’s Motion to Reset Mediation

and Deposition Schedule, and all supplements

and amendments thereto, lack merit and

24

are denied because El Khalidi has presented

no valid and compelling reason for his

failure to appear for deposition for more

than five years.

(App.39a). Thus, the issue of the question of the

applicability of the ADA was decided at the Trial

Court level as well.

And the ADA accommodation was asserted in ElKhalidi’s Appellate Brief before the Court of Appeals

for the Ninth Court of Appeals District of Texas, from

the Table of Contents, through the Statement of the

Issues Presented, and fleshed out in the arguments

presented in the Brief (App.62a-66a). The Court of

Appeals rejected these arguments, acknowledging that

El-Khalidi had requested an accommodation under the

ADA but concluding that the Trial Court was free to

reject that request because the evidence did not

“conclusively prove[ ]” that El-Khalidi’s disability

prevented him from traveling:

In issue one, El-Khalidi argues the trial

court violated the Americans with Disabilities

Act by refusing to accommodate his requests

to reschedule his deposition to a date that

he could travel, or to require AADC to depose him in Saudi Arabia by remote electronic

means. See generally 42 U.S.C. §§ 1210112213. . . . Nonetheless, the question in this

case is whether the trial court abused its

discretion by refusing El-Khalidi’s request

to require that AADC take his deposition in

Saudi Arabia by remote electronic means.

Resolving that question turns on whether

the evidence that was before the trial court

25

conclusively proved that El-Khalidi could

not travel during the period of time that

AADC sought to secure his testimony. In

our opinion, the facts before the trial court

allowed the trial court to reject El-Khalidi’s

claim that he was not healthy enough to

travel to Texas.

(App.13a-14a). El-Khalidi challenged this ruling in

his Petition for Review to the Texas Supreme Court

(App.58a-60a) as well as his Motion for Rehearing of

that court’s denial of the petition for review (App.54a55a). Again, the record clearly reflects that the issue

of the applicability of the ADA to the proceedings

before the Texas state district court were raised and

ruled on throughout the state appellate proceedings.

REASONS FOR GRANTING THIS PETITION

This case deserves review by the Court for the

reasons that follow.

A.

THE STATE COURT’S REQUIREMENT THAT A

DISABILITY LIMITATION MUST BE “CONCLUSIVELY

PROVED” TO MANDATE AN ACCOMMODATION UNDER

THE AMERICANS WITH DISABILITIES ACT OUGHT

TO BE CONSIDERED BY THIS COURT AS IT CONFLICTS

WITH CONGRESS’S STATUTORY DIRECTIVES AND

WITH THE WELL-ESTABLISHED BURDENS OF PROOF

ON THE ISSUE SET BY THE FEDERAL COURTS

Mr. El-Khalidi repeatedly demonstrated that he

was unable to appear for his deposition because of

his health, testifying that he suffered from coronary

26

heart disease that prevented him from traveling to

the United States from Saudi Arabia (see, e.g., App.79a,

95a-98a (CR 1884, 1886, 2392)). The Court of Appeals

found that Mr. El-Khalidi’s evidence did not “conclusively prove that he was too ill to travel” (App.13a;

El-Khalidi, 2017 WL 5179967 *5 (emphasis added)).

This misstates the burden as a matter of federal law.

The ADA was amended in 2009 to correct “precedent perceived as improperly narrowing the scope of

protection” provided by the ADA. Weed v. Sidewinder

Drilling, Inc., 245 F.Supp.3d 826, 843 (S.D. Tex.

2017). As explained by the 6th Circuit Court of Appeals,

Congress intended for the issue of the existence of a

disability to be an easily surmountable requirement

of the statute:

Having concluded that the courts were

defining “disability” too narrowly, Congress

amended the ADA in 2008 to state that

the term should be construed “in favor of

broad coverage . . . , to the maximum extent

permitted by the [ADA’s] terms.” 42 U.S.C.

§ 12102(4)(A); ADA Amendments Act

(“ADAAA”), Pub. L. No. 110-325, § 2, 122

Stat. 3553 (2008). . . . Congress also cautioned

that “the question of whether an individual’s

impairment is a disability . . . should not

demand extensive analysis.” ADAAA § 2(b)(5).

Barlia v. MWI Veterinary Supply, Inc., 721 Fed. Appx.

439, 445 (6th Cir. 2018).

Other federal courts have routinely dealt with

the question of whether the litigant actually has a

disability as a factual issue, requiring only enough

evidence to create a fact issue for the fact finder to

27

resolve. See, e.g., id. at 445-446 (reversing lower court

ruling as evidence did not preclude a reasonable fact

finder from concluding plaintiff was “actually disabled”);

Williams v. FedEx Corp. Services, 849 F.3d 889, 89899 (10th Cir. 2017) (requiring evidence “evidence from

which a reasonable jury could find that FedEx

discriminated against him because of his disability”);

Alexander v. Washington Metro. Area Transit Auth.,

826 F.3d 544, 550 (D.C. Cir. 2016) (reversing summary judgment “because a reasonable jury considering the proffered evidence could conclude both that

Alexander has a qualifying “disability” under all

three definitions of the term in the Rehabilitation

Act”); Silk v. Bd. of Trustees, Moraine Valley Cmty.

Coll., Dist. No. 524, 795 F.3d 698, 706 (7th Cir. 2015)

(“In order to succeed on his [ADA] claim, Silk must

provide sufficient evidence from which a reasonable

jury could conclude that he was an individual with a

disability within the meaning of the statute” (internal quotation omitted); Carmona v. Sw. Airlines Co.,

604 F.3d 848, 859 (5th Cir. 2010) (finding evidence

that “allowed a reasonable jury to conclude that

[plaintiff] had an impairment” sufficient).

The Texas’s courts’ decisions here conflicts with

Congress’s intent expressed in the ADAAA and with

the well-established federal law concerning the burdens

of proof required to invoke the ADA itself. This Court

ought to act accept this case for review to instruct the

state courts on the proper burden of proof faced by

state court litigants seeking to invoke the protection

of Title II of the Americans With Disabilities Act.

28

B.

THE TEXAS STATE COURTS’ TREATMENT OF TITLE

II THE AMERICANS WITH DISABILITIES ACT OUGHT

TO BE CONSIDERED BY THIS COURT

Secondly, the Court should take this matter up

to consider whether the Texas State courts are properly

applying Tittle II of the Americans with Disabilities

Act to proceedings in the state’s courts. The ADA

applies to state courts and requires that the courts

provide “reasonable accommodations” to disabled civil

litigants to protect those litigants fundamental due

process right “to meaningfully participate in the

process[.]”Muhammad v. Court of Common Pleas of

Allegheny County, Pennsylvania, 483 Fed.Appx. 759,

763, 764 (3rd Cir. 2012); see also Tennessee v. Lane,

124 S.Ct. 1978, 1988, 1994 (2004).

While true that the Tennessee v. Lane case dealt

with physical access to the courthouse, the Muhammad

v. Court of Common Pleas of Allegheny County,

Pennsylvania opinion expands upon that basis to

include the ability to participate in the proceeding.

Muhammad, 483 F.Appx. At 764. This is a logical extension given Tennessee v. Lane’s description of the

right at issue to “require[ ] the States to afford

certain civil litigants a ‘meaningful opportunity to be

heard’ by removing obstacles to their full participation

in judicial proceedings.” Tennessee v. Lane, 124 S.Ct.

at 1988. The right protects against government action

that precludes a civil litigant from obtaining evidence

necessary to prosecute a claim. See Christopher v.

Harbury, 536 U.S. 403, 414 (2002) (citing Foster v.

Lake Jackson, 28 F.3d 425, 429 (5th Cir. 1994); Bell

v. Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984);

Swekel v. River Rouge, 119 F.3d 1259, 1261 (6th Cir.

29

1997)); see also Valdez v. Roybal, 186 F.Supp.3d 1197,

1248 (D. New Mexico 2016).

Other state courts have not hesitated to apply

the ADA’s reasonable accommodation framework to

disabled litigants. Some states, such as Maine, have

established formal guidelines governing accommodations. See Blackhouse v. Doe, 24 A.3d 72, 74-76

(Maine 2011) (applying court’s Me. Judicial Branch,

Accommodation Request Procedure, in route to

reversing judgment for failure to accommodate disabled

litigant). Other states have taken the “common law”

approach to the question and are developing their procedures through the case law method of decision.

Sanieoff v. Curtis, 2014 WL 5426895, at *2 (Mass.

Dist. Ct. 2014), aff’d, 57 N.E.3d 1065 (Mass. App. Ct.

2016) (examining accommodations provided by trial

court, finding them appropriate under ADA, and

affirming judgment); Weathers v. Arkansas Dept. of

Human Services, 433 S.W.3d 271, 277-78 (Ark. App.

2014) (finding that trial court did not disregard litigant’s

disabilities where it acknowledged the disability in

its order and appointed an attorney ad litem to represent the litigant).

Texas’s courts, however, are adopting a hostile,

only-if-forced approach to the application of Title II

to procedures governing matters pending before them.

The first Texas state appellate court decision to

address these issues simply declared that the question

of the applicability of the ADA was required to be

litigated in a separate action, essentially refusing to

apply the ADA accommodation requirements to court

proceedings. Magnuson v. Mullen, 65 S.W.3d 815 (Tex.

App.–Fort Worth 2002, pet. denied). In the case at

30

bar, the Court of Appeals assumed that the ADA

applied to the Trial Judge’s application of the Rules

of Civil Procedure but imposed the burden of conclusively proving the limitations caused by his disability

on Mr. El-Khalidi to show that the Trial Court erred.

(App.13a, El-Khalidi, 2017 WL 5179967, *4-5).

The Texas state courts are refusing to follow

Congress’s and this Court’s directions regarding the

important role the ADA plays in protecting disabled

litigants’ constitutional right to meaningfully participate in court proceedings in which they are involved.

This Court ought to take this matter up for review to

establish, once and for all, the proper approach to

these important issues that must be followed in the

courts throughout the land.

31

CONCLUSION

For these reasons, Petitioner Hatem El-Khalidi

requests that this Court grant his Petition for Writ of

Certiorari, consider the Texas state court’s orders,

and reverse the dismissal of his claims.

Respectfully submitted,

THOMAS B. COWART

COUNSEL OF RECORD

WASOFF & COWART, PLLC

100 N. CENTRAL EXPRESSWAY

SUITE 901

RICHARDSON, TX 75080

(214) 692-9700

TOM@TCOWART.COM

CARL F. MELITO

ATTORNEY AT LAW

12225 GREENVILLE AVE.

SUITE 700

DALLAS, TX 75243

(972) 234-3966

CARL@MELITO.COM

COUNSEL FOR PETITIONER

AUGUST 22, 2018