Amicus Curiae Brief — Karyn D. Stanley, Petitioner v. City of Sanford, Florida

No. 23-997

In the

Supreme Court of the United States

KARYN D. STANLEY,

Petitioner,

v.

CITY OF SANFORD, FLORIDA,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Eleventh Circuit

BRIEF FOR AMICUS CURIAE THE

INTERNATIONAL ASSOCIATION OF

FIRE FIGHTERS (“IAFF”) IN SUPPORT

OF PETITIONER

John R. Mooney

Counsel of Record

A rthur R. Traynor

Mooney, Green, Saindon, Murphy

& Welch, PC

1920 L Street, NW, Suite 400

Washington, DC 20036

(202) 783-0010

jmooney@mooneygreen.com

Counsel for Amicus Curiae

328760

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITIED AUTHORITIES . . . . . . . . . . . . . . ii

INTERESTS OF AMICUS CURIAE . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

Emergency and Fire Response Are An

Increasingly National Project Whose

D i s able d Worke r s S hou ld H ave A

Uniformly Enforceable Right to Be Free

From Disability Discrimination . . . . . . . . . . . . . . 9

II. Increased Risk of Job-Related Disability

Makes Fire Fighters Especially Reliant

on Access to the Courts to Remedy

Unlawful Disability Discrimination in

Post-Employment Benefit Design and

Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

III. Lt. Stanley Was a Qualified Individual at the

Time the Discriminatory Benefit Modification

was Adopted and Remains Affected By It,

Entitling Her to Bring Suit Under Title I of

the ADA as Modified by the Fair Pay Act . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Castellano v. City of New York,

142 F.3d 58 (2d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . 6

Ford v. Schering-Plough Corp.,

145 F.3d 601 (3d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . 6

Gonzales v. Garner Food Servs., Inc.,

89 F.3d 1523 (11th Cir. 1996) . . . . . . . . . . . . 6, 9, 18, 19

Nelson v. City of Pocatello,

508 P.3d 1234 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Stanley v. City of Sanford,

83 F.4th 1333 (11th Cir. 2023) . . . . . . . . . . . . . . . . . 5-6

Statutes and Other Authorities

5 U.S.C. § 8101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

42 U.S.C. § 12101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

42 U.S.C. § 12112(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

42 U.S.C. § 2000e-5(e)(3)(A) . . . . . . . . . . . . . . . . . . . 19, 20

iii

Cited Authorities

Page

42 U.S.C. § 12111(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ADA Amendments Act of 2008, Pub. L. 110-325,

122 Stat. 3553 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Demers, Paul A., et al., Carcinogenicity of

occupational exposure as a Firefighter,

23.8 The Lancet Oncology (2022), https://

www.thelancet.com/journals/lanonc/article/

PIIS1470-2045(22)00390-4/abstract . . . . . . . . . . . . . 16

Elpidoforos S. Soteriades et al., Cardiovascular

Disease in US Firefighters A Systematic

Review, 19 Cardiol. in Rev. 202 (2011), available

at https://pubmed.ncbi.nlm.nih.gov/21646874/ . . . . . 17

Federalist 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

FEM A, Fire Prevention and Safety Grant

Program Fact Sheet (February 2024) . . . . . . . . . . . 12

Firef ighter Cancer Reg istr y Act of 2018,

Pub L. No. 115–19 (2018) . . . . . . . . . . . . . . . . . . . . . . 16

Grace K. LeMasters et al., Cancer Risk Among

Firefighters: A Review and Meta-Analysis of 32

Studies, 48 J. Occup. & Envtl. Med. 1189 (2006),

https://pubmed.ncbi.nlm.nih.gov/17099456/ . . . . . . . 16

Indiana Code, I.C. § 5-10-15-5.5 . . . . . . . . . . . . . . . . . . . . 3

iv

Cited Authorities

Page

N.Y. Retirement and Social Security Law § 363-ff

(2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

National Defense Authorization Act of 2023,

Pub. L. No. 117-263 (December 23, 2022) . . . . . . . . . 3

National Incident Management System, Guideline for

Mutual Aid at 3-8 (March 2024) available at https://

www.fema.gov/sites/default/files/documents/

fema_nims-guideline-for-mutual-aid.pdf . . . . . . 10, 11

Pub. L. 111-2, 123 Stat. 5 . . . . . . . . . . . . . . . . . . . . . . . . . 20

Reese, Shawn, Congressional Research Service,

First Responder Grant Formulas: The

9/11 Commission Recommendation and

Other Options for Congressional Action

( Up d at e d O c t ob e r 7, 2 0 0 4) av a i l a ble

a t ht t p s : // w w w. e ve r yc r s r e p o r t . c o m /

files/20041007_RL32475_772803b8d63f3b3

b06b6306fc3129380ed79495f.pdf . . . . . . . . . . . . . . . 9-10

Richard Campbell, Firefighter Injuries on

th e Firegr o un d, NAT ’L FIRE PRO T.

ASS’N (December 2023), https://www.nfpa.

org/education-and-research/research/nfparesearch/fire-statistical-reports/patternsof-firefighter-fireground-injuries . . . . . . . . . . . . . . . 14

v

Cited Authorities

Page

Robert D. Treitman et al., Air Contaminants

Encountered by Firefighters, 41 Am. Indus.

Hygiene Ass’n J. 796 (1980), available at https://

pubmed.ncbi.nlm.nih.gov/7457369/ . . . . . . . . . . . . . . 15

Roshni Kotwani, Andrea N. Clapp, Haley E. Huggins

et al., Assessment of Parkinson’s Disease

symptoms and toxin exposures in firefighters:

a cross-sectional survey, (Feb. 2021), available

at https://doi.org/10.21203/rs.3.rs-223780/v1 . . . . . . 17

Seth A. Seabury & Christopher F. McLaren,

The Frequency, Severity, and Economic

Consequences of Musculoskeletal Injuries

to Firefighters in California, NAT’L LIBR.

MED. (Sept. 1, 2012), https://w w w.ncbi.

n l m.n i h.gov/pmc /a r t icles / PMC 49 4 52 36 /

(last visited Apr. 5, 2024) . . . . . . . . . . . . . . . . . . . . . . 14

Stefanos N. Kales et al., Firefighters and

On-Duty Deaths from Coronar y Hear t

Disease: A Case Control Study, 2 Envtl.

Health 14 (2003), available at https://pubmed.

ncbi.nlm.nih.gov/14613487/ . . . . . . . . . . . . . . . . . . . 16-17

S t ephen K e rb e r, An a lys i s of C h a n g in g

R e s i d e n t i a l Fi r e D y n a m i c s a n d It s

Implications on Firefighter Operational

Timeframes, 48 Fire Technol. 865 (2011),

available at https://link.springer.com/content/

pdf/10.1007/s10694-011-0249-2.pdf . . . . . . . . . . . . . . 15

vi

Cited Authorities

Page

Strengthening the Safety Net for Injured Workers:

Hearing Before the Subcomm. on Workforce

Protections of the H. Comm . on Educ.

& Lab., 117th Cong. (Dec. 2, 2021) . . . . . . . . . . . . 11-12

Thomas Fabian et al., Firefighter Exposure

t o Sm oke Par ticul at es (2 010), https: //

fsr i.org /resea rch /f i ref ight er- ex posu re smoke-particulates#tabs-findings . . . . . . . . . . . . . . 15

U.S. House, Education and Labor Cmte., Federal

Firefighters Fairness Act of 2022 . . . . . . . . . . 5, 11, 13

1

INTERESTS OF AMICUS CURIAE1

The International Association of Fire Fighters

(“IAFF”) is a 501(c)(5) labor organization headquartered

in Washington, DC, representing more than 340,000

professional fire fighters, paramedics, and other emergency

responders in the United States and Canada. IAFF

members in more than 3,500 IAFF local affiliates protect

citizens’ lives and property in nearly 6,000 communities in

every state in the United States and province in Canada.

This amicus brief is submitted in support of the Petition for

Certiorari filed by Petitioner, Lt. Karyn D. Stanley (Ret.),

who throughout her distinguished fire fighting career

has been a member of one IAFF affiliate, the Sanford

Professional Firefighters, IAFF Local 3996.

The IAFF’s local affiliates represent fire fighters

throughout the country with respect to collective

bargaining over the terms and conditions of employment,

often including benefits for fire fighters forced into

retirement by disabling occupational injury or illness.

As an advocate for professional fire fighters, paramedics,

and emergency responders in every one of the United

States, the IAFF has an interest in ensuring all of its

members, regardless of the federal appellate circuit in

which they reside or are employed, have the same access

to the nation’s federal courts to vindicate their federal

statutory right to be free from disability discrimination.

Because of its extensive experience and knowledge about

the increasingly national character of emergency response

1. No counsel for any party authored this brief in whole or

in part and no entity or person, aside from amicus curiae and its

counsel, made any monetary contribution toward the preparation

or submission of this brief. All parties were notified of amicus

intent to file this brief at least ten days before its due date.

2

and the increased risk of disability shouldered by those

who respond, the IAFF is uniquely situated to provide

the Court with a perspective on the importance of a

uniform interpretation of the Americans with Disabilities

Act (ADA), 42 U.S.C. § 12101 et seq., to remedy serious

harms caused by unlawful discrimination in the provision

of disability benefits.

The IAFF is committed to supporting active and

retired fire fighters who, like Petitioner Stanley, suffer

injury or illness linked to the hazards of fire fighting

that leaves them disabled. In pursuit of that commitment,

the IAFF has pursued benefits and protections for fire

fighters rendered disabled in the line of service at both

the federal and state level.

For example, at the state level, the IAFF and its

affiliates have been instrumental in securing enactment

and appropriately remedial interpretation of presumptions

in aid of fire fighters who are so frequently stricken and

often disabled by job-related illness and disease. 2 Such

presumptions alleviate the almost impossible burden of

pinpointing the precise incident(s) or exposure(s) that

caused a disease in order to prove a specific link between

their illness and particular exposures. Instead, the

2. Recently, the Idaho Supreme Court in an opinion

affirming application of a fire fighter cancer presumption cited

the website of the IAFF’s Presumptive Health Initiative, noting

that as of April 2022, “49 states, including Idaho, have adopted

statutory presumptions of occupational diseases for firefighters.”

Nelson v. City of Pocatello, 508 P.3d 1234, 1250, fn2 (Idaho 2022)

(referencing a chart detailing state level fire fighter presumptive

disability laws now current through December 2022 and available

at https://w w w.iaff.org /w p-content/uploads/ PresumptiveDisability-Chart-12-16-2022.pdf).

3

stricken fire fighter is afforded a rebuttable presumption

of occupational causation upon a showing that they were

engaged in hazardous duties for a specified period of

time and that there is a general causal link between

their illness and hazardous exposures common to fire

fighting. IAFF affiliates have advocated in particular for

legal presumptions in favor of benefit eligibility for the

inordinate number of veteran fire fighters like Lt. Stanley

who are stricken and disabled by Parkinson’s disease. See

Indiana Code, I.C. § 5-10-15-5.5; New York Consolidated

Laws 2021, N.Y. Retirement and Social Security Law §§

363-ff (2021).

As explained more fully below, the federal government’s

funding of scientific research into fire fighter occupational

illness and injury has significantly increased in conjunction

with the increased role the federal government in funding

and coordinating emergency response activities since

September 11, 2001. Federal funding has greatly expanded

the scope of research and knowledge into the frequency

and causes of injury and illness that disable fire fighters.

The IAFF used this research in efforts to support and

secure enactment of the Federal Firefighters Fairness

Act of 2022 (enacted as part of the National Defense

Authorization Act of 2023, Pub. L. No. 117-263 (December

23, 2022)). The Act creates a rebuttable presumption that

certain diseases contracted by federal fire fighters are job

related for the purpose of compensation claims brought

under the Federal Employees’ Compensation Act (FECA),

5 U.S.C. § 8101 et seq.

In approximately the same twenty-year period, the

federal circuit courts of appeal split on the question

presented here: whether the ADA permits fire fighters

to challenge disability discrimination under Title I once

4

their disability forces them from employment. In response

to appellate court decisions reducing employee and

former employee access to remedies under federal antidiscrimination statutes, the IAFF joined other worker

representatives to urge Congress to expand disabled

employees’ access to benefits. Congress responded, taking

action to expand access to remedies provided by the ADA

in the ADA Amendments Act of 2008, Pub. L. 110-325,

122 Stat. 3553 (2008), and the Lily Ledbetter Fair Pay

Act of 2009.

The IAFF and its members have a substantial interest

in the Court resolving the circuit split in accord with

Congress repeatedly expressed intent that the federally

funded corps of fire fighters in agencies all over the

country who increasingly fight the same fires and expose

themselves to the same risks will have uniform access to

their nation’s courts to remedy unlawful discrimination

only revealed after they are disabled by injury or illness.

SUMMARY OF ARGUMENT

Since September 11, 2001, fire and emergency

management has evolved to become national in character,

coordinated through increased involvement of the federal

government in what was traditionally a state role.

Simultaneously, increased funding and attention to the

science of emergency response improved awareness that

fire fighters labor under a heightened risk of disabling

illness and injury. This in turn caused a wave of substantial

changes to the legal landscape governing fire fighter

disability benefits at both the state and federal level, some

intended to rectify disparities in access to benefits by fire

fighters from different jurisdictions injured or sickened

working side by side at the same job.

5

Notwithstanding these developments, the federal

courts continue to perpetuate unnecessary disparities in

fire fighter access to benefits following disability by illness

or injury. Too many federal courts – including the Eleventh

Circuit in its decision below - have remained closed for

decades to claims of unlawful disability discrimination

that does not manifest until after disability forces a

premature end to the employment relationship. Overly

narrow applications of the ADA persist, despite Congress

passing legislation amending the statute in response

to judicial decisions it criticized for “unduly restricting

the time period in which victims of discrimination can

challenge and recover for discriminatory compensation

decisions or other practices, contrary to the intent of

Congress.” Pub. L. 111-2, 123 Stat. 5.

No disabled fire fighter, including Lt. Stanley,

should be denied the opportunity to present a well pled

complaint that the employer for whom she performed the

essential work that likely contributed to her disability has

unlawfully discriminated against her on account of that

disability. Therefore, the IAFF has an interest in Title

I of the ADA, as amended, being applied consistent with

Congress direction to broaden the statute’s coverage. This

direction is reflected in the Fair Pay Act and consistent

with Congressional efforts to ensure uniform disability

benefit coverage between federal and state fire fighters

in the Federal Firefighters Fairness Act.

ARGUMENT

The Eleventh Circuit in the decision on review

recognized that Title I of the ADA “protects against

discrimination in fringe benefits, such as health insurance.”

Stanley v. City of Sanford, 83 F.4th 1333, 1337 (11th Cir.

6

2023). But it considered itself bound by its earlier decision

in Gonzales v. Garner Food Servs., Inc., 89 F.3d 1523 (11th

Cir. 1996), to hold that “a former employee who does not

hold or desire to hold an employment position cannot sue

over discriminatory post-employment benefits” because

they are not ‘qualified individuals’ as that term is defined

in the ADA. Stanley, 83 F.4th at 1337.

The Eleventh Circuit “acknowledge[d] that the

circuits are split” and that its decision “align[ed] with

the Sixth, Seventh, and Ninth Circuits.” Id. at 1341. On

the other side of the split, the Second and Third Circuits

have read Title I’s anti-discrimination provision “in favor

of former employees,” explaining that “[a]n interpretation

[of Title I] that would prevent former employees who are

no longer ‘qualified individuals’ from bringing claims of

discrimination in the provision of post-employment fringe

benefits would [] undermine the plain purpose of sections

12112(a) and (b)(2): to provide comprehensive protection

from discrimination in the provision of fringe benefits.”

Castellano v. City of New York, 142 F.3d 58, 68 (2d Cir.

1998); accord Ford v. Schering-Plough Corp., 145 F.3d 601,

606 (3d Cir. 1998). The Second and Third Circuits applied

the simple logic of this Court’s analogous interpretation of

the statutory scheme for enforcement of Title VII of the

Civil Rights Act in Robinson v. Shell Oil Co., recognizing

that because “sections of [Title VII] plainly contemplate

that former employees will make use of the remedial

mechanisms of Title VII,” the term “employees” “includes

former employees.” 519 U.S. 337, 345 (1997).

In the decades since the cases cited in the previous

paragraph were decided, a series of Congressional actions

taken in response to September 11, 2001 have significantly

changed fire fighting and emergency response in

7

this country. Since the creation of the Department of

Homeland Security (DHS), fire and emergency response

are increasingly funded and coordinated federally, which

was a role traditionally reserved to the states. Congress

has also dramatically increased funding for research

into the causes and prevention of injury and illness to

fire fighters, the published results of which led to an

equally dramatic refashioning of state and federal legal

frameworks designed to ensure benefits are available

to veteran fire fighters disabled by injury or illness

understood to be generally associated with fire fighting.

Two decades of Congressional action subsequent

to rulings by the Sixth, Seventh, Ninth and Eleventh

Circuits holding that disabled fire fighters do not have a

right under Title I of the ADA to sue a former employer

for discrimination in the provision of fringe benefits

demonstrate that those decisions are contrary to Congress

expectation that fire fighters who are increasingly part

of the same federally funded and coordinated emergency

response not have disparate access to lawfully designed

and administered disability benefits. 3 All fire fighters

whose careers are ended by disability and then discover

their employer provides fringe benef its that are

discriminatorily inferior to benefits the employer provides

non-disabled fire fighters are treated disparately. In the

Eleventh Circuit, disabled fire fighters, like Petitioner,

are twice treated disparately. First their employer treats

3. The Eleventh and other Circuits that adopted a narrow

view of former employees’ right to sue for fringe benefit

discrimination were always wrong to do so. The more recent

legal history of Congressional amendments to the ADA and other

efforts to ensure fire fighters have access to disability benefits

underscore that the ADA never was supposed to prevent people

like Ms. Stanley from having access to the courts.

8

them disparately from fellow members of the fire service

who are not disabled and therefore receive better fringe

benefits. And second, courts in the Eleventh Circuit treat

them differently from fellow members of the fire service

who are also disabled, but able to bring Title I ADA claims

to obtain relief from unlawful discrimination from federal

courts in the Second and Third Circuits.

The distressing and economically devastating occasion

of a premature retirement forced by disability is precisely

the time all fire fighters in service to the United States

– regardless of the arbitrary fact of which circuit court’s

border encircles their employer - need a remedy to

fringe benefit discrimination prohibited throughout the

United States by the ADA and its recent amendments.4

The instant petition filed on behalf of Lt. Stanley, who

was struck by an illness generally known to be causally

linked to fire fighting that drove her out of the fire service

and continues to subject her to unlawful discrimination,

presents a compelling opportunity for the Court to resolve

the circuit split. 5

4. Before the Eleventh Circuit, the United States Government

indicated its agreement with the view of the Second and Third

Circuits, advocated by Petitioner and the IAFF in this matter, as

reflected in an amicus brief the Department of Justice filed with

the Eleventh Circuit prior to its decision on review.

5. Legal uniformity has long been recognized as paramount

for the administration of justice, and the Court’s position at

the top of the judicial hierarchy is meant to ensure nationwide

uniformity in federal law. See Federalist 80 (“If there are such

things as political axioms, the propriety of the judicial power

of a government being coextensive with its legislative, may be

ranked among the number. The mere necessity of uniformity

in the interpretation of the national laws, decides the question.

Thirteen independent courts of final jurisdiction over the same

9

I.

Emergency and Fire Response Are An Increasingly

National Project Whose Disabled Workers Should

Have A Uniformly Enforceable Right to Be Free

From Disability Discrimination

In addition to Congressional amendments to the ADA

enacted since the Eleventh Circuit’s decision in Gonzales

v. Garner Food Servs., Inc., 89 F.3d 152, the federal

government’s efforts toward centralized coordination

of fire and emergency response in the years following

September 11, 2001 has been accompanied by efforts to

expand access to disability benefits for fire fighters. In

light of these developments. the circuit split over coverage

of Title I’s anti-discrimination protections should be

resolved in favor of Lt. Stanley and other fire fighters

whose careers are prematurely ended by disability.

The Congressional Research Service reported in 2004

that “[s]ince the September 11, 2001 terrorist attacks,

the importance of first responders and their ability to

prepare for and respond to such incidents has become

evident. To assist first responders (who include fire

fighters, emergency medical service personnel, emergency

managers, and law enforcement personnel), the 108th

Congress appropriated a combined total of $7.8 billion

in FY2003 and FY2004. More specifically, Congress

appropriated $3.8 billion for these programs in FY2003,

and $3.9 billion in FY2004.”6

causes, arising upon the same laws, is a hydra in government,

from which nothing but contradiction and confusion can proceed.”)

6. Reese, Shaw n, Cong ressional Research Ser vice,

First Responder Grant Formulas: The 9/11 Commission

Recommendation and Other Options for Congressional

Action, (Updated October 7, 2004) available at (https://www.

10

With this massive and continued funding of first

responder agencies throughout the country, the federal

government commenced an active role in the management

of large-scale emergency response. This was accomplished

in part by funding and encouraging state and local fire

and emergency response agencies to enter into mutual

aid agreements for the coordination of responses to

significant emergencies that are increasingly national

in scale. “Mutual aid agreements establish the terms

under which assistance is sent between two or more

entities including different states, municipalities, Tribal

Nations, jurisdictions within a state, and even with

and between private sector entities, NGOs and other

whole community partners. These agreements facilitate

access to potentially needed resources, both prior to

and following incidents or planned events.” See National

Incident Management System, Guideline for Mutual Aid

at 3-8 (March 2024).7 Pursuant to these agreements, fire

everycrsreport.com/files/20041007_RL32475_772803b8d63f3b3b

06b6306fc3129380ed79495f.pdf) (last visited Apr. 4, 2024).

7. These guidelines (available at https://www.fema.gov/

sites/default/files/documents/fema_nims-guideline-for-mutualaid.pdf) (last visited April 4, 2024) describe several large

mutual aid agreements, including, for example: the Emergency

Management Assistance Compact is a congressionally ratified

agreement that provides form and structure to interstate mutual

aid during governor-declared states of emergency or disaster.

The Mid-America Mutual Aid Consortium supports interstate

mutual aid for emergency situations that do not result in a state

or local declaration of emergency or disaster. State and Province

Emergency Management Assistance Memorandum of Agreement

is an agreement ratified by the United States and Canada that

allows for participating jurisdictions from each country to enact

or adopt it. This agreement is open to all 50 states and U.S.

11

fighters now regularly cross jurisdictional lines to respond

to emergencies in localities and states sometimes far from

home. Fire fighters are routinely dispatched to respond

to such emergencies.

The primary sponsor of the Federal Firefighters

Fairness Act in the House of Representatives, Rep. Salud

Carbajal, described at a December 2, 2021 hearing on the

proposed legislation his then recent experience with a

nationally coordinated emergency fire response:

Last month, over a thousand firefighters put

their lives on the line to battle the Alisal Fire in

my district on the Central Coast of California.

I am so thankful for the federal, state, and

local firefighters who worked together to put

out the blaze and keep our community safe. All

of them performed the same job, but [federal

firefighters] experience a disparity in health

benefits. It is not fair that federal firefighters

are being denied access to benefits that their

local counterparts receive, especially when they

fight the same fires and expose themselves to

the same risks.

U.S. House, Education and Labor Cmte., Federal

Firefighters Fairness Act of 2022. (H. Rpt. 117-306)

(quoting from the statement of Rep. Salud Carbajal made

at the Strengthening the Safety Net for Injured Workers:

Hearing Before the Subcomm. on Workforce Protections

of the H. Comm. on Educ. & Lab., 117th Cong. (Dec. 2,

territories, and to all 10 provinces and three territories in Canada.

Id. at 3-8.

12

2021) (emphasis supplied). Notably, the Act was passed in

part to address disparities in access to benefits between

fire fighters stricken by illness or injury who are employed

by the federal government and fire fighters dispatched to

the same fire or emergency by state and local agencies. As

Congress has expanded the federal role in fire response,

it has demonstrated a consistent intent to protect fire

fighters not only from injury and illness, but also from

disparate access to disability benefits.

In addition to dramatically increased federal funding

for fire and emergency preparedness and coordination,

Congressional funding since 2001 has led to significant

advances in the science of disabling illness and injury

among fire fighters. The Department of Homeland

Security (DHS), established in the aftermath of the

September 11, 2001 terrorist attacks, coordinates with

the Federal Emergency Management Agency (FEMA) to

administer the Fire Protection & Safety (FP&S) Grant

Program - one of three grant programs that “focus on

enhancing the safety of the public and fire fighters with

respect to fire and fire-related hazards.” See FEMA,

Fire Prevention and Safety Grant Program Fact Sheet

(February 2024) (stating that “[s]ince FY 2002, the FP&S

Grant Program has awarded approximately $852 million

in grant funding to provide critically needed resources

to strengthen community fire prevention programs and

enable scientific research on innovations that improve fire

fighter safety, health, and wellbeing.”)

This science, in turn, prompted a wave of legislative

enactments at the state and federal level providing

benefits and legal presumptions in favor of fire fighters

stricken by one of many illnesses associated with their

13

dangerous occupation. In the last two decades, Congress

has persistently demonstrated a commitment to ensuring

laws governing benefits to disabled fire fighters are

interpreted inclusively, in favor of coverage.

II. Increased Risk of Job-Related Disability Makes

Fire Fighters Especially Reliant on Access

to the Courts to Remedy Unlawful Disability

Discrimination in Post-Employment Benefit Design

and Administration

The substantial increase in federal funding for

scientific research into fire fighter health and safety,

including the frequency and causes of potentially disabling

injuries and illness, created a body of research that

motivated Congress to address disparities in disability

benefits between federal and state fire fighters. Much of

this research was cited by the House Committee Report

accompanying the Federal Firefighters Fairness Act as

support for the decision to provide a legal presumption that

a number of illnesses and injuries common to fire fighters

have an occupational origin and entitle claimants who meet

federal years of service and other eligibility criteria to

benefits. U.S. House, Education and Labor Cmte., Federal

Firefighters Fairness Act of 2022. (H. Rpt. 117-306). This

is further evidence of Congress persistent intention that

any ambiguities in the constellation of federal laws now

addressing fire fighter access to disability benefits should

be resolved in favor of their inclusion and coverage.

Unsurprisingly, the substantial body of scientific

research into fire fighter illness and injury published in

the last twenty years demonstrates that fire fighting is

strenuous and dangerous work. Research shows that fire

14

fighters are more likely than other workers to develop

certain cancers and diseases and suffer physical injury and

cardiac events because of their daily exposure to stress,

smoke, heat, carbon monoxide, and toxic substances. Fire

fighters are 3.5 times more likely to suffer a workplace

injury and 3.8 times more likely to suffer a work-related

musculoskeletal disorder such as sprain, strain, or muscle

pains than private-sector workers. 8

United States fire fighters experienced an average of

22,589 non-fatal injuries on the fireground each year from

2017 through 2021.9 Injuries involving exposure to a hazard

(such as heat, smoke, or toxic agents) and overexertion or

strain were the most common injuries experienced by fire

fighters in the study.10 Id. One-quarter of such injuries

(24 percent) resulted in lost work time, while another 16

percent of the injuries required treatment by a physician

but resulted in no lost time.11 Id.

In addition to the immediate physical risks of strain

or burns, fire fighters also face the danger of suffering

8. Seth A. Seabury & Christopher F. McLaren, The Frequency,

Severity, and Economic Consequences of Musculoskeletal

Injuries to Firefighters in California, NAT’L LIBR. MED. (Sept.

1, 2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4945236/

(last visited Apr. 5, 2024).

9. Richard Campbell, Firefighter Injuries on the Fireground,

NAT’L FIRE PROT. ASS’N (December 2023), https://www.

nfpa.org/education-and-research/research/nfpa-research/firestatistical-reports/patterns-of-firefighter-fireground-injuries,

(last accessed Apr. 4, 2024).

10. Id.

11. Id.

15

disabling illness associated with occupational exposure to

toxins. Smoke at fire scenes now contains more complex

combustion products due to the increased number of

synthetics in U.S. homes and businesses. American homes,

cars, and businesses are increasingly constructed and

furnished with synthetic material.12 In an early study

that measured air contaminant levels at more than 200

structural fires, the carcinogen benzene was detected in

181 of 197 of samples taken at fire scenes.13 More recent

studies have observed increased smoke density related to

synthetics, such as styrene and vinyl-based materials.14

Because of the known increased toxicity of structural

fires, as well as the uncertain risks of exposure to fires

originating in new technologies and materials, fire fighters

face increased risk of contracting disabling illness, often

prematurely.

Cancer is a significant contributor to fire fighter

disability.15 There are at least 11 chemicals frequently

12. Stephen Kerber, Analysis of Changing Residential

Fire Dynamics and Its Implications on Firefighter Operational

Timeframes, 48 Fire Technol. 865 (2011), available at https://link.

springer.com/content/pdf/10.1007/s10694-011-0249-2.pdf (last

accessed Apr. 4, 2024).

13. Robert D. Treitman et al., Air Contaminants Encountered

by Firefighters, 41 Am. Indus. Hygiene Ass’n J. 796 (1980),

available at https://pubmed.ncbi.nlm.nih.gov/7457369/ (last

accessed Apr. 4, 2024)

14. Thomas Fabian et al., Firefighter Exposure to Smoke

Particulates (2010), https://fsri.org/research/firefighter-exposuresmoke-particulates#tabs-findings. (last accessed Apr. 4, 2024).

15. Alarmed by these findings and encouraged by the

IAFF, Congress passed, and President Trump signed into law

16

present in the fire fighting environment that are classified

by the International Agency for Research on Cancer

(IARC) as carcinogenic to humans, such as arsenic,

asbestos, benzene, and formaldehyde. In 2022, the

IARC published a study that concluded the occupation of

firefighting is itself carcinogenic.16As a result of laboring

for years in a carcinogenic occupation, fire fighters are

more likely to develop cancer compared to the general

population. A meta-analysis of 32 studies identified 10

cancers that fire fighters have a statistically significant

increased risk of developing: testicular (102% greater

risk), multiple myeloma (53%), non-Hodgkin lymphoma

(51%), skin and malignant melanoma (39% and 32%,

respectively), brain (32%), rectum (29%), prostate (28%),

stomach (22%), and colon (21%).17

Fire fighters are at greater risk of sudden and

disabling cardiac events due to smoke inhalation and

strenuous activity. Sudden cardiac arrest is most likely

to occur during or shortly after emergency duties.18 The

the Firefighter Cancer Registry Act of 2018, which requires the

Centers for Disease Control and Prevention (CDC) to develop and

maintain a National Firefighter Registry to collect data regarding

the incidence of cancer in firefighters. Pub L. No. 115–19 (2018).

16. See Demers, Paul A., et al., Carcinogenicity of occupational

exposure as a Firefighter, 23.8 The Lancet Oncology, 985-86 (2022),

https://w w w.thelancet.com/journals/ lanonc/article/ PIIS1470 2045(22)00390-4/abstract (last accessed Apr. 4, 2024).

17. Grace K. LeMasters et al., Cancer Risk Among

Firefighters: A Review and Meta-Analysis of 32 Studies, 48 J.

Occup. & Envtl. Med. 1189 (2006), https://pubmed.ncbi.nlm.nih.

gov/17099456/ (last accessed Apr. 4, 2024)

18. Stefanos N. Kales et al., Firefighters and On-Duty

Deaths from Coronary Heart Disease: A Case Control Study, 2

17

risk of sudden cardiac events is increased by four elements

common to emergency and fire response: chemical

exposures, physical exertion, heat exertion, and shift

work.19

Finally, researchers have identified a general causal

link between hazardous exposures common to fire fighting

and Parkinson’s disease, which is the illness that disabled

and ended the fire fighting career of Lt. Stanley.20 One such

study concluded, “Firefighters have an increased risk for

[Parkinson’s disease] symptoms as a result of the toxin

exposures that are frequently present in fires. Our study

showed that the number of years working as a firefighter,

the number of days per week working, and the number of

fires worked correlated with higher reports of Parkinson

symptoms such as hyposmia, micrographia, and decreased

walking pace.” Id.

In summary, a developing body of federally funded

research on the occupational hazards of fire fighting

demonstrates that the physical and chemical dangers

of fire scenes and fire stations result in excess disabling

illness and injury for fire fighters compared to the general

Envtl. Health 14 (2003), available at https://pubmed.ncbi.nlm.nih.

gov/14613487/, (last accessed Apr. 4, 2024).

19. See e.g., Elpidoforos S. Soteriades et al., Cardiovascular

Disease in US Firefighters A Systematic Review, 19 Cardiol. in Rev.

202 (2011), available at https://pubmed.ncbi.nlm.nih.gov/21646874/

(last accessed Apr 4, 2024).

20. See Roshni Kotwani, Andrea N. Clapp, Haley E. Huggins

et al., Assessment of Parkinson’s Disease symptoms and toxin

exposures in firefighters: a cross-sectional survey, (Feb. 2021),

available at https://doi.org/10.21203/rs.3.rs-223780/v1 (last

accessed Apr. 4, 2024).

18

population. That is why in recent decades the IAFF

and its affiliates have spearheaded efforts that have

resulted in nearly every state and the federal government

legislating presumptions and other legal frameworks to

expand benefit eligibility that recognize the link between

firefighting and disabling injury and illness. It is also why

the Court should ensure fire fighters, demonstrably more

likely than the general population to become disabled, have

access to court for enforcement of their right to be free

from disability discrimination, even after (and especially)

when disability ends their employment.

III. Lt. Stanley Was a Qualified Individual at the Time

the Discriminatory Benefit Modification was

Adopted and Remains Affected By It, Entitling Her

to Bring Suit Under Title I of the ADA as Modified

by the Fair Pay Act

This case presents an opportunity for the Court

to ensure that federal courts uniformly provide a

remedy to fire fighters disabled by illness or injury

and then discriminated against by unlawful design or

administration of fringe benefit plans. The Eleventh

Circuit failed to properly apply amendments to the ADA

accomplished by the Fair Pay Act, resorting to the stale

logic of its prior decision in Gonzalez that employees

forced into disability retirement are not for the purposes

of the prohibition on discrimination at 42 U.S.C. § 12112(a)

a “qualified individual” as that term is defined in 42

U.S.C. §§ 12111(8), because a disabled retiree is a person

who no longer “can perform the essential functions of

the employment position that such individual holds or

desires…”.

19

After nearly two decades of fire fighting, Parkinsons

disease robbed Lt. Stanley of her ability to perform the

essential duties of her demanding position at age 47. Pet.

App. 2a. But she first suffered discrimination within the

purview of the ADA as modified by the Fair Pay Act,

when a benefit plan that initially paid a monthly stipend

to all service eligible retired employees until age 65 was

modified so that employees who retired as a result of

disability were only provided the monthly stipend for 24

months after retirement. Pet. App 3a. This benefit plan

was unlawfully modified in or around 2003, while Lt.

Stanley worked for the City. Id. Thus, she was a ‘qualified

individual’ at the time a “discriminatory compensation

decision or other practice is adopted,” 42 U.S.C. §

2000e-5(e)(3)(A).

In the more than twenty years since the Eleventh

Circuit decided Gonzalez, Congress and many state

legislatures have recognized the disabling hazards of fire

fighting and taken affirmative legislative action to expand

access to disability benefits. Congress, in particular, has

evidenced in that time a persistent intent that there be

no disparity in access to disability benefits among an

increasingly federally funded fire service, comprised of

fire fighters employed by federal and state fire agencies

frequently dispatched for coordinated response to the

same fires and emergencies. Thus, the ADA as modified by

the Fair Pay Act should be applied in this and every case in

a uniform manner consistent with Congressional direction

that laws governing benefits to disabled fire fighters must

be interpreted inclusively, in favor of coverage and to avoid

discrepancy in access to disability benefits between fire

fighters working side by side. 21

21. The Fair Pay Act provides in pertinent part that that

ADA Title I claims accrue (or re-accrue) “when a discriminatory

20

Lt. Stanley’s entitlement to maintain a claim under

ADA Title I should be recognized as having vested when

she was a ‘qualified individual’ and the City implemented

its unlawful benefits change, rather than being invalidated

when disability compelled her into retirement. The

Eleventh Circuit’s contrary interpretation, which asserts

that Lt. Stanley cannot sue as a “qualified individual”

because she was disabled and no longer employed by

Respondent from the time she began receiving the

monthly benefit, leads to illogical conclusions. According

to this interpretation, Lt. Stanley would lack standing to

sue under Title I until the discriminatory modification

impacted her, which occurred twenty-four months after

her employment ended and her monthly benefits ceased

prematurely due to disability retirement. Standing

requires actual injury. However, to qualify for these

disability benefits initially, Lt. Stanley would have had to

demonstrate disability and a corresponding inability to

perform job functions. Paradoxically, by proving herself

disabled, Lt. Stanley would render herself perpetually

unable to sue as a “qualified individual” under Title I.

Allowing the circuit split and the Eleventh Circuit’s

outdated application to persist would effectively bar

Lt. Stanley and any other plaintiff from challenging an

employer’s discriminatory provision of fringe benefits

compensation decision or other practice is adopted, when an

individual becomes subject to a discriminatory compensation

decision or other practice, or when an individual is affected

by application of a discriminatory compensation decision or

other practice, including each time wages, benefits, or other

compensation is paid, resulting in whole or in part from such a

decision or other practice.” Pub. L. 111-2, 123 Stat. 5, § 4 (2009)

(amending 42 U.S.C. § 2000e-5(e)(3)(A)).

21

under Title I of the ADA, even as they remain affected

in retirement by of an unlawful act that occurred during

their employment. Such a result contradicts the statute

designed to prohibit such discrimination.

CONCLUSION

The IAFF respectfully requests that Petitioner’s Writ

of Certiorari be granted.

Respectfully submitted,

John R. Mooney

Counsel of Record

A rthur R. Traynor

Mooney, Green, Saindon, Murphy

& Welch, PC

1920 L Street, NW, Suite 400

Washington, DC 20036

(202) 783-0010

jmooney@mooneygreen.com

Counsel for Amicus Curiae