Petition for Writ of Certiorari — Stephanie M. Redding, Petitioner v. Markwayne Mullin, Secretary of Homeland Security

Supreme Court briefMay 28, 2026

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No. 25In the

Supreme Court of the United States

STEPHANIE M. REDDING,

Petitioner,

MARKWAYNE MULLIN, SECRETARY OF

HOMELAND SECURITY, IN HIS

OFFICIAL CAPACITY FOR THE

DEPARTMENT OF HOMELAND SECURITY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Theresa Dawn Truitt Kraft

Counsel of Record

Toikka Kraft Law Group LLP

1629 K Street NW, Suite 300

Washington, DC 20006

(202) 508-3648

tkraft@tk-lawgroup.com

Counsel for Petitioner

121122

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

I. Whether an employer satisfies its obligation under

the Rehabilitation Act and 29 C.F.R. § 1630.2(o)(3) engage

in a good-faith interactive process when it (a) proposes

a reassignment while knowingly withholding that

acceptance will eliminate a separately pending disabilityretirement benefit, and (b) closes the accommodation

process before the reassignment’s required training is

completed and before the accommodation can be evaluated

for effectiveness.

II. Whether the Fourth Circuit’s ruling that a

completed reassignment forecloses inquiry into the good

faith of the process that produced it conflicts with A.J.T.

v. Osseo Area Sch., Indep. Sch. Dist. No. 279, 605 U.S.

335 (2025), and the multi-circuit consensus that delay

or concealment in the interactive process may itself

constitute a failure to accommodate.

III. Whether the government may invoke an

employee’s participation in a proposed accommodation as

“voluntary” consent foreclosing further judicial inquiry

where the government obtained that participation while

concealing material facts about its consequences, in

conflict with the principle of Bumper v. North Carolina,

391 U.S. 543 (1968), that consent procured through

government concealment is not voluntary.

PARTIES TO THE PROCEEDING

Petitioner Stephanie M. Redding was the PlaintiffAppellant in the court below. A Rule 29.6 corporate

disclosure statement is not necessary. Ms. Redding does

not have a stock ticker symbol.

Respondent Mark wayne Mullin, Secretar y of

Homeland Security, in his official capacity for the

Department of Homeland Security, was the DefendantAppellee in the court below.

iii

RELATED CASES

Redding v. Mayorkas, 23-1325-DJN-JFA, U.S.

District Court for the Eastern District of Virginia.

Judgement entered Feb. 5, 2024.

Redding v. Noem, 24-1411, U.S. Court of Appeals for

the Fourth Circuit. Judgment entered Mar. 3, 2026.

TABLE OF CONTENTS

Page

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

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

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

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

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

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

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

CONST I T U T IONA L A N D STAT U T ORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 4

A. Statutory and Regulatory Framework . . . . . . . . 4

B. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 6

Ms. Redding ’s Employ ment and

Medical Conditions . . . . . . . . . . . . . . . . . . . . . 6

Table of Contents

Page

TSA’s Fitness-for-Duty Determination

a nd t he D i s abi l it y R et i r ement

Application . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TSA’s Agency Certification and Its

Concealment from Ms. Redding . . . . . . . . . . 7

The reassignment-as-accommodation

process was closed before training was

completed and before effectiveness

could be assessed . . . . . . . . . . . . . . . . . . . . . . 7

After the transfer, TSA continued to

conceal its own prior administrative

acts and declined to pursue available

corrective measures . . . . . . . . . . . . . . . . . . . . 9

C. Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . . 11

REASONS FOR GRANTING THE PETITION . . . . 12

T H E C I R C U I T S A R E DI V I DED

ON W H E T H ER B A D FA I T H I N

THE INTERACTI V E PROCESS IS

INDEPENDENTLY ACTIONA BLE,

A N D T H E F OU RT H CI R C U I T ’ S

OUTCOME-FOCUSED A PPROACH

DEEPENS THE SPLIT . . . . . . . . . . . . . . . . . . . 12

Table of Contents

Page

II. THE DECISION CONFLICTS WITH

A . J.T. V. OSSEO A REA SCHOOLS

AND PRESENTS THE STANDARDS

QU ESTION T H AT DECISION

DELIBERATELY LEFT OPEN . . . . . . . . . . . 15

III. T H E G OV ER N M EN T M AY NO T

INVOKE

“ VOLUNTARY”

CONSENT OBTA INED THROUGH

CONCEA LM EN T OF M AT ERI A L

FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

IV. T H E U N R E S O L V E D D U A L TR ACK PROBLEM IN FEDER A L

EM PLOY MEN T PRESEN TS A

QU ESTION OF RECURRING

NATIONAL IMPORTANCE . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

vii

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

F OR T H E F OU RT H CI RCU I T,

FILED MARCH 3, 2026 . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM ORDER

OF THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF VIRGINIA, ALEXANDRIA DIVISION,

FILED FEBRUARY 5, 2024 . . . . . . . . . . . . . . . . . . 13a

viii

TABLE OF CITED AUTHORITIES

Page

Cases

A.J.T. v. Osseo Area Sch., Indep. Sch. Dist. No. 279,

605 U.S. 335 (2025) . . . . . . . . . . . . . . . . . . . . . 15, 16, 23

AFSCME Council 79 v. Scott,

717 F.3d 851 (11th Cir. 2013) . . . . . . . . . . . . . . . . . . . . 18

Ali v. McCarthy,

179 F. Supp. 3d 54 (D.D.C. 2016) . . . . . . . . . . . . . . . . 19

Beck v. Univ. of Wis. Bd. of Regents,

75 F.3d 1130 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . 5, 13

Bolden v. Se. Pa. Transp. Auth.,

953 F.2d 807 (3d Cir. 1991) . . . . . . . . . . . . . . . . . . . . . 18

Bumper v. North Carolina,

391 U.S. 543 (1968) . . . . . . . . . . . . . . . . . . . . . 17, 18, 19

Cutrera v. Bd. of Supervisors,

429 F.3d 108 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 13

Glover v. United States,

144 F.4th 336 (D.C. Cir. 2025) . . . . . . . . . . . . . . . . . . 18

Jackson v. City of Chicago,

414 F.3d 806 (7th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 19

Lo-Ji Sales v. New York,

442 U.S. 319 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Cited Authorities

Page

Redding v. Mayorkas,

No. 1:23cv1325(DJN), 2024 U.S. Dist. LEXIS 28878

(E.D. Va. Feb. 5, 2024) . . . . . . . . . . . . . . . . . . . . . . . 2, 3

Redding v. Noem,

168 F.4th 203 (4th Cir. Mar. 3, 2026),

2026 U.S. App. LEXIS 6218 . . . . . . . . . . . . . . . . . . . . 2

Schneckloth v. Bustamonte,

412 U.S. 218 (1973) . . . . . . . . . . . . . . . . . . . . . 17, 18, 19

Strife v. Aldine Indep. Sch. Dist.,

138 F.4th 237 (5th Cir. 2025) . . . . . . . . . . . . . . . . 14, 15

Taylor v. Phoenixville Sch. Dist.,

184 F.3d 296 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . 5, 13

Willis v. Conopco, Inc.,

108 F.3d 282 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . 13

Woodman v. Runyon,

132 F.3d 1330 (10th Cir. 1997) . . . . . . . . . . . . . . . . . . . 5

Statutes

28 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

29 U.S.C. § 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

Cited Authorities

Page

42 U.S.C. § 12111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

42 U.S.C. § 12112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Other

29 C.F.R. § 1630.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 12

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . 4, 17, 19

INTRODUCTION

This case presents a recurring and unresolved

question about what the Rehabilitation Act requires

when a federal employer controls both sides of a disabled

employee’s decision-making process and withholds

information material to whether a proposed reassignment

is voluntary, informed, or even complete.

Petitioner Stephanie Redding applied for disability

retirement through OPM after TSA determined that she

no longer met Federal Air Marshal medical standards.

While that retirement application was pending, TSA

completed and submitted an Agency Certification of

Reassignment and Accommodation Efforts (SF-3112D)

representing that accommodation and reassignment were

not possible but did not provide Ms. Redding a copy. J.A.

11. TSA then initiated a separate accommodation process

and offered reassignment to FLETC. TSA later admitted

in writing that Ms. Redding “was not counseled about the

impact that the transfer would have on her application for

retirement.” J.A. 14-15.

The problem did not end there. TSA also closed the

reasonable-accommodation process on May 31, 2018,

before Ms. Redding had completed the training required

for the reassigned position and before the reassignment

could be meaningfully evaluated for effectiveness. J.A. 1213. Ms. Redding’s effective start date was Sunday, May 27,

2018; FLETC was closed that day and the following day

for Memorial Day; May 29 was consumed by onboarding;

May 30 consisted of introductions, orientation, and

administrative setup; and TSA closed the file on May 31.

J.A. 12-13. On TSA’s own timeline, the agency gave the

reassignment no meaningful chance to succeed before

declaring the process over.

After OPM later approved disability retirement,

DHS provided TSA with written options for correcting

the administrative error if Ms. Redding had not been

properly counseled. J.A. 14-15. But TSA did not disclose to

OPM that it had already completed the SF-3112D, did not

acknowledge that the form had not been provided to Ms.

Redding, and did not pursue either remedial option. J.A.

14-15. Instead, TSA represented that it could not process

the separation. J.A. 14-15. The concealment in this case

is therefore not a matter of oral misunderstanding. It is

documented in a paper trail.

The Four th Circuit never theless treated the

reassignment as a completed and “manifestly reasonable”

accommodation and ended the analysis there. App. A at

11. That holding allows a federal employer to prevail by

pointing to the existence of a reassignment while ignoring

whether the employee’s acceptance was informed, whether

the process was conducted in good faith, and whether the

reassignment was ever actually completed or evaluated

as OPM guidance and agency policy required. This Court

should grant review.

OPINIONS BELOW

The published opinion of the United States Court of

Appeals for the Fourth Circuit (App. A) is reported at

Redding v. Noem, 168 F.4th 203 (4th Cir. Mar. 3, 2026),

2026 U.S. App. LEXIS 6218. The opinion of the United

States District Court for the Eastern District of Virginia

(App. B) is reported at Redding v. Mayorkas, 2024 U.S.

Dist. LEXIS 28878 (E.D. Va., Feb. 5, 2024) aff’d sub nom

Redding v. Noem, 2026 U.S. App. LEXIS 6218.

JURISDICTION

The court of appeals entered judgment on March

3, 2026. This Court has jurisdiction under 28 U.S.C.

§ 1254(1). This petition is filed within 90 days of that

judgment.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case arises under The Rehabilitation Act of 1973,

29 U.S.C. § 794(a), which provides in relevant part:

No otherwise qualified individual with a

disability . . . shall, solely by reason of her or

his disability, be excluded from the participation

in, be denied the benefits of, or be subjected to

discrimination under any program or activity

conducted by any Executive agency.

Title 29 C.F.R. § 1630.2(o)(3) which provides:

To determine the appropriate reasonable

accommodation it may be necessar y for

the covered entity to initiate an informal,

interactive process with the qualified individual

with a disability in need of the accommodation.

This process should identify the precise

limitations resulting from the disability and

potential reasonable accommodations that could

overcome those limitations.

42 U.S.C. § 12111(8) defines “qualified individual” as one

who, “with or without reasonable accommodation, can

perform the essential functions of the employment position

that such individual holds or desires.”

The Fourth A mendment to the United States

Constitution provides: “The right of the people to be

secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be

violated.”

These provisions are directly implicated by the

petitioner’s claims that her former employer, the

Department of Homeland Security, failed to engage

in good faith interactions to determine reasonable

accommodation, including disability retirement and

reassignment by failing to disclose information only

the agency had about the impact of the dual track. The

interactions required under the Rehabilitation Act must

include informed consent. When the agency has relevant

information that it does not disclose to the employee there

can be no informed consent and no meaningful interactive

process.

STATEMENT OF THE CASE

A. Statutory and Regulatory Framework

The Rehabilitation Act prohibits federal agencies

from discriminating against “qualified individual[s] with

a disability.” 29 U.S.C. § 794(a). The statute adopts the

standards of Title I of the ADA. Id. § 794(d). Among those

standards is the requirement that employers provide

“reasonable accommodation[s] to the known physical or

mental limitations of an otherwise qualified individual

with a disability.” 42 U.S.C. § 12112(b)(5)(A).

The implementing regulations require that an employer

“initiate an informal, interactive process with the qualified

individual with a disability in need of the accommodation.”

29 C.F.R. § 1630.2(o)(3). Courts have universally recognized

that this process must be conducted in good faith. The Third

Circuit has held that “[b]oth parties have a duty to assist in

the search for appropriate reasonable accommodation and

to act in good faith” and that “[a] party that obstructs or

delays the interactive process is not acting in good faith.”

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312 (3d

Cir. 1999). The Seventh Circuit has recognized that “when

the parties are missing information . . . that can only be

provided by one of the parties, . . . the party withholding

the information may be found to have obstructed the

process.” Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130,

1135 (7th Cir. 1996). And the Tenth Circuit has held that

the Rehabilitation Act “requires an ‘interactive process’

whereby federal employers investigate in good faith the

availability of positions to which disabled employees could

be reassigned, a task that employers are far better placed

to do than are employees.” Woodman v. Runyon, 132 F.3d

1330, 1345 (10th Cir. 1997).

Separately, federal employees with qualifying

disabilities may apply for disability retirement under the

Federal Employees Retirement System. OPM’s disability

retirement handbook, Chapter 60 of the CSRS/FERS

Handbook, requires agencies to promptly notify OPM

of any successful accommodation, confirming that the

accommodation and retirement tracks are formally linked

in the regulatory framework.

B. Factual Background

Ms. Redding’s Employment and Medical

Conditions

Ms. Redding worked as a Federal Air Marshal with

TSA from March 13, 2011, through May 27, 2018. J.A.

8. At the time of hiring, she disclosed her Degenerative

Progressive Myopia and Keratoconjunctivitis Sicca,

completed a pre-employment medical examination, and

was deemed suitable for employment. J.A. 8, 90. During

her employment, she developed additional conditions,

including Mitral and Tricuspid Valve Regurgitation,

Borderline Pulmonary Hypertension, Hypoglycemia, and

Bilateral Chronic Exertional Compartment Syndrome,

that caused her at various times to be placed on temporary

light-duty status. J.A. 8-9. In March 2016, she was

assigned to a ground-based Regional Coordinator position

at TSA Headquarters in Reston, Virginia, which required

her to fly in “mission status” only once per month. J.A. 8-9.

In October 2016, she received an employee performance

review that “Exceeded Expectations.” J.A. 9.

TSA’s Fitness-for-Duty Determination and the

Disability Retirement Application

In April 2017, Ms. Redding completed a mandated

biannual physical examination. J.A. 9. During the summer

of 2017, TSA informed her that her uncorrected vision

no longer met the requirements for duty. J.A. 9. At the

recommendation of TSA’s Medical Section, Ms. Redding

began gathering paperwork for disability retirement. J.A.

10. On September 28, 2017, she submitted an Application

for Immediate Retirement to OPM and TSA human

resources. J.A. 10.

TSA’s Agency Certification and Its Concealment

from Ms. Redding

On November 6, 2017, Karen Carnevale, Branch Chief

of the Benefits Branch of Personnel Services for TSA,

completed the Agency Certification of Reassignment

and Accommodation Efforts (SF 3112D) in support of

Ms. Redding’s disability retirement application. J.A.

11. The Certification stated that “the medical evidence

presented to the agency confirm[s] that accommodation

is not possible and reassignment was not possible because

there were no vacant positions at the agency, at the same

pay grade or pay level and tenure and within the same

commuting area.” J.A. 11. The form was submitted to OPM

through agency channels. Ms. Redding was not provided

a copy. J.A. 11.

The reassignment-as-accommodation process

was closed before training was completed and

before effectiveness could be assessed.

On January 11, 2018, Ms. Redding received a

memorandum from her supervisor advising that her

inability to meet medical standards could result in removal

and directing her to request reasonable accommodations,

apply for vacant positions, or resign. J.A. 11, 319.

That same day, Ms. Redding completed a request for

reasonable accommodations, requesting reassignment

to “a 6c retirement position not affected by medical

restrictions.” J.A. 11. TSA advised that there were no

vacant or anticipated vacant positions within TSA. J.A.

11-12. The search was expanded department-wide to all of

DHS. J.A. 12. On March 9, 2018, Ms. Redding identified

two general FLETC instructor positions. J.A. 12. On

May 27, 2018, she was reassigned to the Federal Law

Enforcement Training Center (FLETC) in Georgia as

a Law Enforcement Specialist in the Behavioral Science

Division, with an approximate $20,000 decrease in salary.

J.A. 12. Four days later, on May 31, 2018, JoAnn Cottman,

TSA’s Reasonable Accommodation Program Manager,

closed the accommodation process by email. J.A. 12-13.

That closure occurred before the reassignment had

been fully implemented or meaningfully tested. Ms.

Redding’s effective start date was Sunday, May 27, when

FLETC was closed. The next day, May 28, was Memorial

Day. On May 29, she spent the day in onboarding with

FLETC human resources. On May 30, she was introduced

to Behavioral Science Division staff, toured facilities, set

up her office, and began reviewing policies. TSA closed

the process on May 31. J.A. 12-13. Before TSA declared

the accommodation complete, Ms. Redding had not yet

performed substantive work in the reassigned role.

That timing matters because, under OPM guidance

and TSA’s own policy, the accommodation process was

required to remain open until any required training

for the reassigned position had been completed and the

reassignment could be evaluated for effectiveness. J.A.

12-13. TSA did not do so. Ms. Redding never received the

required training to be fully qualified in the reassigned

position. TSA therefore closed the file not because the

accommodation had succeeded, but because it unilaterally

chose to terminate the process before success or failure

could be determined.

At no point during this process did TSA inform Ms.

Redding that accepting the FLETC reassignment would

affect her pending disability-retirement application.

J.A. 11-12. TSA had already certified to OPM that

accommodation was not possible, knew that a “successful”

accommodation would affect the retirement application,

and withheld that information while also closing the

accommodation process before the reassignment could

be fully completed. J.A. 11-15.

After the transfer, TSA continued to conceal

its own prior administrative acts and declined

to pursue available corrective measures.

A fter reassignment, Ms. Redding experienced

difficulty at FLETC, including a new medical condition

requiring surgery. J.A. 13. Beginning in October 2018, she

attempted to request reconsideration of the reassignment.

J.A. 13. In July 2019, she contacted TSA’s reasonable

accommodation office, which advised that it could not

assist because she was no longer a TSA employee. J.A.

13-14. In October 2019, she received a disability retirement

approval letter from OPM, but FLETC refused to process

the separation because she had been reassigned through

an “agency-wide” accommodation process. J.A. 14.

On October 25, 2019, Karen Carnevale emailed OPM

and FLETC that Ms. Redding “was not counseled about

the impact that the transfer would have on her application

for retirement” and that TSA was “unable to process the

separation” because Ms. Redding was no longer a TSA

employee. J.A. 14-15.

That email did not disclose several critical facts

already known to TSA. It did not disclose that Carnevale

herself had completed the SF-3112D in November 2017

in support of the retirement application. J.A. 11. It did

not disclose that TSA had not provided that form to

Ms. Redding. J.A. 11. It did not disclose that TSA had

represented to OPM that accommodation was not possible

while simultaneously pursuing the reassignment that

later extinguished the retirement track. J.A. 11. And

it did not disclose that DHS had already provided TSA

with written guidance identifying two possible remedial

options. J.A. 14-15.

On October 3, 2019, DHS Human Capital Policy and

Programs had advised TSA of two options. One was

to correct the reassignment retroactively to a detail if

Ms. Redding had not been properly counseled, thereby

preserving her prior position and restoring the retirement

path. J.A. 14-15. The other was to proceed on the premise

that proper counseling had occurred and advise that

acceptance of the permanent position stopped the disability

application. J.A. 14-15. DHS expressly tied the choice

between those options to whether Ms. Redding had been

counseled and had signed the statement contemplated

by Chapter 60 of the CSRS/FERS Handbook. J.A. 14-15.

Carnevale nevertheless continued corresponding

with OPM without acknowledging the SF-3112D, without

disclosing that Ms. Redding had not received it, and

without pursuing either corrective option DHS identified.

J.A. 14-15. TSA’s concealment was therefore not confined

to the original reassignment decision. It continued after

the error had been identified and after remedial measures

had been presented. The paper trail shows not only a

failure to disclose, but a failure to correct.

C. Proceedings Below

Ms. Redding filed a complaint in the District of

Columbia on July 25, 2022, asserting a failure-toaccommodate claim under the Rehabilitation Act. The case

was transferred to the Eastern District of Virginia. The

district court granted the government’s motion to dismiss

on February 5, 2024, holding that Ms. Redding “ha[d]

not plausibly ple[d] that she [wa]s a qualified individual.”

App. 28a.

The Fourth Circuit affirmed in a published opinion

on March 3, 2026. The panel (Wilkinson, J., joined by

King and Gregory, JJ.) held that Ms. Redding’s complaint

“reveals both that she is not a qualified individual for her

desired Regional Coordinator position and that TSA did

in fact provide reasonable accommodations.” App. A at

7. The court characterized the FLETC reassignment as

the product of a process in which “TSA collaborated and

communicated with Redding in good faith” and noted that

Ms. Redding “self-selected her reassignment to FLETC.”

App. A at 10. The court stated: “Reassignment to FLETC

was manifestly reasonable, and that is where our analysis

ends.” App. A at 11.

The opinion does not discuss the Agency Certification.

It does not discuss Ms. Carnevale’s October 2019 email.

It does not address whether the interactive process

was conducted in good faith given TSA’s simultaneous

participation in two proceedings and its concealment of

how one affected the other. It does not address TSA’s

closure of the accommodation file after a single day of

substantive work, before completion of required position

training, in violation of OPM’s CSRS/FERS Handbook

requirements. And it does not address the post-transfer

record showing that TSA, after receiving two remedial

options from DHS, instead continued correspondence with

OPM without disclosing that Carnevale had completed the

SF-3112D, had never provided it to Ms. Redding, and had

chosen not to pursue either available remedy.

REASONS FOR GRANTING THE PETITION

THE CIRCUITS ARE DIVIDED ON WHETHER

BAD FAITH IN THE INTERACTIVE PROCESS

IS INDEPENDENTLY ACTIONABLE, AND THE

FOURTH CIRCUIT’S OUTCOME-FOCUSED

APPROACH DEEPENS THE SPLIT.

The Rehabilitation Act’s implementing regulations

require employers to “initiate an informal, interactive

process” to identify reasonable accommodations. 29 C.F.R.

§ 1630.2(o)(3). Yet the circuits are sharply divided on

whether an employer’s failure to engage in that process

in good faith creates independent liability or is merely

evidence relevant to the broader accommodation claim.

The Third, Fifth, and Seventh Circuits treat a

failure to engage in the interactive process in good

faith as independently actionable. The Third Circuit has

recognized a four-part test under which a plaintiff may

demonstrate an employer’s breach: that “the employer

knew about the employee’s disability,” “the employee

requested accommodations,” “the employer did not make

a good faith effort to assist the employee in seeking

accommodations,” and “the employee could have been

reasonably accommodated but for the employer’s lack of

good faith.” Taylor v. Phoenixville Sch. Dist., 184 F.3d

296, 316 (3d Cir. 1999). The Fifth Circuit has held that

“when an employer’s unwillingness to engage in a good

faith interactive process leads to a failure to reasonably

accommodate an employee, the employer violates the

ADA.” Cutrera v. Bd. of Supervisors of La. State Univ.,

429 F.3d 108, 113 (5th Cir. 2005). And the Seventh Circuit

has held that “courts should look for signs of failure to

participate in good faith or failure by one of the parties to

make reasonable efforts to help the other party determine

what specific accommodations are necessary.” Beck v. Univ.

of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996).

In contrast, the Ninth, Tenth, and Eleventh Circuits

hold that a failure to engage in the interactive process

is evidence, not a freestanding cause of action. The

Eleventh Circuit has stated that “where a plaintiff cannot

demonstrate ‘reasonable accommodation,’ the employer’s

lack of investigation into reasonable accommodation is

unimportant.” Willis v. Conopco, Inc., 108 F.3d 282, 285

(11th Cir. 1997).

The Fourth Circuit’s opinion takes the narrowest

possible view. By holding that “Reassignment to FLETC

was manifestly reasonable, and that is where our analysis

ends,” App. A at 11, the court treated the outcome of the

process as dispositive and foreclosed any inquiry into

whether TSA’s concealment of material information was

independently actionable. That holding squarely conflicts

with the approach of circuits that require the process itself

to be conducted in good faith, regardless of the eventual

outcome.

The Fifth Circuit’s 2025 decision in Strife v. Aldine

Independent School District deepens this split further.

In Strife, the court reversed dismissal of a failure-toaccommodate claim where the employer spent six months

delaying approval of an accommodation it ultimately

granted, holding that “delay in providing reasonable

accommodation may show a lack of good faith in the

interactive process.” Strife, 138 F.4th at 245. The court

explicitly rejected the premise that the employee must

suffer an adverse employment action, noting that “[a]

failure-to-accommodate claim provides a mechanism to

combat workplace discrimination even when the employee

in question has not suffered adverse employment action.”

Id. at 243.

TSA’s conduct here is a more serious process failure

than the delay at issue in Strife. In Strife, the employer

delayed for six months while evaluating a request.

Here, TSA actively participated in two simultaneous

proceedings, knew how one affected the other, and said

nothing. TSA then closed the accommodation case after

one substantive workday at the new position, before any

required position training was completed, and before any

reasonable assessment of whether the accommodation

was effective could be made. J.A. 12-13. OPM’s own

regulatory framework required the process to remain

open through training completion. TSA did not comply

with that requirement. That conflict is especially stark:

a reassignment that has not been fully implemented and

evaluated under the governing policy cannot be treated

as conclusively “manifestly reasonable” simply because

the personnel action became effective. If delay without

concealment survives dismissal in the Fifth Circuit, active

concealment combined with premature closure in violation

of OPM’s training-completion requirement should be

actionable in any circuit that takes good faith seriously.

The Fourth Circuit’s contrary holding directly conflicts

with Strife and the multi-circuit consensus Strife invokes,

warranting this Court’s review.

II. THE DECISION CONFLICTS WITH A.J.T. V.

OSSEO AREA SCHOOLS AND PRESENTS THE

STANDARDS QUESTION THAT DECISION

DELIBERATELY LEFT OPEN.

This Court’s unanimous decision in A.J.T. v. Osseo

Area Schools held that “[s]choolchildren bringing ADA

and Rehabilitation Act claims related to their education

are not required to make a heightened showing of ‘bad

faith or gross misjudgment’ but instead are subject

to the same standards that apply in other disability

discrimination contexts.” 605 U.S. 335, 340 (2025). But

the Court expressly declined to define what those baseline

standards are, noting that the question was not resolved

below and was outside the question presented by the

petition for certiorari. Id. at 345.

Redding presents a vehicle for this Court to begin

answering that question. Ms. Redding does not ask the

Court to resolve every issue A.J.T. left open. She presents a

narrow question: does good faith in the interactive process

require an employer to disclose material consequences of

a proposed accommodation when that information is in

the employer’s exclusive possession? That question can be

answered without resolving the broader debate over intent

standards, because TSA’s conduct satisfies even the most

demanding formulation. TSA made a series of deliberate

decisions: it completed the OPM certification, offered the

transfer, and closed the accommodation file. J.A. 11-13. At

each step, it knew Ms. Redding’s retirement application

was pending and said nothing. That is not negligence. It is

deliberate indifference to a known, certain consequence.

The Fourth Circuit’s opinion conflicts with A.J.T. by

applying precisely the kind of outcome-focused analysis

A.J.T. rejected. The Fourth Circuit did not ask whether

TSA acted with deliberate indifference, bad faith, or even

negligence. It asked only whether the accommodation

was “manifestly reasonable” and treated that inquiry as

dispositive. By declining to examine the quality of the

process, the decision is in tension with the general principle

recognized in A.J.T. and across multiple circuits that the

process through which an accommodation is identified

and provided must itself meet statutory standards. The

conflict is especially stark because TSA did not merely

withhold the retirement consequences of reassignment.

It also terminated the accommodation process before the

reassignment’s required training had been completed and

before effectiveness could be assessed. J.A. 12-13.

Two concurrences in A.J.T. confirm that the Court is

divided on the precise question this case presents. Justice

Thomas, joined by Justice Kavanaugh, expressed concern

about holding employers liable for disability discrimination

without some showing of intent. Justice Sotomayor, joined

by Justice Jackson, pointed in the opposite direction. The

majority left both unresolved. This case provides the

opportunity to answer the question both concurrences

addressed, on a record where TSA’s own documents

establish the relevant facts without dispute. J.A. 11-15.

III. THE GOVERNMENT MAY NOT INVOK E

“ VO L U N T A RY ” C O N S E N T O B T A I N E D

THROUGH CONCEALMENT OF MATERIAL

FACTS.

The Fourth Circuit’s treatment of Ms. Redding’s

participation as voluntary, without any inquiry into

whether it was informed, conflicts with a foundational

constitutional principle: the government may not invoke

consent as a shield when it has concealed from the

consenting party facts material to the decision.

This Court established in Bumper v. North Carolina

that “[w]hen a prosecutor seeks to rely upon consent to

justify the lawfulness of a search, he has the burden of

proving that the consent was, in fact, freely and voluntarily

given” and that “[t]his burden cannot be discharged by

showing no more than acquiescence to a claim of lawful

authority.” 391 U.S. 543, 548 (1968). The Court concluded

that “[w]here there is coercion there cannot be consent.”

Id. at 550. This Court reinforced the principle in Lo-Ji

Sales, Inc. v. New York, holding that “[a]ny ‘consent’ given

in the face of ‘colorably lawful coercion’ cannot validate

the illegal acts shown here.” 442 U.S. 319, 329 (1979). And

in Schneckloth v. Bustamonte, the Court established that

“whether a consent . . . was in fact ‘voluntary’ or was the

product of duress or coercion, express or implied, is a

question of fact to be determined from the totality of all

the circumstances.” 412 U.S. 218, 227 (1973).

Although Bumper arose in the Fourth Amendment

context, its principle is not so confined. The D.C. Circuit

recently confirmed that “Bumper’s holding is not limited

to situations in which a police officer misrepresents the

existence of a warrant,” but rather “requires that courts

consider if any claims of lawful authority, whether false,

ambiguous, or true, vitiated voluntary consent.” Glover v.

United States, 144 F.4th 336, 343 (D.C. Cir. 2025). Multiple

circuits have extended the Bumper/Schneckloth framework

into the employment context. The Third Circuit applied

the principle to employee drug testing, holding that “silent

submission to a[n] . . . unconstitutional search on pain of

dismissal from employment does not constitute consent

as a matter of law.” Bolden v. Se. Pa. Transp. Auth., 953

F.2d 807, 829 (3d Cir. 1991). The Eleventh Circuit held

more broadly that “[e]mployees who must submit to a

drug test or be fired are hardly acting voluntarily, free of

either express or implied duress and coercion” and that

“[s]urrendering to drug testing in order to remain eligible

for a government benefit such as employment . . . is not

the type of consent that automatically renders a search

reasonable as a matter of law.” AFSCME Council 79 v.

Scott, 717 F.3d 851, 868 (11th Cir. 2013).

Ms. Redding’s case presents the Bumper problem in

its most acute form. TSA was simultaneously processing

Ms. Redding’s disability retirement application, having

completed and submitted the Agency Certification to

OPM, J.A. 11, and it knew that accepting the FLETC

reassignment would destroy the pending retirement

benefit. TSA’s own official later admitted in writing

that Ms. Redding “was not counseled about the impact

the transfer would have on her retirement application.”

J.A. 14-15. TSA held itself out as the entity managing

the interactive process. It presented the FLETC

reassignment as a reasonable accommodation. It closed

the accommodation file upon Ms. Redding’s participation.

J.A. 12-13. At no point did TSA disclose that the

accommodation it proposed would eliminate the very

benefit Ms. Redding had separately applied for.

The Schneckloth totality-of-the-circumstances factors

reinforce this conclusion. Ms. Redding lacked knowledge

of the right she was forfeiting, not because TSA failed to

disclose the right to refuse the reassignment, but because

TSA failed to disclose the consequences of accepting

it. J.A. 11-15. The information was in TSA’s exclusive

possession. Her participation in the reassignment selection

process was, at best, what the Court in Schneckloth would

recognize as “acquiescence” to an employer’s claim of

authority, not the product of free and unconstrained

choice.

The Bumper framework gives the Rehabilitation Act’s

interactive-process obligations constitutional teeth. If the

government cannot rely on “consent” obtained through

concealment of material facts in the Fourth Amendment

context, a federal employer cannot claim it satisfied its

good-faith obligations under the Rehabilitation Act when

it guided an employee into an irreversible decision while

withholding information it exclusively possessed. The

Seventh Circuit has recognized that “when the parties are

missing information . . . that can only be provided by one

of the parties, . . . the party withholding the information

may be found to have obstructed the process.” Jackson v.

City of Chicago, 414 F.3d 806, 812 (7th Cir. 2005). The D.C.

District Court, applying the same principle, has held that

“[a] party that obstructs or delays the interactive process

is not acting in good faith” and that “a party that fails to

communicate, by way of initiation or response, may also

be acting in bad faith.” Ali v. McCarthy, 179 F. Supp. 3d

54, 75 (D.D.C. 2016).

The Fourth Circuit’s refusal to examine whether Ms.

Redding’s participation was informed, treating the fact of

participation as the end of the inquiry, conflicts with this

principle and provides an independently compelling basis

for review. The Carnevale email record reinforces this

conclusion. J.A. 14-15. After the transfer, DHS provided

TSA with two documented options for remedying the

harm. Carnevale received those options and chose to act

on neither. She then continued correspondence with OPM

without disclosing that she had completed the SF-3112D,

without acknowledging that she had never provided it to Ms.

Redding, and without pursuing the corrective measures

DHS had identified. The post-transfer concealment was

not incidental. It was a continuation of the same pattern

that preceded the transfer: TSA possessing information

material to Ms. Redding’s situation and choosing not to

use it in her interest. That pattern of conduct cannot be

characterized as the product of Ms. Redding’s free and

voluntary choice.

IV. THE UNRESOLVED DUAL-TRACK PROBLEM

IN FEDERAL EMPLOYMENT PRESENTS

A QUESTION OF RECURRING NATIONAL

IMPORTANCE.

Federal employees occupy a distinctive position

under the law. They may simultaneously pursue

disability retirement under OPM rules and reasonable

accommodation under the Rehabilitation Act. Both options

are expressly available, and both are protective. But

the intersection of those two tracks creates a recurring

problem that no court has squarely resolved.

When a federal agency participates in an employee’s

disability retirement application, it possesses information

about the interaction between that application and any

proposed accommodation. In this case, TSA did more

than merely know about the retirement application. TSA

completed the Agency Certification that was submitted

to OPM as part of the application. J.A. 11. TSA was, in

effect, a participant in both proceedings simultaneously

and knew how one affected the other. OPM’s own disability

retirement handbook, Chapter 60 of the CSRS/FERS

Handbook, requires agencies to promptly notify OPM

of any successful employee accommodation, confirming

that the two tracks are formally linked in the regulatory

framework. TSA knew the tracks were linked. It said

nothing.

This creates a structural conflict of interest. TSA

was, at the same moment, the employer offering an

accommodation and the certifying agency whose actions

would determine whether the retirement application could

proceed. No private employer ever occupies both roles.

Only a federal employer subject to both the Rehabilitation

Act and the federal retirement statutes can find itself in

this position.

Moreover, OPM’s reasonable accommodation

framework treats reassignment as an accommodation of

last resort, considered only when no other accommodation

will allow the employee to perform the essential functions

of her current position. An employer reaching that stage

of the process is not a passive participant in an employee’s

free choice. It is the moving party. It has determined

that the only remaining option is a transfer to another

agency. At that stage, the employer’s good-faith obligation

is heightened, not diminished. The employee has already

been told, in effect, that she cannot stay. Presenting

that final choice without disclosing that acceptance will

eliminate independently accrued retirement benefits is a

fundamental breach of the collaborative relationship the

statute requires.

Federal agencies that simultaneously manage

disability retirement and accommodation proceedings

carry two obligations relevant here: a duty to disclose

the interaction between the two tracks, and a duty under

OPM guidance and TSA policy to keep the accommodation

process open through completion of required training

for the reassigned position. J.A. 12-13. TSA satisfied

neither obligation. It did not disclose that accepting

the reassignment would stop the retirement track. J.A.

11-15. And it closed the accommodation process before

Ms. Redding completed the training required to be

fully qualified in the reassigned position. J.A. 12-13. As

of the filing of this petition, that training still has not

been completed. The reassignment was therefore never

evaluated for effectiveness under the standards that

governed the process.

OPM’s CSRS/FERS Handbook, Chapter 60, and TSA’s

own policy establish a concrete, documented obligation that

the accommodation process remain open until positionspecific training for the reassignment is completed. TSA

violated this requirement. Ms. Redding began at FLETC

on Sunday, May 27, 2018. The following day was Memorial

Day. May 29 was consumed by onboarding processing. May

30 consisted of introductions and facility orientation. TSA

closed the accommodation process on May 31 by email,

before a single day of substantive work had occurred.

J.A. 12-13. Where agency policy requires the process to

remain open until training is complete and effectiveness

can be assessed, premature closure is itself evidence that

the process was not conducted in good faith. The court

below never addressed this point. Its reasoning assumed

that once the reassignment took effect, the accommodation

was complete. But that assumption is precisely what the

governing framework forbids.

No court has defined what disclosure obligations arise

from that dual-track position. The Fourth Circuit had

an opportunity to do so here and declined. The result is

a doctrinal vacuum that will recur in every case where

a federal employee is simultaneously in a retirement and

accommodation proceeding. This Court should grant

certiorari to provide clear guidance on this structural

issue.

CONCLUSION

The petition for a writ of certiorari should be granted.

This petition presents a clean vehicle for resolving the

recurring and unresolved question of what the interactive

process requires when a federal employer possesses and

conceals information material to the employee’s choice.

The factual record is undisputed. TSA’s own written

admission is in the record. J.A. 14-15. The legal question

is squarely presented. The circuit conflicts are deep

and widening. And this Court’s recent decision in A.J.T.

v. Osseo Area Schools has created both the need and

the opportunity to resolve the standards question left

deliberately open. The Court should grant review.

Respectfully submitted,

Theresa Dawn Truitt Kraft

Counsel of Record

Toikka Kraft Law Group LLP

1629 K Street NW, Suite 300

Washington, DC 20006

(202) 508-3648

tkraft@tk-lawgroup.com

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

F OR T H E F OU RT H CI RCU I T,

FILED MARCH 3, 2026 . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM ORDER

OF THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF VIRGINIA, ALEXANDRIA DIVISION,

FILED FEBRUARY 5, 2024 . . . . . . . . . . . . . . . . . . 13a

Appendix

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT,

FILED MARCH 3, 2026

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 24-1141

STEPHANIE M. REDDING,

Plaintiff-Appellant,

KRISTI NOEM, SECRETARY OF HOMELAND

SECURITY, IN HER OFFICIAL CAPACITY FOR

THE DEPARTMENT OF HOMELAND SECURITY,

Defendant-Appellee.

Argued: December 9, 2025

Decided: March 3, 2026

Appeal from the United States District Court for the

Eastern District of Virginia, at Alexandria.

David J. Novak, District Judge.

(1:23-cv-01325-DJN-JFA)

Before WILKINSON, KING, and GREGORY, Circuit

Judges.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Judge King and Judge Gregory joined.

Appendix A

WILKINSON, Circuit Judge:

Plaintiff-Appellant Stephanie Redding, a former

Federal Air Marshal (“FAM”), brought suit against

the Transportation Security Administration (“TSA”)

under the Rehabilitation Act, alleging a failure to

accommodate her numerous medical conditions. But far

from neglecting its statutory duties, TSA repeatedly

engaged with Redding to identify solutions to keep her

employed within the federal government. These efforts

culminated in Redding’s transfer to the Federal Law

Enforcement Training Centers (“FLETC”)—a position

she self-selected for reassignment.

Redding now claims that TSA should have kept her

permanently in the temporary “light duty” position she

held when reassignment became necessary. The district

court dismissed this suit on the basis that Redding had

not adequately pled that she was a “qualified individual”

capable of performing her desired job’s essential functions.

A nd indeed, both because Redding conceded this

inability and because TSA already provided reasonable

accommodations, we now affirm.

We hear this case on a Rule 12(b)(6) motion to dismiss

and therefore take the well-pleaded facts in Redding’s

complaint as true; we “do not consider evidence beyond

that pleading.” Stanley v. City of Sanford, 606 U.S. 46,

145 S. Ct. 2058, 2062, 222 L.Ed.2d 331 (2025). The facts

pled are as follows.

Appendix A

For over seven years, Redding worked as a FAM

within the Federal Air Marshal Services (“FAMS”)

division of TSA. When she was originally hired in 2011,

Redding provided TSA with documentation of her

“Degenerative Progressive Myopia (Severe Myopia) and

Keratoconjunctivitis Sicca (Chronic Dry Eyes),” noting

that “her uncorrected vision was poor.” J.A. 8. But, after

a preemployment medical examination, TSA determined

that Redding could perform the duties of a FAM.

During the course of employment, Redding developed

a number of other medical conditions, including cardiac

issues, borderline pulmonary hypertension, hypoglycemia,

and a type of chronic muscle and nerve pain. This

worsening led TSA to place Redding on extended periods

of “temporary ‘light duty’ status,” during which she

was “restricted from performing the normal duties as

an FAM.” J.A. 8. And, from March 2016 to May 2018,

Redding served as a Regional Coordinator in the Aviation

Programs Branch—a “ground-based” assignment that

“required [her] to fly in ‘mission status’ only once per

month,” substantially less than a typical FAM. J.A. 8-9.

A sizable portion of this tenure was formally considered

“light duty.” J.A. 8; see Oral Arg. at 17:18-17:26.

In April 2017, Redding completed a TSA-mandated

biannual physical examination and provided various

supplemental medical information to the agency’s medical

examiner. Later that summer, TSA informed Redding of

“concerns that her uncorrected vision no longer met the

requirements for duty.” J.A. 9. And, in January 2018, the

agency sent her a formal memorandum with the subject

Appendix A

line, “Inability to Perform Essential Duties of Your

Position/Inability to Meet FAMS Medical Standards.”1

J.A. 11, 319. The memorandum notified Redding that her

medical evaluation results could result in termination

from her position and accordingly recommended that she

seek reassignment to a different position within TSA or

another federal agency.

Redding took this recommendation in stride and

submitted a request for accommodation, seeking

reassignment to a “retirement position not affected by

medical restrictions.” J.A. 11. Notably, in her request,

she acknowledged her “inability to perform the essential

duties of [her] current position.” J.A. 11. Shortly thereafter,

the agency informed Redding that there were no vacant

TSA positions that could accommodate her. So Redding

identified two potential vacancies in FLETC—a division

of the Department of Homeland Security distinct from

TSA. J.A. 12.

Her reassignment to FLETC as a Law Enforcement

Specialist was granted on May 27, 2018, and TSA closed

her accommodation case several days later. After this

time, Redding began to experience “difficulty with the

conditions of the assignment to FLETC,” in part due to

“a new condition that would require surgery,” and “began

having conversations with [FLETC] personnel regarding

1. While the complaint itself does not detail exactly which

essential duties Redding could not perform, the parties both

appear to agree that the complaint is inherently referring, at least

in part, to Redding’s inability to meet TSA’s standards for flight

missions. See Oral Arg. at 06:41-07:02, 16:16-16:22.

Appendix A

how to request reconsideration of the reassignment as an

accommodation.” J.A. 13. In July 2019, Redding contacted

the TSA accommodation office, which advised that it could

not assist her as she was no longer a TSA employee. J.A.

12-14.

In July 2022, Redding filed a complaint putting forth

a failure-to-accommodate, disability-discrimination claim

under the Rehabilitation Act. The district court dismissed

the complaint for failure to state a claim, determining that

Redding had failed to “plausibly ple[a]d that she [wa]s a

qualified individual.” J.A. 459. Redding timely appealed.

II.

The Rehabilitation Act and its cousin, the Americans

with Disabilities Act (“ADA”), set precise standards

governing when, for whom, and what accommodations are

appropriate. Generally speaking, the Rehabilitation Act

protects a “qualified individual with a disability” from,

“solely by reason of her or his disability, be[ing] excluded

from the participation in, be[ing] denied the benefits of, or

be[ing] subjected to discrimination . . . under any program

or activity conducted by any Executive agency.” 29 U.S.C.

§ 794(a). And, by its very terms, the Rehabilitation Act

adopts the standards set forth in Title I of the ADA. Id.

§ 794(d).

Not all individuals with disabilities are entitled to

reasonable accommodations under this system. Indeed,

a “qualified individual” is only one who, “with or without

reasonable accommodation, can perform the essential

Appendix A

functions of the employment position that such individual

holds or desires.” 42 U.S.C. § 12111(8) (emphasis added).

Indeed, a pilot’s reasonable accommodation could not

be that they never fly a plane, nor could a deep-sea

fisherman’s reasonable accommodation be that they never

go out on the water. Activities that are so “fundamental”

to the job are nonnegotiable. 29 C.F.R. § 1630.2(n)(1). A

reasonable accommodation can help an employee fulfill a

core responsibility that she could not do otherwise, but it

cannot eliminate the duty completely.

It is not the province of employees or this court to

prescribe the “essential functions” of an agency job. To

allow such intrusion would spread confusion in federal

employment. Job descriptions would become constantly

mutable, subject to extreme variation from the actual

intentions and goals of the employer. It is thus the

expertise and judgment of the employer that ultimately

merit “considerable deference.” Elledge v. Lowe’s Home

Ctrs., LLC, 979 F.3d 1004, 1009 (4th Cir. 2020) (internal

quotation marks omitted) (quoting D’Amico v. City of

New York, 132 F.3d 145, 151 (2d Cir. 1998)). Employers

are intimately aware of the day-to-day work environment

and how each employee fits into the mosaic of the agency’s

overall mission, objectives, and responsibilities. We lack

the necessary expertise to second-guess such informed

business judgments. See, e.g., id.; Lloyd v. Swifty Transp.,

Inc., 552 F.3d 594, 601 (7th Cir. 2009); Mason v. Avaya

Commc’ns, Inc., 357 F.3d 1114, 1119 (10th Cir. 2004).

Our review is instead limited to determining whether a

function “bear[s] more than a marginal relationship to the

job at issue,” and, even then, we give great “consideration

Appendix A

. . . to the employer’s judgment.” Tyndall v. Nat’l Educ.

Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994)

(quoting Chandler v. City of Dallas, 2 F.3d 1385, 139394 (5th Cir. 1993)); 42 U.S.C. § 12111(8); see also 29 C.F.R.

§ 1630.2(n)(1), (3)(i).

Even if that an employee is a “qualified individual”

able to perform a job’s essential functions with reasonable

accommodations, the employee may not unilaterally dictate

the terms of those accommodations. Determining what

accommodations are reasonable involves an “informal,

interactive process” between the employer and “the

individual with a disability in need of the accommodation.”

29 C.F.R. § 1630.2(o)(3). Such good-faith collaboration may

result in various “modifications or adjustments to the

work environment, or to the manner or circumstances

under which the position held or desired is customarily

performed.” Id. § 1630.2(o)(1)(ii). And it is the employer

who has the “ultimate discretion” to “reduc[e] this wide

solution-space to a concrete accommodation.” Elledge,

979 F.3d at 1011 (quoting 29 C.F.R. pt. 1630 app. § 1630.9

(2020)). The whole process is one that contemplates some

give and take among the parties, some mutual recognition

that the perfect may be the enemy of the good.

III.

We review the district court’s dismissal de novo and

view the well-pleaded facts in the complaint as true. Basta

v. Novant Health Inc., 56 F.4th 307, 318 (4th Cir. 2022).

To “survive” a Rule 12(b)(6) dismissal, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state

Appendix A

a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Redding’s

complaint fails this test: it reveals both that she is not a

qualified individual for her desired Regional Coordinator

position and that TSA did in fact provide reasonable

accommodations.

For starters, Redding admits in her complaint that

“reassignment was requested due to the inability to

perform the essential duties of [her] current [Regional

Coordinator] position.” J.A. 11 (emphasis added). This

admission is a damaging one. See Cleveland v. Pol’y Mgmt.

Sys. Corp., 526 U.S. 795, 806, 119 S.Ct. 1597, 143 L.Ed.2d

966 (1999) (“[A] plaintiff’s sworn assertion in an application

for disability benefits that she is, for example, ‘unable to

work’ will appear to negate an essential element of her

ADA case. . . .”); accord. Stanley, 145 S. Ct. at 2065.

Redding’s principal argument on appeal is that TSA

should have permanently reassigned her to the Regional

Coordinator position. See Oral Arg. at 11:50-12:03. But

TSA cannot be required to do so when Redding concedes

an inability to fulfill the necessary responsibilities of that

exact position even with existing accommodations. Even

Regional Coordinators in the Federal Air Marshal Service

are required to be “mission ready” to perform regular

flight duties, as Redding acknowledges. Id. at 18:05-18:20;

J.A. 9. This was a function that due to her deteriorating

Appendix A

medical conditions, including poor eyesight, Redding was

unfortunately unable to perform. Oral Arg. at 17:40-18:04;

J.A. 8-9, 11. TSA rightly assessed that no adjustments

would permit Redding to perform the critical duties of

this role—a point which Redding’s complaint does not

appear to contest. See J.A. 11-12 (“There is no paperwork

suggesting that [the Regional Coordinator] position, with

or without accommodations, would be an appropriate

alternative to her position as an FAM.”). Put simply,

Redding essentially pleads that she is not a “qualified

individual” for the permanent Regional Coordinator job

that she seeks, and thus her failure-to-accommodate claim

fails on its own terms.

Even assuming arguendo that Redding could

perform the essential duties of a normal FA M or

Regional Coordinator, TSA already provided reasonable

accommodations by reassigning her to FLETC. Redding

claims on appeal that the FLETC reassignment was

unreasonable because she experienced difficulties in

that role, and because TSA could have kept her in the

Regional Coordinator role permanently, even if she could

not perform flight missions. See Oral Arg. at 03:20-04:22,

11:50-12:03; Opening Br. at 15-16.

Redding wrongly assumes, however, that she can

dictate the core responsibilities of her desired job. As

aforementioned, “the decision about a position’s essential

functions belongs, in the first instance, to the employer.”

Elledge, 979 F.3d at 1009. Such deference is especially

10a

Appendix A

important when employees act, as here, within lawenforcement and national-security enterprises. Agencies

in these fields must ensure that their employees remain

mission ready at a moment’s notice. Significant interference

with the agency’s ability to dictate what baseline criteria

an employee must meet could have adverse effects on our

government’s response to critical emergencies. Indeed,

FAMS’s role would be materially diminished if law forbade

it from requiring that employees execute airborne lawenforcement activities. “Air” is literally in the agency’s

name.

Considering its discretion in this sphere, TSA has been

measured and reasonable in applying its understanding

of the essential-functions standard to Redding. First, it

determined that Redding could not perform the essential

responsibilities of a normal FAM and thus put her on

temporary “light duty” status with more limited essential

functions. Then, when she could no longer perform even

those adjusted duties, the agency looked to see if Redding

could perform the essential functions of any other vacant

positions within FAMS or TSA. When it determined

that she could not, TSA finally began collaborating with

Redding on reassignment to another federal agency.

This progression is wholly consistent with our caselaw

and the Equal Employment Opportunity Commission’s

guidance that reassignment be a measure of “last

resort,” required only when “(1) there are no effective

accommodations that will enable the employee to perform

the essential functions of his/her current position, or (2) all

other reasonable accommodations would impose an undue

11a

Appendix A

hardship [on the employer].” Wirtes v. City of Newport

News, 996 F.3d 234, 240-41 (4th Cir. 2021) (alteration in

original) (emphasis omitted) (quoting EEOC, Enforcement

Guidance: Reasonable Accommodation and Undue

Hardship Under the Americans with Disabilities Act,

No. 915.022, 2002 WL 31994335, at *20 (Oct. 17, 2002));