Petition for Writ of Certiorari — Parts Galore L.L.C., et al., Petitioners v. Jacqueline Harrison

No. _________

In The

Supreme Court of the United States

PARTS GALORE L.L.C. and

SOAVE ENTERPRISES L.L.C.,

Petitioners,

v.

JACQUELINE HARRISON,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_____________________

PETITION FOR WRIT OF CERTIORARI

_____________________

Michael F. Smith*

Counsel of Record

THE SMITH APPELLATE LAW FIRM

1717 Pennsylvania Avenue N.W.

Suite 1025

Washington, D.C. 20006

(202) 454-2860

smith@smithpllc.com

John J. O’Shea

LAW OFFICE OF JOHN J. O’SHEA P.L.C.

18000 Mack Avenue

Grosse Pointe, MI 48230

(313) 884-2000

oshealaw@att.net

Counsel for Petitioners

QUESTIONS PRESENTED

Congress in 2008 amended the employment provisions of the

Americans with Disabilities Act, expanding some key sections and

admonishing courts to construe the Act broadly in favor of coverage.

EEOC issued regulations that in places expanded the amendments’

reach even further, and also purported to tell courts how to construe

and apply the law.

In this ADA action, the district court granted summary judgment

because plaintiff’s alleged knee condition, of which she offered no

supporting medical evidence, was not a physical impairment that, by

plaintiff’s own testimony, substantially limited a major life activity.

Plaintiff appealed, and EEOC in an amicus curiae brief offered

guidance that relied on its expanded regulations and broadened them

still further, declaring categorically that ADA plaintiffs need not

provide any “medical evidence” of their substantially limiting

condition. The appellate court agreed and reversed.

1.

Should this Court overrule Kisor v. Wilkie, 139 S. Ct. 2400 (2019),

Auer v. Robbins, 519 U.S. 452 (1997) and Bowles v. Seminole Rock &

Sand Co., 325 US. 410 (1945) and direct federal courts to stop giving

deference to an agency interpretation of its own regulation except to

the extent that interpretation is persuasive?

2.

Should this Court overrule Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984) and direct courts to stop

giving deference to agency regulations interpreting statutes except to

the extent the regulations are persuasive?

i

ii

PARTIES TO THE PROCEEDING

Parts Galore L.L.C. and Soave Enterprises L.L.C., petitioners on review,

were defendants-appellees below.

Jacqueline Harrison, respondent on review, was the plaintiff-appellee below.

RULE 29.6 CORPORATE DISCLOSURE STATEMENT

Neither Petitioner Parts Galore L.L.C. nor Petitioner Soave Enterprises

L.L.C. has a parent corporation. No publicly held company owns 10 percent or more

of either Petitioner.

iii

RELATED PROCEEDINGS

U.S. Court of Appeals for the Sixth Circuit:

Harrison v. Soave Enterprises L.L.C., No. 19-1176 (6th Cir.

Sept. 10, 2020) (reported at 826 Fed. App’x 517)

U.S. District Court for the Eastern District of Michigan:

Harrison v. Soave Enterprises L.L.C., No. 16-cv-14084 (E.D.

Mich. Jan. 23, 2019) is unreported, but available at 2019

Westlaw 216699

iv

TABLE OF CONTENTS

Page:

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

PARTIES TO THE PROCEEDING .............................................................................. ii

RULE 29.6 CORPORATE DISCLOSURE STATEMENT............................................ ii

RELATED PROCEEDINGS......................................................................................... iii

TABLE OF CONTENTS ............................................................................................... iv

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

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

INTRODUCTION .......................................................................................................... 1

OPINIONS AND ORDERS BELOW............................................................................. 3

JURISDICTION............................................................................................................. 3

STATUTORY AND REGULATORY PROVISIONS INVOLVED................................ 3

STATEMENT OF THE CASE....................................................................................... 3

I.

Harrison’s employment and termination ................................................ 3

II.

Congress expands the ADA, and EEOC expands on Congress’

work .......................................................................................................... 6

III.

Harrison files suit, and the district court grants summary

judgment ................................................................................................... 9

IV.

EEOC injects itself into the case and further expands its

regulatory guidance................................................................................ 10

REASONS FOR GRANTING THE WRIT .................................................................. 13

I.

The Sixth Circuit’s agreement with EEOC’s amicus guidance, two

steps beyond the statutory text, shows why Auer deference is

inappropriate and should be scrapped .................................................. 13

II.

Chevron deference also should be ended ............................................... 22

CONCLUSION/RELIEF REQUESTED ..................................................................... 27

v

APPENDIX:

APPENDIX A

Opinion

U.S. Court of Appeals for the Sixth Circuit

No. 19-1176, Harrison v. Soave Enterprises L.L.C. and Parts Galore L.L.C.

entered September 10, 2020 ............................................................................. 1a

APPENDIX B

Opinion and Order

U.S. District Court for the Eastern District of Michigan, Southern Division

No. 16-14084, Harrison v. Soave Enterprises L.L.C. and Parts Galore L.L.C.

entered January 23, 2019 ............................................................................... 17a

APPENDIX C

Dismissal and Notice of Rights

U.S. Equal Employment Opportunity Commission

dated August 17, 2016 .................................................................................... 29a

APPENDIX D

Order Denying Petition for En Banc Rehearing

U.S. Court of Appeals for the Sixth Circuit

No. 19-1176, Harrison v. Soave Enterprises L.L.C. and Parts Galore LLC

entered October 13, 2020 ................................................................................ 31a

APPENDIX E

Americans with Disabilities Act of 1990, as Amended (excerpt)

Title 42 U.S.C. §§ 12101-12117 ................................................................................. 32a

APPENDIX F

Amicus Curiae Brief of U.S. Equal Employment Opportunity Commission

In Support of Plaintiff-Appellant

No. 19-1176, Harrison v. Soave Enterprises L.L.C. and Parts Galore L.L.C.

filed April 24, 2019 .......................................................................................... 53a

APPENDIX G

U.S. Equal Employment Opportunity Commission

29 CFR Part 1630; Regulations to Implement the

Equal Employment Provisions of the Americans With Disabilities Act,

as Amended; Final Rule

dated March 25, 2011.................................................................................... 115a

vi

TABLE OF AUTHORITIES

Page(s):

Constituional Provisions

U.S. CONST. art. I, § 7 ................................................................................................. 22

U.S. CONST. art. III ...................................................................................................... 20

Cases

Auer v. Robbins,

519 U.S. 452 (1997) ............................................................................................. passim

Actavis Elizabeth LLC v. FDA,

625 F.3d 760 (D.C. Cir. 2010)..................................................................................... 18

Baker v. Roman Catholic Archdiocese of San Diego,

725 F. App’x 531 (9th Cir. 2018) ............................................................................ 16

Barlia v. MWI Veterinary Supply, Inc.,

721 F. App’x 439 (6th Cir. 2018) ...................................................................... 15, 16

Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410 (1945) ................................................................................. i, 14, 20, 22

Cady v. Remington Arms Co.,

665 F. App’x 413 (6th Cir. 2016) ............................................................................ 15

Cary v. Curtis,

3 How. 236, 11 L. Ed. 576 (1845) ........................................................................... 14

Chevron U.S.A., Inc. v. NRDC,

147 U.S. 837 (1984) ............................................................................. i, 2, 22, 23, 25

City of Arlington v. F.C.C.,

569 U.S. 290 (2013) ................................................................................................ 21

Decker v. Northwest Envtl. Def. Ctr.,

568 U.S. 597 (2013) ................................................................................................ 22

Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612 (2018) ............................................................................................ 25

Exby-Stolley v. Bd. of Cty. Commissioners,

979 F.3d 784 (10th Cir. 2020) ................................................................................ 16

vii

Farina v. Branford Bd. of Educ.,

458 Fed. App’x 13 (2d Cir. 2011)............................................................................ 15

Free Enterprise Fund v. Public Company Accounting Oversight Bd.,

561 U.S. 477 (2010) ................................................................................................ 21

Hostettler v. Coll. of Wooster,

895 F.3d 844 (6th Cir. 2018) .................................................................................. 15

INS v. Chaudha,

462 U.S. 919 (1983) ................................................................................................ 22

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) .....................................................................................passim

Morris v. BNSF Ry. Co.,

817 F.3d 1104 (8th Cir. 2016) ................................................................................ 26

Morrissey v. Laurel Health Care Co.,

946 F.3d 292 (6th Cir. 2019) ....................................................................... 12-13, 15

Nunies v. HIE Holdings, Inc.,

908 F.3d 428 (9th Cir. 2018) .................................................................................. 16

Ogden v. Blackledge,

2 Cranch 272, 2 L. Ed. 276 (1804) ......................................................................... 24

Pauley v. BethEnergy Mines, Inc.

501 U.S. 680 (1991) ................................................................................................ 17

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) ................................................................................................ 24

Richardson v. Chicago Transit Auth.,

926 F.3d 881 (7th Cir. 2019) ............................................................................ 25, 26

SAS Inst., Inc. v. Iancu,

138 S. Ct. 1348 (2018) ............................................................................................ 25

Sutton v. United Air Lines, Inc.,

527 U.S. 471 (1999) .................................................................................................. 6

Tesone v. Empire Mktg. Strategies,

942 F.3d 979 (10th Cir. 2019) ................................................................................ 16

Thomas Jefferson Univ. v. Shalala,

512 U.S. 504 (1994) ................................................................................................ 17

viii

Toyota Motor Mfg. Ky., Inc. v. Williams,

534 U.S. 184 (2002) .................................................................................................. 6

United States v. Mead Corp.,

533 U.S. 218 (2001) ................................................................................................ 15

Statutes

5 U.S.C. § 553 ......................................................................................................... 18, 19

5 U.S.C. § 706 ............................................................................................................... 18

28 U.S.C. § 1254(1) ........................................................................................................ 3

28 U.S.C. § 1331 ............................................................................................................. 3

42 U.S.C. § 12101 ............................................................................................... 6, 11, 24

42 U.S.C. § 12101 (Note) ................................................................................... 7, 12, 24

42 U.S.C. § 12102 ........................................................................................................... 6

42 U.S.C. § 12102(1) ...................................................................................................... 6

42 U.S.C. § 12102(1)(A) ................................................................................................. 6

42 U.S.C. § 12102(2) ...................................................................................................... 6

42 U.S.C. § 12102(2)(A) ......................................................................................... 12, 19

42 U.S.C. § 12102(4)(A) ..................................................................................... 6, 12, 24

42 U.S.C. § 12102(4)(B) ........................................................................................... 6, 24

Americans with Disabilities Act Amendments Act of 2008,

154 Cong. Rec. S8342-01 (Sept. 11, 2008) ......................................................passim

Regulations

29 C.F.R. § 1630.2(h) ............................................................................................. 11, 26

29 C.F.R. § 1630.2(i)(1)(i)....................................................................................... 12, 19

29 C.F.R. § 1630.2(i)(1)(ii) ................................................................................. 7, 12, 23

29 C.F.R. § 1630.2(i)(2) ...................................................................................... 7, 12, 23

29 C.F.R. § 1630.2(j) .............................................................................................. 11, 17

ix

29 C.F.R. § 1630.2(j)(1)(i)................................................................................... 7, 12, 23

29 C.F.R. § 1630.2(j)(1)(ii) ............................................................................................. 8

29 C.F.R. § 1630.2(j)(1)(iii) ...................................................................................... 8, 23

29 C.F.R. § 1630.2(j)(1)(iv) ....................................................................................... 8, 24

29 C.F.R. § 1630.2(j)(1)(v) .....................................................................................passim

29 C.F.R. § 1630.2(j)(3)(i)-(ii) ......................................................................................... 9

29 C.F.R. § 1630.2(j)(3)(iii) ............................................................................................ 9

29 C.F.R. § 1630.2(j)(4)(iv) ............................................................................................. 9

Other Authorities

Cooley, Constitutional Limitations 95 (1868) ....................................................... 13, 24

Cox, Judge Learned Hand and the Interpretation of Statutes,

60 Harv. L. Rev. 370 (1947) ................................................................................... 20

Kavanaugh, Keynote Address: Justice Scalia and Deference

19:06 (June 2, 2016), available at http://vimeo.com/169758593 ........................... 22

Kavanaugh, Fixing Statutory Interpretation,

129 Harv. L. Rev. 2118 (2016) ......................................................................... 20, 22

Melone, Wilkie: Auer Deference is Alive but Not So Well, Is Chevron Next?.,

12 E.U.L. Rev. 581 (2020) ...................................................................................... 20

Note, Auer 2.0: The Disuniform Application of Auer Deference After

Kisor v. Wilkie, 88 Fordham L. Rev. 2011 (2020) ................................................ 20

NO. ___________

___________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

___________________________________________

PARTS GALORE L.L.C. and

SOAVE ENTERPRISES L.L.C.,

v.

Petitioners,

JACQUELINE HARRISON,

________________

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

________________

PETITION FOR A WRIT OF CERTIORARI

________________

Petitioners Parts Galore L.L.C. and Soave Enterprises L.L.C. respectfully

petition for a writ of certiorari to review the judgment of the United States Court of

Appeals for the Sixth Circuit.

INTRODUCTION

This Court in Kisor v. Wilkie, 139 S. Ct. 2400 (2019) set out to reform Auer

deference into a doctrine “not quite so tame as some might hope, but not nearly so

menacing as they might fear.” Id. at 2418. As this case shows, the beast still roars,

and should be put down for good.

Congress in 2008 amended the Americans with Disabilities Act to override

certain of this Court’s decisions, and the Equal Employment Opportunity Commission

(EEOC) revised its regulations. EEOC exceeded the new statutory language in several

key areas, and also issued rules of construction and evidentiary admonishments to

1

2

courts that, if followed, would all but end summary judgment in ADA cases. Among

other things, EEOC’s regulations expand the statutory term “major life activities” to

include several not listed in the statute, including an unlimited catchall

“musculoskeletal function” – i.e., moving around. And EEOC included among its

admonishments to the judiciary its view that comparison of a plaintiff’s performance of

a major life activity to that of the same activity by most people in the general

population “usually will not require scientific, medical or statistical analysis.”

In this matter, former auto-parts salvage-yard manager Jacqueline Harrison

sued under the ADAAA, alleging unlawful termination relating to knee problems

she says prevent her from kneeling. The district court granted Parts Galore

summary judgment, finding that Harrison’s alleged knee condition did not

substantially limit her in any major life activity recognized under the statute. When

Harrison appealed, EEOC weighed in as amicus, citing its own regulation’s

expanded list of “major life activities” and stating categorically that requiring any

plaintiff to provide “medical evidence” of impairment would contradict Congress’

express intent. The Sixth Circuit agreed with EEOC and reversed.

As this case shows, Kisor has not reigned in Auer. EEOC’s amicus-brief

guidance meets all the “markers” Kisor set down, yet the end result was a judicial

ruling as far afield from Congress’s handiwork as anything Auer ever allowed. And

because the Sixth Circuit also gave deference to EEOC regulations that exceed the

statute, this case additionally provides an example of Chevron’s infirmities. The

Court should grant certiorari and scrap both doctrines.

3

OPINIONS AND ORDERS BELOW

1.

The Sixth Circuit’s September 10, 2020 opinion (App 1a) is unpublished, but

may be found at 826 Fed. App’x 917. Its October 13, 2020 order denying rehearing en

banc (App 31a) also is unreported.

2.

The district court’s January 23, 2019 opinion and order granting summary

judgment (App 17a) is unreported but may be found at 2019 Westlaw 296699.

JURISDICTION

The judgment of the Court of Appeals was entered on September 10, 2020. A

timely petition for rehearing en banc was denied on October 13, 2020. App. 31a.

Supreme Court Rule 13.1, in combination with this Court’s Order of March 19, 2020,

allows for 150 days within which to file a Petition for a Writ of Certiorari after entry

of the judgment of the Court of Appeals. Accordingly, this Petition is timely.

The district court had jurisdiction under 28 U.S.C. § 1331.

This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY PROVISIONS INVOLVED

Relevant provisions of the Americans with Disabilities Act as Amended of 2008

(“ADAAA”), EEOC regulations, and EEOC’s amicus-brief guidance to the Sixth

Circuit, are reproduced in the Appendix. App. 32a-155a.

STATEMENT OF THE CASE

I.

Harrison’s employment and termination

Respondent Jacqueline Harrison from 2005 to 2015 worked as Manager of a

self-service used auto parts yard in Detroit run by Petitioner Parts Galore; she was

similarly employed by a predecessor since the 1980s. At the yard, customers pay a $2

4

entry fee to access salvage vehicles and remove parts using their own tools. Harrison’s

job duties included inspecting the 27-acre yard and checking for improperly placed

cars, holes in the fence, slacking employees, and any other problem.

According to Harrison, in 2010 or 2011 she suffered a torn ACL when she

slipped while showering at home. She reported having knee surgery then to repair a

torn meniscus but decided not to have the ACL repaired, a decision her doctor

agreed with since she was able to function. Harrison missed two days of work for

the surgery, and returned to work the following Monday with no limitations or

restrictions.

In 2014, a new Regional Manager, Stephan A. “Tony” Murell, was hired, and

found many problems at Harrison’s yard. He instituted several changes, including

requiring Harrison to randomly spot-check five vehicles each day prior to their

placement in the yard, to confirm employees had properly conducted the 17-step

preparation process. The spot-checks required Harrison to look under each vehicle’s

hood to make sure engine fluids had been drained and the battery removed, and to

look beneath each vehicle to confirm its catalytic converter had been removed,

which required her to kneel.

At some point, Harrison told Murrell she could not kneel to look beneath the

vehicles, and asked him to buy her a mirror on an extension arm, like those used by

motor-carrier police to inspect truck undersides. Murrell bought the mirror, and

Harrison testified that, once equipped with it, she could perform all her job duties

without limitation.

5

A.

I did everything. I washed windows, I scrubbed floors, I

clean[ed] toilets, I picked up parts, I picked up batteries, I

participated in the community and cleaned up neighborhoods,

delivered turkeys. No. There was no part of my job that I could

not do. [USDC RE 23-2 Harrison Dep., Page ID # 303-304].

Other than a mirror, Harrison never requested any accommodation to perform

her job duties, because she didn’t need one. She identified four lingering issues with

her knee:

It enables me [sic] from walking long distances because of the stability.

I have to be careful on inclines because of the stability. I can’t walk on

rocks because of the stability. And I can’t kneel because of that. [Id.,

Page ID # 215].

Throughout 2015 Murrell identified several instances of intransigence and

insubordination by Harrison, and believed she was not spot-checking the required

five vehicles each day. Harrison denied most of the charges, though admitted

confronting Murrell and criticizing him on one occasion. She claimed she had

approval to delegate some of the spot checks, and did not cite her knee or any other

physical limitation as preventing her from doing them. Similarly, though she

weighed 300 pounds, Harrison never claimed her weight impeded her job

performance, and no doctor told her she was medically obese.

On August 26, 2015, Murrell called Harrison into a meeting at the offices of

Petitioner Soave Enterprises and terminated her. Harrison later claimed being told

the termination was “because I can no longer do my duties because I have a torn

ACL,” which Murrell denies.

6

II.

Congress expands the ADA, and EEOC expands on Congress’ work.

Believing that this Court in Sutton v. United Air Lines, Inc., 527 U.S. 471

(1999) and Toyota Motor Mfg. Ky., Inc. v. Williams, 534 U.S. 184 (2002) had unduly

narrowed the ADA’s coverage, Congress in 2008 amended the Act. ADA

Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (Sept. 25, 2008)

(“ADAAA”); App. 95a. The amendment redefined several key statutory terms,

including “substantial limitation,” “major life activity,” and “being regarded as

having such an impairment,” though it neither amended the statutory definition of

“impairment” nor criticized judicial construction of it. See ADAAA § 4, “Disability

Defined and Rules of Construction,” App. 97a-98a (codified at 42 U.S.C. § 12102).

With regard to “major life activities,” the amended statute set forth a non-exclusive

list that Congress augmented with another non-exclusive list of “major bodily

functions,” the operation of which also constitute a “major life activity.” 42 U.S.C. §

12102(2).

Congress also set forth detailed rules instructing how courts “shall” construe

both the term “disability” as used in 42 U.S.C. § 12102(1) (“in favor of broad

coverage of individuals”) and “substantially limits” as used in 42 U.S.C. §

12102(1)(A)’s definition of being actually disabled (“consistent[] with the findings

and purposes of” the ADAAA). ADAAA § 4(a) (codified at 42 U.S.C. § 12102(4)

(A)&(B)), App. 97a; 42a. It told the judiciary the “primary object of attention” in

ADA cases “should be whether entities covered under the ADA have complied with

their obligations” and that the question of whether an individual’s impairment is an

7

ADA disability “should not demand extensive analysis.” ADAAA § 2(b)(5), 42 U.S.C.

§ 12101 (Note), App 96a, 41a. Congress also found that EEOC’s original ADA

regulations defining the term “substantially limits” were inconsistent with

congressional intent by “expressing too high a standard,” and voiced its expectation

that EEOC would revise its regulations accordingly. ADAAA § 2(a)(8), (b)(6), 42

U.S.C. § 12101 (Note), App. 96a, 40a.

EEOC in September 2009 issued its Notice of Proposed Rulemaking, and its

final ADAAA regulations took effect in March 2011. App. 115a. The regulations

expand the statutory term “major life activities” to include several activities and

bodily functions beyond those listed in the statute, including the operation of

“musculoskeletal function.” See Final Rule, 76 Fed. Reg. 16978 (Sept. 22, 2011); 29

C.F.R. § 1630.2(i)(1)(ii), App. 138a. In addition to expanding the list of “major life

activities,” EEOC’s regulation directs that, in determining other examples of such

activities, “the term ‘major’ shall not be interpreted strictly to create a demanding

standard for disability.” 29 C.F.R. § 1630.2(i)(2), citing ADAAA § 2(b)(4) (Findings

and Purposes), App. 138a.

Regarding the statutory term “substantially limits,” EEOC’s regulation

imposes nine “rules of construction,” each designed to constrain judicial

interpretation of the statutory language and ease a plaintiff’s path to the jury. Among

other things, EEOC’s regulation states that “substantially limits” “shall be construed

broadly in favor of expansive coverage, to the maximum extent permitted by the

terms of the ADA,” and “is not meant to be a demanding standard.” 29 C.F.R. §

8

1630.2(j)(1)(i), App. 138a. An impairment will be considered a disability if it

“substantially limits the ability of an individual to perform a major life activity as

compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii), App.

138a.

Chipping away at the statutory language of “substantially limits,” EEOC’s

regulation further provides that an impairment “need not prevent, or significantly

or severely restrict, the individual from performing a major life activity in order to

be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii), App. 138a. Echoing

the amended statute’s “Purposes” section while at the same time contradicting its

substantive provisions, EEOC’s regulation admonishes that “[t]he primary object of

attention in cases brought under the ADA should be whether covered entities have

complied with their obligations and whether discrimination has occurred, not

whether an individual’s impairment substantially limits a major life activity.” 29

C.F.R. § 1630.2(j)(1)(iii), App. 138a (emphasis added). “Accordingly, the threshold

issue of whether an impairment ‘substantially limits’ a major life activity should not

demand extensive analysis.” Ibid.

Without specifying an exact level, the regulation provides that “the term

‘substantially limits’ shall be interpreted and applied to require a degree of

functional limitation that is lower than the standard for ‘substantially limits’

applied prior to the ADAAA.” 29 C.F.R. § 1630.2(j)(1)(iv), App. 138a. And it opines

that comparing an individual’s performance of a major life activity to the

performance of the same activity by most people in the general population “usually

9

will not require scientific, medical or statistical analysis.” 29 C.F.R. § 1630.2(j)(1)(v),

App. 138a.

EEOC’s regulations summarize that their “rules of construction” are

“intended to provide for more generous coverage and application of the ADA’s

prohibition on discrimination through a framework that is predictable, consistent,

and workable” for everyone, and that some types of impairments “will, in virtually

all cases, result in a determination coverage” under the “actually disabled” or

“record of” prongs of the statutory definition. 29 C.F.R. § 1630.2(j)(3)(i)-(ii), App.

139a. And to remove any remaining doubt, the regulation explicitly lists 17 types of

impairments for which it “should easily be concluded” a corresponding major life

activity will be substantially limited. 29 C.F.R. § 1630.2(j)(3)(iii), App. 139a. Indeed,

EEOC elsewhere advises that given its nine rules of construction, “it may often be

unnecessary” to conduct any factual analysis, particularly with regard to the list of

17 impairments, which “should easily be found to impose a substantial limitation,”

requiring a “particularly simple and straightforward” assessment. See 29 C.F.R. §

1630.2(j)(4)(iv), App. 139a.

III.

Harrison files suit, and the district court grants summary judgment.

Post-termination, Harrison filed an EEOC charge against her employer,

Ferrous Processing and Trading Company – though not against Parts Galore or

Soave – alleging discrimination based on her race (white), age and disability. After

EEOC issued a right-to-sue letter (App. 29a), Harrison in 2016 filed her two-count

complaint in this action – not against Ferrous, but against Parts Galore and Soave

10

(collectively, “Parts Galore”). Count I alleged termination in violation of the

ADAAA, identifying as disabilities her torn ACL and “medical obesity,” though she

later abandoned the latter. She also alleged a Michigan-law count of weight

discrimination, but did not assert the race or age discrimination complaints she

brought in her EEOC charge.

Parts Galore sought summary judgment, arguing that Harrison could not

establish a prima facie case of disability discrimination and neither requested nor

needed any accommodation. It noted Harrison did not have a mental or physical

impairment that substantially limited a major life activity, and had submitted no

medical evidence to substantiate her knee condition. The district court granted

summary judgment, finding that Harrison’s claimed inability to kneel did not

substantially limit any major life activity. App. 17a.

IV.

EEOC injects itself into the case and further expands its regulatory guidance.

Harrison appealed on her ADAAA claim only, and argued that she is actually

disabled under the statute because she is limited in “walking and kneeling” when

compared to the general population, and also was “regarded as” being disabled.

Appearing for the first time in the action, EEOC filed an amicus brief more than

double the length of Harrison’s, signed by its top legal officer and three

subordinates, relying heavily and in some instances even expanding on its ADAAA

regulations. App. 53a-114a.

EEOC’s amicus brief told the Sixth Circuit Harrison’s torn ACL qualified as

an impairment that affects the major life activity of “musculoskeletal function,”

11

though that “major life activity” appears only in EEOC’s regulation, not the statute.

App. 74a-79a. Citing only its own regulations, EEOC advised the court that

Harrison’s testimony about her condition was “sufficient to satisfy the post-ADAAA

relaxed standard for ‘substantial limitation,’ given that most people in the general

population are able to kneel, walk over rocks, and walk up inclines without taking

any particular caution.” App. 77a, citing 29 C.F.R. § 1630.2(j). Opposing Parts

Galore’s argument that Harrison failed to provide corroborating evidence of her

knee condition, EEOC stated categorically that the ADAAA does not require

“medical evidence” and that such a “heightened” evidentiary requirement “would

contradict Congress’ express intent.” App. 83a-87a, citing 29 C.F.R. § 1630.2(j)(1)(v).

In that fashion EEOC exceeded even its own regulation, in which it left open the

possibility of such corroboration being required in some cases. 29 C.F.R. §

1630.2(j)(1)(v) ([t]he comparison of an individual’s performance of a major life

activity to the performance of the same major life activity by most people in the

general population usually will not require scientific, medical or statistical analysis”

(emphasis added).

Similarly, EEOC advised the appellate court there was no “heightened

evidentiary burden” to provide “medical evidence” of impairment, because its

regulations simply require that an impairment “affect” the “musculoskeletal”

system. App. 85a, citing 29 C.F.R. § 1630.2(h). Demanding more would

contravene Congress’s command in the ADAAA’s “findings and purposes” section

that the question of whether an impairment rises to the level of disability “should

12

not demand extensive analysis,” EEOC argued. Id., citing 42 U.S.C. § 12101

(Note).

The Sixth Circuit agreed and reversed. App. 1a. On the issue of “actual

disability,” it cited EEOC’s regulation that the terms “major” life activity” and

“substantially limits” are “not meant to be a demanding standard.” App. 10a,

quoting 29 C.F.R. § 1630.2(i)(2) and 29 C.F.R. § 1630.2(j)(1)(i). Relying largely on

the regulation directing that the term “substantially limits” be construed “broadly

in favor of expansive coverage,” the court found Harrison had established the first

element of a prima facie case under the “actually disabled” prong, App. 12a, quoting

29 C.F.R. 1630.2(j)(1)(i). First, relying mainly on the statute’s rule of construction

favoring “broad coverage,” the court found Harrison’s testimony established that

her knee condition is a “physical impairment.” App. 12a-13a, citing 42 U.S.C. §

12012(4)(A). It then found her substantially limited in the major life activity of

“kneeling,” acknowledging that while that activity is listed in neither the statute

nor the EEOC’s expanded regulatory list, it “fits comfortably within” them. App.

13a, citing 42 U.S.C. § 12102(2)(A) and 29 C.F.R. § 1630.2(i)(1)(i).

Consistent with EEOC’s amicus-brief position, the court excused Harrison

from providing anything beyond her deposition testimony to corroborate her knee

condition. “A plaintiff need not even tell her employer about her specific

diagnosis. Rather, it is enough that a plaintiff simply tells her employer that she

has certain limitations in relation to her work ‘because she suffers from a

disability as defined by the ADA.’” App. 10a (cleaned up), quoting Morrissey v.

13

Laurel Health Care Co., 946 F.3d 292, 300 (6th Cir. 2019). The court likewise

excused Harrison from providing medical or other corroborating evidence “that

the majority of the general population can kneel and does not share Harrison’s

physical limitation,” and held that a reasonable juror could so find. App. 13a,

quoting § 1630.2(j)(1)(v).

Turning to the “regarded as” prong, the court held that a reasonable jury

could find that Parts Galore regarded Harrison as disabled based on her request

for the mirror, and Murrell’s alleged reference to her knee during her termination.

It found her knee condition would constitute a “physical impairment” based on

EEOC’s regulatory addition of “musculoskeletal” function. App. 15a-16a, citing 29

C.F.R. § 1630.2(i)(1)(ii). It reversed summary judgment and remanded for trial.

REASONS FOR GRANTING THE WRIT

I.

The Sixth Circuit’s agreement with EEOC’s amicus guidance, two steps

beyond the statutory text, shows why Auer deference is inappropriate and

should be scrapped.

1.

Judicial deference under Auer “allows an agency to do exactly what

this Court has always said a legislature cannot do: compel the courts to construe

and apply a law on the books, not according to the judicial judgment, but according

to the judgment of another branch.” Kisor, 139 S. Ct. at 2439 (Gorsuch, J.,

concurring in judgment) (cleaned up), citing T. Cooley, Constitutional Limitations

95 (1868). When this Court defers to an agency interpretation that differs from

what it believes to be the best interpretation of the law, it compromises its judicial

independence, denies litigants “the impartial judgment that the Constitution

14

guarantees them,” and “mislead[s] those whom [it serves] by placing a judicial

imprimatur on what is, in fact, no more than an exercise of raw political executive

power.” Id. (cleaned up), citing Cary v. Curtis, 3 How. 236, 253, 257, 11 L. Ed. 576

(1845) (Story, J., dissenting).

That describes this situation precisely. After Congress amended the ADA to

expand certain key definitions and add a laundry list of “rules of construction”

purporting to tell courts how to interpret the Act, EEOC took the ball and ran. It

issued regulations that in key places exceeded the statutory text, such as its addition of

“musculoskeletal” function to the statutory lists of “major life activities” and its

gratuitous opinion that the question of whether an impairment “substantially limits” a

major life activity “usually will not require scientific, medical, or statistical analysis.”

In its amicus brief filed after joining this litigation in tag-team fashion, EEOC went

further still, interpreting and exceeding its own regulations to advise the Sixth Circuit

that documentary medical evidence is not required of any plaintiff. And the Sixth

Circuit effectively agreed. A system in which an administrative agency issues

regulations exceeding Congressional language, then puts forth supplemental legal

guidance expanding those regulations, is “no more than an exercise of raw political

executive power,” designed to load the dice in favor of Harrison and every other ADA

plaintiff.

The courts should not be a party to that. The deference shown to an agency’s

interpretation of its own regulation under Auer – even that which survives after

Kisor – is antithetical to our system of separated powers. The ruling below

demonstrates perfectly the perils of agency deference under Kisor, Auer and

15

Seminole Rock. This Court should grant certiorari, overrule those cases and retire

once and for all the notion of deference to an agency’s interpretation of its own

handiwork. 1

2.

Because EEOC’s amicus guidance meets all the “important markers”

Kisor laid down for application of Auer deference, 139 S. Ct. at 2416-18, this case

squarely presents the issue of whether Kisor has sufficiently reformed and limited

Auer deference so as to warrant its continued existence. First, EEOC’s amicus

guidance that “medical evidence” is required of no plaintiff was an “authoritative”

and “official” position issued from the agency’s top level, not merely an ad hoc

statement of its views. Id., 139 S. Ct. at 2416-17, citing United States v. Mead

Corp., 533 U.S. 218, 257-259 & n.6 (Scalia, J., dissenting). EEOC’s brief was filed by

the Deputy General Counsel, its top legal officer at the time, and three

subordinates, as part of the agency’s practice of appearing and litigating as amicus

The circuit court’s deference to EEOC’s amicus guidance led to what appears to be

its first decision recognizing an ADAAA plaintiff as “actually disabled” via an

impairment that substantially limits a major life activity, without any independent

corroborating evidence establishing either the substantial limitation or even the

impairment’s existence. In the four post-2008 cases relied upon by the Sixth

Circuit’s “actually disabled” analysis, there was documentary evidence or thirdparty testimony both supporting plaintiff’s substantial limitation, and corroborating

the actual impairment. See App. 9a-13a, citing Hostettler v. Coll. of Wooster, 895

F.3d 844, 849-850 (6th Cir. 2018); Morrissey, 946 F.3d at 300-301 & fns. 6 & 7; Cady

v. Remington Arms Co., 665 F. App’x 413, 415, 417-418 (6th Cir. 2016); and Barlia

v. MWI Veterinary Supply, Inc., 721 Fed. App’x 439, 445-446 (6th Cir. 2018);

compare Farina v. Branford Bd. of Educ., 458 Fed. App’x 13, 16 (2d Cir. 2011)

(“Farina failed to offer medical evidence substantiating that limitation, much less

any evidence concerning whether her alleged problems were ‘any worse than is

suffered by a large portion of the nation’s adult population.’ Without such evidence,

she cannot establish disability within the meaning of the ADA”).

1

16

in federal ADAAA appeals. App. 53a. 2 Indeed, Auer itself involved a new regulatory

interpretation presented for the first time in an amicus brief to this Court. Under

those circumstances, this Court held, there was “simply no reason to suspect that

the interpretation [did] not reflect the agency’s fair and considered judgment on the

matter in question.” Auer, 519 U.S. at 462. So too, here.

Second, the ADAAA falls squarely within the agency’s area of substantive

expertise. Kisor, 139 S. Ct. at 2417. Indeed, Congress specifically directed EEOC to

revise its regulations in accordance with the ADAAA. ADAAA § 2(b)(6), App. 96a.

This Court, too, recognizes that agency expertise. Kisor, 139 S. Ct at 2417 (“But

more prosaic-seeming questions also commonly implicate policy expertise; consider

the TSA assessing the security risks of pate or a disabilities office weighing the

costs and benefits of an accommodation”) (emphasis added). Moreover, the

regulations do not simply “parrot the statutory text,” one of the reasons Kisor

recognizes for not invoking Auer deference. 139 S. Ct. at 2417 & n.5. As discussed

above, they expand Congress’s text, in several respects.

Lastly, EEOC’s amicus brief pronouncement reflects the “fair and considered

judgment” Kisor requires before Auer deference may be given. 139 S. Ct. at 2417-18.

It relies heavily on the agency’s post-2008 regulations with regard to both the

definition of “actually disabled” and the quantum of evidence needed to establish

In recent years EEOC has appeared as amicus curiae in several federal ADAAA

appeals in addition to this one. See Exby-Stolley v. Bd. of Cty. Commissioners, 979

F.3d 784 (10th Cir. 2020) (en banc); Tesone v. Empire Mktg. Strategies, 942 F.3d

979 (10th Cir. 2019); Nunies v. HIE Holdings, Inc., 908 F.3d 428 (9th Cir. 2018);

Baker v. Roman Catholic Archdiocese of San Diego, 725 F. App’x 531 (9th Cir.

2018); Barlia, supra fn. 1,721 F. App’x 439.

2

17

that, before sailing off further into uncharted waters. App. 15a-20a, 24a-27a. It is

neither a “convenient litigation position” nor a “post hoc rationalization advanced to

defend past agency action from attack.” Kisor, 139 S. Ct. at 2417 (cleaned up). In

sum, though Kisor greatly cabined Auer deference, EEOC’s amicus-brief

interpretation of its own ADAAA regulations still falls within it. This case thus

presents an excellent vehicle for determining whether such agency pronouncements

should continue to receive judicial deference.

3.

The workaday nature of the issues addressed by EEOC’s amicus

guidance further counsels the withholding of judicial deference. Deference to an

agency’s interpretation of its regulation is perhaps warranted where it concerns “a

complex and highly technical regulatory program,’ in which the identification and

classification of relevant criteria necessarily require significant expertise and entail

the exercise of judgment grounded on policy concerns.” Thomas Jefferson Univ. v.

Shalala, 512 U.S. 504, 512 (1994), quoting Pauley v. BethEnergy Mines, Inc. 501

U.S. 680, 697 (1991) (cleaned up). Not the case here, where EEOC told the court of

appeals that Harrison satisfied the ADAAA’s “relaxed standard for ‘substantial

limitation,’ given that most people in the general population are able to kneel, walk

over rocks, and walk up inclines without taking any particular caution.” App. 77a,

citing 29 C.F.R. § 1630.2(j).

Far from being a “complex and highly technical” area, EEOC’s amicus brief

simply took its own regulation – which observed that, given the various thumbs it put

on the scale, proof of substantial limitation “usually will not require scientific,

medical or statistical analysis,” 29 C.F.R. § 1630.2(j)(1)(v) – and went the final step.

18

“A heightened requirement of ‘medical evidence’ to show an impairment would

contradict Congress’ express intent,” it told the Sixth Circuit. App. 85a. Hardly the

stuff of the split atom, or whether a new active moiety has been created by joining a

previously approved moiety to lysine through a non-ester covalent bond. Kisor, 139 S.

Ct. at 2410, citing Actavis Elizabeth LLC v. FDA, 625 F. 3d 760, 762-763 (D.C. Cir.

2010).

Simply put, there is no reason for a court to defer where an agency merely

takes its (overreaching) regulatory instruction as to what type of evidence will and

will not be required and removes all remaining limits, or adds to its list of major

bodily functions ones like “musculoskeletal” that are so broad, almost no ADA

plaintiff ever will fail to show herself “substantially limited.”

4.

This case also highlights the manner in which whatever deference

survives Kisor continues to violate § 706 and § 553 of the Administrative

Procedures Act, 5 U.S.C. §§ 706, 553. APA Section 706 instructs reviewing courts to

“decide all relevant questions of law,” and a court that defers to and accepts an

agency’s view of a regulation that is not the best one, essentially abdicates that duty

and allows the agency to assume a judicial role. Kisor, 139 S. Ct. at 2432 (opinion of

Gorsuch, J.). In this case, the Sixth Circuit did that twice. First, though it tipped its

cap to 29 C.F.R. 1630.2(j)(1)(v)’s observation that the comparison of one’s

performance of a major life activity to that of the same major life activity by most

people in the general population “usually will not require scientific, medical, or

statistical analysis,” it effectively adopted EEOC’s amicus-brief guidance that

requiring “medical evidence” of any plaintiff “would contradict Congress’ express

19

intent.” App. 13a, 85a. Harrison now may go to trial and establish herself as a

“qualified individual with a disability” based solely on her uncorroborated say-so

that she can’t kneel and has a hard time walking over rocks and up inclines – as can

no doubt be said by millions of Americans. EEOC’s amicus-brief guidance allowed

the circuit court to fashion such gossamer into an actionable claim.

Second, while the court of appeals also acknowledged the regulation’s list of

“major life activities” – and that it adds others beyond those set forth in the ADAAA

– it accepted EEOC’s amicus-brief invitation to add any more it wanted, finding

that “[k]neeling fits comfortably within [the] list.” App. 13a, citing 29 C.F.R. §

1630.2(i)(1)(i) and 42 U.S.C. § 12102(2)(A). In that sense, this case also exemplifies

the second transgression of which Justice Gorsuch warned – the court allowed

EEOC effectively to issue new regulations without going through the notice and

comment provisions of APA § 553. Kisor, 139 S. Ct. at 2434 (opinion of Gorsuch, J.).

EEOC literally “announced an interpretation of an existing substantive regulation

without advance warning, and in pretty much whatever form it” wished, Ibid. The

first inkling Parts Galore had of EEOC’s view that requiring “medical evidence” of a

claimed impairment in all cases would violate the ADA, was when the agency’s

surprise amicus brief arrived via ECF email on its counsel’s computer.

5.

Auer/Kisor deference here also impinged on the separation of powers.

EEOC via its amicus brief told the Sixth Circuit it must interpret the ADAAA to

mean not what the panel’s three judges think it means, but what the executive

agency thinks it means. Kisor, 139 S. Ct. at 22438-40 (opinion of Gorsuch, J.).

Exactly as Justice Gorsuch warned, this meant Parts Galore was deprived of the

20

“wholly impartial” decisionmaker Article III requires, and instead saddled with the

views of an activist agency that chose to “‘press the case for the side [it] represent[s]’

instead of adopting the fairest and best reading.” Id. at 2438-40 & n.86, citing Cox,

Judge Learned Hand and the Interpretation of Statutes, 60 Harv. L. Rev. 370, 390391 (1947) and Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev.

2118, 2151 (2016). Absent deference, the Sixth Circuit might have accepted EEOC’s

view or rejected it, but in either event would have reached its own conclusion

independently – and not deprived Parts Galore of its “right to an independent

judicial determination of the law’s meaning.” Id. at 2440-41.

6.

Nor is stare decisis a concern. For one thing, it is no longer fully

accurate to refer to Auer or Seminole Rock deference – Kisor “has left Auer

deference standing, but wobbly.” Melone, Kisor v. Wilkie: Auer Deference is Alive

but Not So Well, Is Chevron Next?, 12 N.E. U. L. Rev. 581, 627 (2020). And no

significant reliance interests have formed based on the 2019 Kisor ruling: the toner

on it has barely cooled, and lower courts appear somewhat confused as to how to

apply judicial deference in its wake. Note, Auer 2.0: The Disuniform Application of

Auer Deference After Kisor v. Wilkie, 88 Fordham L. Rev. 2011, 2043 (2020) (early

decisions post-Kisor cast doubt on whether it has clarified Auer, and issue of

whether to apply deference “will continue to plague courts and litigants alike”).

Finally, there is the question of whether caselaw that sets forth a doctrine for

analyzing text properly may even be the focus of stare decisis. Kisor, 139 S. Ct. at

2443-44 (opinion of Gorsuch, J.). (Auer’s narrow holding about the meaning of the

particular regulation at issue in that case may be entitled to stare decisis effect, but

21

it “seems doubtful” to “prescribe an interpretive methodology governing every

future dispute over the meaning of every regulation”). It is especially dubious to

give Auer that force where it undermines judicial independence, Id. at 2444 – as the

Sixth Circuit opinion exemplifies.

7.

Lastly, this case’s procedural path highlights an institutional

drawback of Auer. When Harrison filed her administrative charge of discrimination,

an unimpressed EEOC issued her a right-to-sue letter. App. 29a. But once she filed

suit and it was dismissed and she appealed, the prospect of an appellate opinion

construing the ADAAA brought EEOC enthusiastically into the fray, plainly hoping

to advance the ball for ADA plaintiffs even further than it had done with its

regulations. EEOC even briefed an issue from the district court’s ruling, relating to

Parts Galore’s status as Harrison’s “employer,” that Harrison’s own brief did not

raise. App. 88a.

“The administrative state ‘wields vast power and touches almost every aspect

of daily life.’” City of Arlington v. F.C.C., 569 U.S. 290, 313 (2013) (Roberts, C.J.,

dissenting), quoting Free Enterprise Fund v. Public Company Accounting Oversight

Bd., 561 U.S. 477, 499 (2010). “The Framers could hardly have envisioned today’s

‘vast and varied federal bureaucracy’ and the authority administrative agencies now

hold over our economic, social, and political activities.” Ibid. This case underscores

that. If a statute covering millions of employer-employee relationships nationwide is

to be broadened such that virtually anything constitutes a “substantially limiting”

“impairment,” of which no corroborating scientific, medical, or statistical evidence

22

need be presented, there is a process for doing that. It is that set forth in the

Bicameral and Presentment Clauses, Art. I, § 7, cls. 2-3, which “prescribe and

define the respective functions of the Congress and of the Executive in the

legislative process.” INS v. Chaudha, 462 U.S. 919, 945-946 (1983). And it requires

something more than EEOC legal staff conferencing around a table or on Zoom to

determine the cases in which they will appear as amicus, and further expand the

agency’s ADAAA regulations.

8.

“[E]veryone recognizes, to one degree or another, that Auer cannot

stand.” Kisor, 139 S. Ct. at 2443 (opinion of Gorsuch, J.). “Auer will someday be

overruled and [] Justice Scalia’s dissent in Decker [v. Northwest Envtl. Def. Ctr.,

568 U.S. 597 (2013)] will be the law of the land.” Kavanaugh, Keynote Address:

Justice Scalia and Deference 19:06 (June 2, 2016), available at

http://vimeo.com/169758593.

That day has arrived. “Enough is enough.” Decker, 568 U.S. at 616 (Scalia, J.,

concurring in part and dissenting in part). The Court should grant certiorari and

overrule Kisor, Auer, and Seminole Rock.

II.

Chevron deference also should be ended.

1.

“Under Chevron, courts uphold an agency’s reading of a statute – even

if not the best reading – so long as the statute is ambiguous and the agency’s

reading is at least reasonable.” Fixing Statutory Interpretation, supra, 129 Harv. L.

Rev. at 2150 citing Chevron, 467 U.S. at 842-844. “Chevron encourages the

Executive Branch (whichever party controls it) to be extremely aggressive in

23

seeking to squeeze its policy goals into ill-fitting statutory authorizations and

restraints.” Id. This case presents a paradigm of that executive overreach, and

separate from the Sixth Circuit’s deference to EEOC’s amicus-brief

pronouncements, its crediting of the agency’s ADAAA regulations give this Court an

opportunity to review and eliminate Chevron deference.

2.

Not content with how courts were interpreting the ADA’s threshold

inquiry of “substantially limited in a major life activity,” Congress in 2008 amended

the Act to broaden some of its substantive provisions and set forth a litany of

admonishments to courts that they should construe the Act broadly. Congress also

voiced its expectation that EEOC would craft regulations, a task the agency took up

with gusto. It not only set forth its view of key statutory definitions, but went

further – for instance, adding the broad term “musculoskeletal” to the list of “major

bodily functions.” 29 C.F.R. § 1630.2(i)(1)(ii). EEOC then impinged on the judiciary’s

role by promulgating several more “rules of construction,” some of which dictate to

courts the standards they should apply and the evidence they should allow in

resolving various legal questions. See, e.g., 29 C.F.R. § 1630.2(i)(2) (“[i]n

determining other examples of major life activities, the term ‘major’ shall not be

interpreted strictly to create a demanding standard for disability”); 29 C.F.R. §

1630.2(j)(1)(i) (“The term ‘substantially limits’ shall be construed broadly in favor of

expansive coverage, to the maximum extent permitted by the terms of the ADA.

‘Substantially limits’ is not meant to be a demanding standard”); 29 C.F.R. §

1630.2(j)(1)(iii) (“primary object” in ADA cases should be whether covered entities

24

have complied with their obligations and whether discrimination has occurred not

whether an individual’s impairment substantially limits a major life activity, an

issue that “should not demand extensive analysis”); 29 C.F.R. § 1630.2(j)(1)(iv)

(term “substantially limits” shall be interpreted and applied “to require a degree of

functional limitation that is lower than the standard” applied pre-ADAAA); 29

C.F.R. § 1630.2(j)(1)(v) (comparison of individual’s performance of a major life

activity to performance of same activity by most people in the general population

“usually will not scientific, medical, or statistical analysis”).

By dictating to the judiciary how certain key coverage issues under the

ADAAA are to be resolved, EEOC’s regulatory “rules of construction”

essentially load the litigation dice in favor of employees. This Court “has long

held that Congress cannot ‘indirectly control the action of the courts, by

requiring of them a construction of the law according to its own views.” Kisor,

139 S. Ct. at 2439 (opinion of Gorsuch, J.), citing Plaut v. Spendthrift Farm,

Inc., 514 U.S. 211, 225 (1995) and T. Cooley, Constitutional Limitations 95

(1868). Congress of course was free to express its disapproval of this Court’s

construction of the ADA by amending the Act, which it did in 2008. 42 U.S.C. §

12101 (Note): Findings and Purposes. But it exceeded its powers in spelling out

“rules of construction” dictating to courts how they are to construe and decide

cases involving the definition of “disability” and “substantially limits,” 42

U.S.C. § 12102(4)(A) & (B). Such mandates to rule according to legislative

judgment long have been viewed as an affront to the judicial power. Kisor, 139

25

S. Ct. at 2439 n.89 (opinion of Gorsuch, J.), citing Ogden v. Blackledge, 2

Cranch 272, 277, 2 L. Ed. 276 (1804). Given that, it most certainly impinges on

the judicial power for an executive agency to issue regulations further dictating

how courts are to construe a statute and adjudicate issues arising thereunder,

as EEOC has done.

3.

In Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018), this Court noted

that “[n]o party to these cases has asked us to reconsider Chevron deference.” Id. at

1629. “[W]hether Chevron should remain is a question we may leave for another

day.” SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2018). Parts Galore is now

asking. This Court should grant certiorari and overrule Chevron.

4.

Lastly, the ruling below may be vacated on the narrower ground that it

simply misreads the 2008 ADA amendments. While Congress in that enactment

criticized this Court’s understanding of “substantially limits a major life activity,” it

said nothing about judicial interpretation of the statutory term “impairment.”

Richardson v. Chicago Transit Auth., 926 F.3d 881, 889 (7th Cir. 2019). While the

Sixth Circuit focused on whether Harrison’s claimed knee condition “substantially

limits” her, App. 10a-13a, it completely elided the fact that Harrison has presented

insufficient evidence that she even has an impairment at all, accepting her

uncorroborated say-so about continuing limitations with her knee. Id.

The court then misread EEOC’s revised regulation on “substantially limits” –

stating that comparison of an individual’s performance of a major life activity to

that of the same activity by most people in the general population “usually will not

26

require scientific, medical or statistical analysis,” Id. at 13 (emphasis added) – as

excusing her from providing any medical documentation of its mere existence. That

fundamentally changes the original ADA’s definition of “impairment,” when

Congress did no such thing. Richardson, 926 F.3d at 889 (“…the ADAAA’s

legislative history explicitly states that Congress “expected that the currently

regulatory definition of physical or mental impairment, as promulgated by agencies

such as the EEOC…would not change”)(cleaned up), citing Statement of the

Managers to Accompany S. 3406, The Americans with Disabilities Act Amendments

Act of 2008, 154 Cong. Rec. S8342-01, S8345 (Sept. 11, 2008).

Congress did not modify the statutory definition of “impairment,” and “even

after the ADAAA, the definition of physical impairment remains inextricably tied to

a ‘physiological disorder or condition.’” Richardson, 926 F.3d at 889, citing 29 C.F.R.

§ 1630.2(h)(1) and Morris v. BNSF Ry. Co., 817 F.3d 1104, 1111 (8th Cir. 2016). By

reading the statute, along with EEOC’s regulations and amicus guidance, to excuse

Harrison from having to provide corroboration that her claimed knee condition even

exists, the Sixth Circuit misapplied the law. At a minimum, this Court should

vacate its ruling and remand with instructions to affirm the district court.

27

CONCLUSION/RELIEF REQUESTED

For the foregoing reasons, the petition for a writ of certiorari should be

granted.

Respectfully submitted,

MICHAEL F. SMITH*

Counsel of Record

THE SMITH APPELLATE LAW FIRM

1717 Pennsylvania Avenue N.W.

Suite 1025

Washington, D.C. 20006

(202) 454-2860

smith@smithpllc.com

March 2021

JOHN J. O’SHEA

LAW OFFICE OF JOHN J. O’SHEA P.L.C.

18000 Mack Avenue

Grosse Pointe, MI 48230

(313) 884-2000

oshealaw@att.net

Counsel for Petitioners