Amicus Curiae Brief — Cleveland v. Policy Management Systems Corp.

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No. 97-1008 | DEC 3 Wyo

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1997

CAROLYN C. CLEVELAND,

Petitioner,

POLICY MANAGEMENT SYSTEMS CORP., et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF AMICI CURIAE OF THE

NATIONAL EMPLOYMENT LAWYERS

ASSOCIATION AND THE ASSOCIATION

OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF PETITIONER

PAULA A. BRANTNER ALAN B. EPSTEIN

Senior Staff Attorney Counsel of Record

NATIONAL EMPLOYMENT JABLON EPSTEIN,

LAWYERS ASSOCIATION A Professional Association

600 Harrison Street Ninth Floor, The Bellevue

Suite 535 Broad Street at Walnut

San Francisco, CA 94107 Philadelphia, PA 19102

(415) 227-4655 (215) 790-0300

Attorneys for Amici Curiae

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION and

THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA

Midwest Law Printing Co., Chicago 60610, (312) 321-0220

QUESTIONS PRESENTED

1. Whether the application for, or receipt of, dis-

ability insurance benefits under the Social Security Act,

42 U.S.C. § 423, creates a rebuttable presumption that

the applicant or recipient is judicially estopped from

asserting that she is a “qualified individual with a

disability” under the Americans with Disabilities Act of

1990, 42 U.S.C. § 12101 et seq.?

2. If it does not create such a presumption, what

weight, if any, should be given to the application for, or

receipt of, disability insurance benefits when a person

asserts that she is a “qualified individual with a disabil-

ity” under the ADA?

TABLE OF CONTENTS

PAGE

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

TABLE OF AUTTRIORITINS ok cance cian iv

INTEREST OF AMICI CURIAE .............. 1

SUMMARY OF THE ARGUMENT ............ 3

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

ARGUMENT ..csceedesusae sat eee 7

I. JUDICIAL ESTOPPEL IS AN ARCHAIC

AND PERNICIOUS DOCTRINE WHICH

VIOLATES STANDARDS OF FAIRNESS

AND IS CONTRARY TO EXISTING

RULES OF PROCEDURE .............. 7

A. The Judicial Estoppel Doctrine’s His-

tory Reveals Conflict and Confusion ... 7

B. The Judicial Estoppel Doctrine Is

Incompatible with the Rules of

Civil Procedure Governing Summa-

ry Judgment and Alternative Plead-

POOP Pree eee. vie eee 14

1. Credibility Determinations and

Summary Disposition .......... 14

2. The Right to Make Alternative

RUM . ws 664s baeeeee 15

iii

ll. THE JUDICIAL ESTOPPEL DOCTRINE

VIOLATES DUE PROCESS ............ 16

Il. IN THE CONTEXT OF DISABILITY

CLAIMS, THE APPLICATION OF THE

JUDICIAL ESTOPPEL DOCTRINE DE-

NIES FUNDAMENTAL FAIRNESS AND

DUE PROCESS TO SERIOUSLY IN-

JURED AMERICANS GRANTED PRO-

TECTION UNDER THE ADA .......... 17

IV. OTHER EXISTING REMEDIES ARE

ADEQUATE TO PROTECT LITIGANTS,

THE COURTS, AND OUR SYSTEM OF

JUSTICE FROM ABUSE .............. 22

Dt Seteiaucercesteecbeccceses 26

TABLE OF AUTHORITIES

Cases: PAGE

Alexander v. Gardner-Denver Co..,

Ge ee ED a bins eben ohibeeaneas

Allen v. Allen, 550 P.2d 1137 (Wyo. 1976) ......

Anderson v. Liberty Lobby, Inc.,

Gee WA. SE GED 0 cb ce eccccdawd sec 14

Astor Chauffeured Limousine v. Runnfeldt

Investment Corp., 910 F.2d 1540

oR RR IE ae Sea 12

Astoria Federal S & L Ass’n v. Solimino,

OSS Ge DP o Badew eed £0 cwedbe ett 21

Brown v. Felsen, 442 U.S. 127 (1979) ..... 8, 10, 21

Brown v. Gerstein, 17 Mass. App. Ct. 558,

GED Fede CED he's ccccedecvewees 11

Burlington Industries v. Ellerth,

ene, ies CE ee ET GE . cic wesses 1

Chrysler Credit Corp. v. Country Chrysler,

Inc., 928 F.2d 1509 (10th Cir. 1991) ....... 12

Cleveland v. Policy Management Systems

Corp., 120 F.3d 513 (5th Cir. 1997) ......... 6

Dockery v. North Shore Med. Ctr.,

909 F.Supp. 1550 (S.D. Fla. 1995) ..... 9, 13, 25

Doyle v. State Farm Insurance Co.,

414 So.2d 763 (La. 1982) ..............4..

Dugan v. EMS Helicopters, Inc.,

915 F.2d 1428 (10th Cir. 1990) ........... 16

Edwards v. Aetna Life Ins. Co.,

690 F.2d 595 (6th Cir. 1982) .......... 12, 13

Ellis v. Arkansas La. Gas Co.,

609 F.2d 436 (10th Cir. 1979) ............. 8

Estes v. Texas, 381 U.S. 532 (1965)........... 10

Faragher v. City of Boca Raton,

eee, Wie anne BOB BGR. SETS CRBS nc cc ccces 1

Hamilton v. Zimmerman, 37 Tenn.

ON RE ee ee ee 10

Jackson Jordan, Inc. v. Plasser American

Corp., 747 F.2d 1567 (Fed. Cir. 1984) ...... 13

Kapche v. City of San Antonio,

No. 98-50345 (5th Cir. 1998) ............4.. 1

Konstantinidis v. Chen, 626 F.2d 933

i CE ae, eee es be « 8, 9, 12, 13

Long v. Knox, 155 Tex. 581,

DPD cecvnagddecestovbies 1l

MacFarlane v. Manly, 274 S.C. 392,

264 S.E.2d 838 (1980) .........22 eee eues 11

Maitland v. University of Minnesota,

43 F.3d 357 (8th Cir. 1994) .............. 13

Manuel v. Westlake Polymers Corp.,

66 F.3d 758 (Sth Cir. 1995) ............... 1

McKennon v. Nashville Banner Publishing

Co., 513 U.S. __, 115 S.Ct. 879 (1995) .. 21, 22

McNemar v. Disney Stores, Inc.,

91 F.3d 610 (3d Cir. 1996),

cert. denied, 117 S.Ct. 958 (1997) ........ 1,9

Nichols v. Scott, 69 F.3d 1255

Gees Gt, Ge - 6 6 ald wo obs Ca cece ecadan 14

Nix v. Williams, 467 U.S. 431 (1984) .......... 10

Oncale v. Sundowner Offshore Services Inc.,

ces WEE ee ET ED 6 oes heen es 1

Oubre v. Entergy Operations, Inc.,

cies GOCE canes Es ED on csteane 1

Panama Processes, S.A. v. Cities Serv. Co.,

796 P.2d 276 (Okla. 1990) ............... 16

Parkinson v. California Company,

233 F.2d 432 (10th Cir. 1956) ..... 9, 12, 15, 25

Parklane Hosiery Co., Inc. v. Shore,

Gap See GED» ccandtehenancneoue 8,17

Patriot Cinemas, Inc. v. General Cinema

Corp., 834 F.2d 208 (1st Cir. 1987) ........ 14

Perma Life Mufflers, Inc. v. Intern. Parts

Corp., 392 U.S. 134 (1968) ............... 21

Vii

Ray v. Midfield Park, Inc., 289 Ala. 137,

ee CUED haat ebEwW ek oe Cowdec 11

Reigel v. Kaiser Found. Health Plan of

North Carolina, 859 F.Supp. 963

SEE oo 60606 bRbReebs obec cass i)

Rissetto v. Plumbers and Steamfitters

Local 343, 94 F.3d 597 (9th Cir. 1996) .. 8, 9, 13

Ryan Operations GP v. Santiam-Midwest

Lumber Co., 81 F.3d 355 (3d Cir. 1996) ..... 12

Scarano v. Central R. Co.,

208 F.2d 610 (3d Cir. 19563) ............42:. i)

Sedlack v. Braswell Services Group, Inc.,

134 F.3d 219 (4th Cir. 1998) ............. 12

Shattuck v. Kinetic Concepts, Inc.,

49 F.3d 1106 (5th Cir. 1995) .............. 1

Teledyne Indus., Inc. v. NLRB,

911 F.2d 1214 (6th Cir. 1990) ......... 12, 25

U.S. v. Beechum, 582 F.2d 898

et eee bem d cdeeevade 10

U.S. v. Kattar, 840 F.2d 118

ee oe aay eae 6 SS 14

U.S. for Use of American Bank v. CIT

Const. Inc. of Texas, 944 F.2d 253

ee eo he eee ene ee teet 12

se ; ix

United Mine Workers of America 1974 Rule 60(b), Federal Rules of Civil Procedure .... 25

Pension v. Pittston Co., 984 F.2d 469

ey EE oa eweb dws bbewae van vou 12 Rule 613, Federal Rules of Evidence .......... 25

University of Tennessee v. Elliott, Rule 801(d\(1)-(2), Federal Rules of Evidence ... 25

ey 20, 21

Miscellaneous:

Young v. U.S. Dept. of Justice,

882 F.2d 633 a eee a

COS COE Ci. SOE - Anne E. Beaumont, Note, This Estoppel

Has Got to Stop: Judicial Estoppel and

ee ~ 71 N.Y.U. L. Rev. 1529 (1996) ............ 19

U.S.C.A. C , i; ee Oba twos oud eS

onst. Amend. 7 16 Frank Bowe, Handicapping America:

Barriers to Disabled People (1978) ......... 18

Statutes:

— Rand G. Boyers, Comment-Precluding

MOO ROR occ ceeds tice ce luusast Inconsistent Statements: The Doctrine

ae. 6 oe =, & of Judicial Estoppel, 80 Nw. U. L. Rev.

MURS... RAR Bs 1244 (1906)... - 0. esses eeeeees 6, 16, 17, 26

; Robert L. Burgdorf, Jr., The Americans

GB DE © Be onc oh RE Med & oOs co EH ERE EOS i, 6 with Disabilities Act: Analysis and

Implications of a Second Generation

Ge Bs 6 Se a 6 ow une un ebs ei beens 18 Civil Rights Statute, 26 Harv. C.R.-C.L.L.

Tex. Lab. Code Ann. § 451.001 (Vernon 1996) Si 6 Rev. 413 (1991) Pweweeseeeeeeerwe 8 eee €e¢ 6 6 8 8 18

Timony M. Cook, The Americans with

a Disabilities Act: The Move to Integration,

64 Temp. L. Rev. 393 (1991) ............. 18

Rule 8(e)(2), Federal Rules of : , at Ae ae ici

Ciel FURR ook o'r ds w EN kde ho SUES 15, 16 : Matthew Diller, Dissonant Disability Policies:

| The Tensions Between the Americans with

Disabilities Act and Federal Disability

Benefit Programs, 76 Tex. L. Rev. 1003

ET oh Gb 666 650.006 Ova bed enene 20

ewe

Jonathan C. Drummer, Comment, Cripples,

Overcomers, and Civil Rights: Tracing

the Evolution of Federal Legislation and

Social Policy for People with Disabilities,

40 UCLA L. Rev. 1341 (1993) ......... 17, 18

Alan Gartner and Tom Joe, Images of the

Disabled, Disabling Images, Introduction,

Edward Gellen, Disabled Concern: The

Social Context of the Work-Disability

Problem, 67 Millbank Q. 114 (1989)........ 18

Douglas W. Henkin, Judicial Estoppel-

Beating Shields into Swords and

Back Again, 139 U. Pa. L. Rev. 1711

fa errata)" 8, 9, 10, 11, 12, 23

Note, The Doctrine of Preclusion Against

Inconsistent Positions in Judicial

Proceedings, 59 Harv. L. Rev. 1132

2 Re ee) hee eer: ee 13, 25

Mark J. Plumer, Judicial Estoppel:

The Refurbishing of a Judicial Shield,

55 Geo. Wash. L. Rev. 409 (1987) ....... 8, 13

Wendy Wilkerson, Judicially Crafted

Barriers to Bringing Suit Under the

Americans with Disabilities Act,

38 S. Tex. L. Rev. 907 (1997) ............. 19

22 Mental and Physical Disability Law

Reporter 403 (1998) ..........0e008. 23, 24

INTEREST OF AMICI CURIAE

The National Employment Lawyers Association

(NELA) is a voluntary membership organization of over

3,000 lawyers who regularly represent employees in

labor, employment, and civil rights disputes.’ NELA is

one of the largest organizations in the United States

whose members litigate and counsel employees and

applicants for employment on claims arising in the

workplace. As part of its advocacy efforts, NELA has

filed numerous amicus curiae briefs on employment law

and civil rights issues. Some recent cases before this

Court and other courts are: Faragher v. City of Boca

Raton, __ U.S. __, 118 S.Ct. 2275 (1998); Burlington

Industries v. Ellerth, _. U.S. __, 118 S.Ct. 2257

(1998); Oncale v. Sundowner Offshore Services Inc., ___

U.S. __, 118 S.Ct. 998 (1998); Oubre v. Entergy Opera-

tions, Inc., __. U.S. ___, 117 S.Ct. 1466 (1997); Kapche

v. City of San Antonio, No. 98-50345 (5th Cir. 1998);

McNemar v. The Disney Stores, Inc., 91 F.3d 610 (3d

Cir. 1996), cert. denied, 117 S.Ct. 958 (1997); Manuel v.

Westlake Polymers Corp., 66 F.3d 758 (5th Cir. 1995);

and Shattuck v. Kinetic Concepts, Inc., 49 F.3d 1106

(5th Cir. 1995).

NELA members have brought numerous cases under

the Americans with Disabilities Act. NELA members

have also represented thousands of individuals in this

‘ The parties have consented to the filing of this brief; this

consent has been filed with the Clerk of the Court. No part of

the attached brief has been authored by counsel for either

party or any other entity. No persons other than the Amici

Curiae, its members or its counsel made a monetary contri-

bution to the preparation and submission of this brief.

country who are victims of employment discrimination

based on disability status. One of the primary purposes

of NELA is to represent, protect, and defend the inter-

ests of employees involved in workplace disputes, in-

cluding workers who are involved in litigation under the

ADA.

This case represents an opportunity to address the

inconsistent and inherently unfair application of the

judicial estoppel doctrine, which has operated to pre-

clude many potential plaintiffs from successfully litigat-

ing their claims of disability discrimination under the

ADA. NELA submits this brief to urge the Court to

abandon the use of judicial estoppel doctrine in cases

under the ADA. In so doing, NELA seeks to protect the

interests of its members and their clients, by helping to

ensure that the goal of the Americans with Disabilities

Act is fully realized.

The Association of Trial Lawyers of America (ATLA)

is a voluntary national bar association of approximately

50,000 members across the country. ATLA members pri-

marily represent plaintiffs in personal injury suits, civil

rights actions and employment discrimination cases. For

over 50 years, ATLA’s mission has been to preserve the

right to trial by jury in civil cases guaranteed by the

Seventh Amendment. In addition, ATLA has been a

staunch supporter of the Americans with Disabilities

Act, and ATLA members have represented plaintiffs

seeking vindication of their rights under the Act

through civil actions.

SUMMARY OF THE ARGUMENT

The use of judicial estoppel against ADA claimants

who have applied for or received disability benefits is a

devastating new use for this obscure, amorphous, and

previously rarely used doctrine. In recent years, it has

been a favorite defensive weapon used by employers in

ADA cases where the wronged employee or job seeker

has applied for or received disability benefits. Increas-

ingly, it is being used by courts to deprive persons with

disabilities of the opportunity to be heard as an equita-

ble sanction against perceived inconsistency.

Amici suggest that judicial estoppel is a pernicious

doctrine that deprives persons with disabilities of the

intended protections of the ADA, and violates the right

of a qualified individual to his or her Seventh Amend-

ment right to a jury trial. More importantly, the pro-

fessed concerns of courts employing this antiquated and

unnecessary doctrine are better served by application of

our modern rules of procedure, including those gov-

erning alternative pleading, summary judgment, and the

imposition of sanctions for the assertion of frivolous

claims.

On behalf of the 54 million Americans who report

some form of physical or mental disability,’ and in com-

pliance with the clear intent of Congress when it passed

the ADA on July 26, 1990, Amici propose that the harsh

* The United States Department of Commerce in its press re-

lease of September 16, 1997 stated that between October, 1994

and January, 1995, a imately 54 million Americans (one

in every five) repo some level of disability, and 26 million

ee (one in every ten) reported their level of disability

to be severe.

and unjust results often caused by the doctrine’s appli-

cation could be avoided, by abandoning its use in favor

of other mechanisms better calculated to seek truth and

civil justice.

Indeed, this position is well-supported by the following

discussion of the origins and history of this inequitable

doctrine, the unduly punitive effect on the right of a

person with a disability to be heard under the provi-

sions of an important civil rights law, and the facile

correction of any claimant’s improper action by using

existing civil rules and mechanisms.

STATEMENT OF THE CASE

On January 7, 1994, Carolyn C. Cleveland (“Cleve-

land”) suffered a stroke in the course of her employment

with the Policy Management Systems Corporation

(“PMSC”). As a result, she was afflicted with aphasia, a

disorder affecting the processing of language (including

speaking and reading), concentration, and memory.

On January 26, 1994, she signed an application (pre-

pared by her daughter on her behalf) for Social Security

disability benefits, certifying in the standard language

of the Social Security Administration’s (“SSA”) comput-

er-generated application forms that she “became unable

to work because of my disabling condition on January 7,

1994” and that “I am still disabled.”

° Cleveland avers that she has no recollection of signing or fil-

ing the application.

As the result of intensive rehabilitative efforts, Cleve-

land returned to work on April 11, 1994* and advised

the SSA’s local agency, the Texas Rehabilitation Com-

mission, that she no longer needed disability benefits.

On July 11, 1994, the SSA officially denied her request

for benefits.

Four days later, on July 15, 1994, Cleveland was ter-

minated from her employment with PMSC. This event

caused her to become depressed and exacerbated her

aphasia to the extent that on September i4, 1998, she

decided to renew her application for disability benefits

by requesting the reconsideration of the earlier denial.

Once again, she signed an SSA computerized form

which stated that she was terminated “because I could

no longer do the job because of my condition” and that

she was “still disabled.”

In January, 1995, Cleveland renewed her request for

reconsideration of the denial of benefits and in May,

1995, she requested a hearing on the basis that in the

language provided in the form, she was “unable to work

due to my disability.” In September, 1995, Cleveland

was awarded disability benefits retroactively to January

7, 1994.

One week before the SSA’s decision was published,

Cleveland filed an action against PMSC for failing to

accommodate her condition and terminating her because

she was a person with a disability, all in violation of

* Following her return to work, Cleveland had problems car-

rying out her duties and requested accommodations (inter alia,

computer training, permission to take work home, and trans-

fer) which were denied by PMSC.

the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12101 et seq. and the applicable Texas statute.’

PMSC moved for summary judgment asserting that

Cleveland could not establish that she was a “qualified

individual with a disability,” an essential element of her

claim. In response, Cleveland averred in a sworn affi-

davit that she was unable to do her job because she was

denied reasonable accommodation, and that her condi-

tion was worsened by her termination. She also prof-

fered the opinion of her treating physician, who agreed

that her discharge increased her symptoms to the point

of disability, and that if she had been granted appropri-

ate accommodation on the job, she would have been able

to continue to work.

The district court granted the motion for summary

judgment filed by PMSC and, on appeal, the United

States Court of Appeals for the Fifth Circuit affirmed.®

In making its decision, the Fifth Circuit refused to

“adopt a per se rule that automatically and absolutely

prevents an applicant for or recipient of social security

disability benefits from asserting a claim of disability

discrimination under the ADA” but held that since

there may “conceivably” be “credible, admissible evi-

dence . . . sufficient to show that, even though he may

be disabled for purposes of social security, he is other-

wise qualified to perform the essential functions of his

job with a reasonable accommodation and thus not

® Tex. Lab. Code Ann. § 451.001 (Vernon 1996).

® Cleveland v. Policy Management Systems Corp., 120 F.3d

513 (5th Cir. 1997).

* Td. at 517.

estopped from asserting an ADA claim,” and that an

“application for or the receipt of social security disability

benefits creates a rebuttable presumption that the

claimant or recipient of such benefits is judicially

estopped from asserting that he is a ‘qualified individual

with a disability.’”

The Fifth Circuit then resolved that since Cleveland’s

“sworn statements to the SSA that she was disabled”

were continuous and unequivocal, she could not be per-

mitted to contradict that position before the district

court and therefore, was “judicially estopped from now

asserting that for the time in question she was never-

theless ‘a qualified individual with a disability’ for pur-

poses of her ADA claim.””°

ARGUMENT

I, JUDICIAL ESTOPPEL IS AN ARCHAIC AND PER-

NICIOUS DOCTRINE WHICH VIOLATES STAND-

ARDS OF FAIRNESS AND IS CONTRARY TO

EXISTING RULES OF PROCEDURE.

A. The Judicial Estoppel Doctrine’s History Re-

veals Conflict and Confusion."

® Id. at 518.

* Id. at 518.

"' Other forms of more easily justifiable estoppel have been,

and continue to be, employed in federal litigation:

Equitable estoppel is designed to protect ies who have

also been parties in a previous suit from prejudice that

would occur as a result of detrimental reliance on a previously

(continued...)

Judicial estoppel, which alternatively has been labeled

as the doctrine against inconsistent positions or estoppel

by oath,” is a concept based in equity jurisdiction that

has been invoked by the courts (as opposed to the

parties) for the avowed purpose of preventing litigants

from gaining a litigation advantage by asserting incom-

patible positions in different proceedings.”

The doctrine was developed in the mid-1800s in an era

before the promulgation of modern pleading rules (in-

cluding the Federal Rules of Civil Procedure) to promote

the broad public policy objectives of protecting the in-

“ (...continued)

asserted position. Konstantinidis v. Chen, 626 F.2d 933, 937

(D.C. Cir. 1980).

Collateral estoppel (often called issue preclusion) serves to

prevent litigants from relitigating identical issues. Parklane

Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 (1979).

The doctrine of res judicata (claim preclusion) applies only

when there is an identity of the parties in both suits. It is cal-

culated to ensure that litigants rely on previous court rulings.

Brown v. Felsen, 442 U.S. 127, 131 (1979).

"® See Rissetto v. Plumbers and Steamfitters Local 343, 94

F.3d 597 (9th Cir. 1996); Ellis v. Arkansas La. Gas Co., 609

F.2d 436, 440-41 (10th Cir. 1979); Douglas W. Henkin, Judicial

l-Beating Shields into Swords and Back 139 U.

Pa. L. Rev. 1711 n.1 (1991); Mark J. Plumer, ~% 1

pel: The Rejurbishing of a Tudicial Shield, 66 Geo Wash

hon 409, 410 n.8 (1987); Rand G. Boyers, Comment-Preclud-

ing Inconsistent Statements: The Doctrine of Judicial Estop-

pel, 80 Nw. Univ. L. Rev. 1244 (1986).

'S The doctrine is clearly distinct from the other forms of

per ry ne tian at ayes pg collateral estop-

and res or claim

'Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979). See

n.11.

tegrity of the judicial system and upholding the sanctity

of the oath. Its aim was to prevent a litigant from “play-

ing fast and loose with the courts” or to bar a party

from “speaking out of both sides of her mouth with

equal vigor and credibility.” Unfortunately, as recog-

nized by both the Tenth Circuit” and D.C. Circuit

Courts of Appeal,"’ the doctrine also prevents a party

from explaining a perceived inconsistency and may “im-

pede the truth seeking purpose of the judicial system, as

its use will more often than not result in a litigant’s

entire case being thrown out.”

In fact, conflicting assertions may not be actual in-

consistencies, but merely reflections of changed cir-

cumstances. In the context of the ADA, a claimant like

Ms. Cleveland, who asserts an ability to work after

filing a claim of total disability, presenting contrary

averments may not be “playing fast and loose” with the

truth, but may only constitute a reflection of a later

change in physical ability. A court employing the doc-

trine of judicial estoppel is, however, only required to

“* McNemar v. Disney Stores, Inc., 91 F.3d 610, 617, 618 (3d

Cir. 1996), cert. denied, 117 S.Ct. 958 (1997); Scarano v. Cen-

tral R. Co., 203 F.2d 510, 513 (3d Cir. 1953).

* Reigel v. Kaiser Found. Health Plan of North Carolina, 859

F.Supp. 963, 970 (E.D. N.C. 1994). See Rissetto v. Plumb-

ers and Steamfitters Local 343, supra, and Dockery v. North

Shore Med. Ctr., 909 F.Supp. 1550 (S.D. Fla. 1995).

spent & Culfients Ganpanp, 298 8.28 488 G8 Ce.

1956).

" Konstantinidis v. Chen, 626 F.2d 933 (D.C. Cir. 1980).

** Douglas W. Hanken, Judicial Estoppel - Beating Shields

Into Swords and Back Again, supra.

review the facial consistency of the alleged untruthful

prior assertions and not the facts behind them, and

therefore, would thus be unable to exercise its truth-

seeking function. Our courts generally have recognized

the danger of taking a doctrinaire approach in the

search for the truth in any case, because “truth is the

essential objective of our adversary system of justice.”

U.S. v. Beechum, 582 F.2d 898 (5th Cir. 1978). This

Court has refused to accord a collateral estoppel effect

when the result would be to prevent the “fullest possible

inquiry” into the evidence, Brown v. Felson, 442 U.S. at

138 (1979), and to “blockade unexplored paths that may

lead to truth.” Jd. at 132. See also Estes v. Texas, 381

U.S. 532, 540 (1965) (discovering truth is the “sine qua

non of a fair trial”) and Nix v. Williams, 467 U.S. 431,

445 (1984) (our legal system exalts “the search for truth

in the administration of justice”).

The doctrine has never been uniformly defined or

adopted by either state or federal courts, nor has it ever

been the subject of an explicit ruling by this Court. The

first appearance of the doctrine was in the 1857 Tennes-

see Supreme Court case of Hamilton v. Zimmerman, 37

Tenn. (5 Sneed) 39 (1857) wherein a store clerk was

prohibited from pursuing a claim of partnership when

he had asserted in an earlier court action that he was

only an employee. Since that time, federal and state

courts discussing the doctrine have applied it with dif-

fering formulations or rejected it outright.” See, for

’ For a comprehensive survey of those state and federal

courts that have accepted or rejected the use of the doctrine,

see Judicial Estoppel — Beating Swords into Shields and Back

Again, supra, Appendix and n.3.

example, the state court decisions in Ray v. Midfield

Park, Inc., 289 Ala. 137, 142, 266 So.2d 291, 295 (1972),

Long v. Knox, 155 Tex. 581, 585, 291 S.W.2d 292 (1956)

and Allen v. Allen, 550 P.2d 1137, 1142 (Wyo. 1976),

which disagree as to whether the doctrine requires prior

success, actual prejudice, or actions taken i: «© prior

“judicial” proceeding. Additionally, at least three states

have rejected the use of the doctrine completely. See

Brown v. Gerstein, 17 Mass. App. Ct. 558, 460 N.E.2d

1043 (1984); MacFarlane v. Manly, 274 S.C. 392, 264

S.E.2d 838 (1980); and Doyle v. State Farm Insurance

Co., 414 So.2d 763 (La. 1982).

This lack of uniformity in the application and inter-

pretation of the doctrine in state courts is also demon-

strated by the multiplicity of conflicting opinions in the

federal circuits which have applied the doctrine. The

doctrine has been accepted in the Third, Fourth, Fifth,

Sixth, Seventh, Ninth, Eleventh and Federal Circuits. It

has been rejected by the Tenth and D.C. Circuits. While

both the First and Second Circuits have accepted the

doctrine, its continued applicability there has been

placed in doubt, due to conflicting panel opinions.”

The Tenth and the D.C. Circuits reject the use of the

doctrine because it precludes a search for the truth.”

*” Judicial Estoppel - Beating Swords into Shields and Back

Again, supra, at n.3.

Chrysler Credit Corp. v. Country Chrysler, Inc., 928

F.2d 1509, 1522 (10th Cir. 1991); Parkinson v. Califor-

nia Company, supra; United Mine Workers of America

1974 Pension v. Pittston Co., 984 F.2d 469, 477 (D.C.

Cir. 1993); Konstantinidis v. Chen, supra.

The Third Circuit appears to stand alone in allowing

the application of the doctrine without the prerequisite

of a successful prior proceeding. Compare Ryan Opera-

tions GP v. Santiam-Midwest Lumber Co., 81 F.3d 355

(3d Cir. 1996) with Sedlack v. Braswell Services Group,

Inc., 1384 F.3d 219, 224 (4th Cir. 1998); U.S. for Use of

American Bank v. CIT Const. Inc. of Texas, 944 F.2d

253 (5th Cir. 1991); Edwards v. Aetna Life Ins. Co., 690

F.2d 595 (6th Cir. 1982); Astor Chauffeured Limousine

v. Runnfeldt Investment Corp., 910 F.2d 1540 (7th Cir.

1990) (all agreeing prior success is necessary for applica-

tion of judicial estoppel).

Additionally, the courts of the several circuits adopt-

ing the doctrine also appear to disagree as to whether

the prior success need have been in a court of law or at

least in a quasi-judicial proceeding. Compare Ryan,

21 (continued)

[jjudicial estoppel is applied with caution to avoid im-

pinging on the truth-seeking function of the court be-

case the doctrine precludes a contradictory position

without examining the truth of either statement.

Teledyne Industries, Inc. v. N.L.R.B., 911 F.2d 1214, 1218 (6th

Cir. 1990). See also Douglas W. Henkin, Judicial Est l-

Sn eT ee es ee 139 U. L.

Rev. 1711 (1991) (judicial eo eliminated be-

cause it violates truth-seeking of courts and liberal

pleading policies Pedanl Re Rules).

supra (Third Circuit) and Rissetto, supra (Ninth Circuit)

to Edwards v. Aetna Life Ins. Co., supra, (Fifth Circuit)

and Dockery v. North Shore Medical Center, supra

(Eleventh Circuit). The circuit courts also seem divided

even on the question of whether settlement in the prior

proceeding constitutes the required “success.” Compare

Rissetto, 94 F.3d at 605 n.6 (“We hold that a favorable

settlement constitutes the success required”) to Ed-

wards, 690 F.2d at 599, and Konstantinidis, 626 F.2d at

939 (settlement does not provide the prior approval of a

court that the judicial estoppel doctrine requires).”

Finally, some of the Courts of Appeals have stated

that judicial estoppel requires the reliance of and detri-

ment (or prejudice) to the opposing party. See Young v.

U.S. Dept. of Justice, 882 F.2d 633, 639-640 (2d Cir.

1989); Jackson Jordan, Inc. v. Plasser American Corp.,

747 F.2d 1567, 1578-80 (Fed. Cir. 1984); Maitland v.

University of Minnesota, 43 F.3d 357, 363-364 (8th Cir.

1994).

As a result of this cacophony of voices from the

circuits, the doctrine has been described as “rather

* Commentators have generally followed the view that the

ee See See Note,

) Preclusion Against Inconsistent Positions in

Mark J. Plumer, Judicial Estoppel: The Re

Judicial Shield, 55 Geo. Wash. L. Rev. 409, 411 n.11 (1987)

vague,” en * »bscure doctrine,”™ “lacking defined prin-

ciples,” “rather amorphous,” and leading to “an ad hoc

decision in each case.”™

B. The Judicial Estoppel Doctrine is Incompatible

with the Rules of Civil Procedure Governing

Summary Judgment and Alternative Pleadings.

1. Credibility Determinations and Summary

Disposition.

Based upon these splintered interpretations and in-

consistent applications of the doctrine, it is clear that

Carolyn Cleveland and many other ADA claimants have

been barred from presenting their claims primarily

because of the accident of the geography of their work-

places and the unguided discretion of the trial judge

assigned to their cases. These circumstances beyond

claimants’ control are often then exacerbated by Courts

of Appeals which allow or disallow the use of a doctrine

contingent upon a de novo finding that a litigant ap-

pears to be lying or appears to have lied previously.

Indeed, the unhappy fact is that any trial judge or

appellate body applying the doctrine must necessarily

make credibility determinations and factual findings in

direct violation of the prohibitions of Rule 56 of the

Federal Rules of Civil Procedure and the requirements

set forth by this Court in Anderson v. Liberty Lobby,

*% Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d

208, 212 (1st Cir. 1987).

* U.S. v. Kattar, 840 F.2d 118, 129 n.7 (1st Cir. 1988).

5 Nichols v. Scott, 69 F.3d 1255, 1272 (5th Cir. 1995).

a ee ee -

Inc., 477 U.S. 242, 249 (1986) (“It is not the role of the

judge at the summary judgment stage to weigh the evi-

dence or to evaluate credibility”). Allowing this doctrine

to usurp the jury’s traditional role should not be ration-

alized by wrapping summary disposition based on credi-

bility determinations in an altruistic blanket of the very

sanctity of our federal judicial system.

2. The Right to Make Alternative Averments.

Rule 8(e)(2) of the Federal Rules of Civil Procedure

clearly permits a party to make inconsistent assertions

in a single proceeding before our federal courts:

A party may set forth two or more statements of

a claim or defense alternately or hypothetically,

either in one count or defense or in separate

counts or defenses. When two or more state-

ments are made in the alternative and one of

them if made independently would be sufficient,

the pleading is not made insufficient by the

insufficiency of one or more of the alternative

statements. A party may also state as many

separate claims or defenses as the party has

regardless of consistency, and whether based on

legal, equitable, or maritime grounds. All state-

ments shall be made subject to the obligations

set forth in Rule 11.

Fed.R.Civ.P. 8(e)(2).

Relying upon this policy of truth-seeking underpinning

the federal rule condoning inconsistent pleadings, the

Tenth Circuit in Parkinson v. California Co., supra,

refused to apply the doctrine of judicial estoppel, stating

that its use “would not be in keeping with the spirit of

.. . Rule 8(e(2) . . . and would discourage the determi-

nation of cases on the basis of the true facts as they

might be established ultimately.” See also Dugan v.

EMS Relicopters, Inc., 915 F.2d 1428 (10th Cir. 1990);

Panama Processes, S.A. v. Cities Serv. Co., 796 P.2d

276, 286 n.43 (Okla. 1990).

Quite simply, a doctrine that does not permit a claim-

ant to plead inconsistent positions in two separate

actions is itself “inconsistent” with the rules that govern

in all federal courts—rules (specifically Federal Rule of

Civil Procedure 8(e)(2)) that clearly allow a litigant to

make those same inconsistent averments in a single

action before any federal court.

ll. THE JUDICIAL ESTOPPEL DOCTRINE VIOLATES

DUE PROCESS.

Denying plaintiffs their opportunity for a full and

complete hearing on the facts of each case (such as that

which occurs when a judge invokes the doctrine of judi-

cial estoppel) also directly conflicts with the right to a

jury trial provided by the Seventh Amendment to the

United States Constitution. The continued use of this

common law preclusion doctrine violates the intent of

the Founders that the right to trial not vary from the

right that existed in the common law at the time of the

Seventh Amendment’s ratification in 1791.

The doctrine of judicial estoppel did not find a place in

the common law until it was recognized in 1857 by the

Supreme Court of Tennessee, nearly seventy years and

three generations of Americans after the ratification of

the Seventh .4saendment. Rand G. Boyers, Comment,

Precluding Inconsistent Statements: The Doctrine of

Judicial Estoppel, 80 Nw. U. L. Rev. at 1245 (1986). In

no sense is judicial estoppel a traditional preclusion doc-

trine grounded in the common law of the sort which

warrants continued deference by the courts. Certainly,

denying a trial to a litigant on the basis of perceived

untruthfulness would constitute a loss of the firm

anchor the Founders provided to the Seventh Amend-

ment, based in the common law as they then knew it.

See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. at

337-357 (1979) (Rehnquist, J. dissent).

Iii. IN THE CONTEXT OF DISABILITY CLAIMS, THE

APPLICATION OF THE JUDICIAL ESTOPPEL

DOCTRINE DENIES FUNDAMENTAL FAIRNESS

AND DUE PROCESS TO SERIOUSLY INJURED

AMERICANS GRANTED PROTECTION UNDER

THE ADA.

Throughout history, the disabled have been viewed

and treated differently than other members of society:

Images of the disabled as either less or more

than merely human can be found throughout re-

corded history. There is the blind soothsayer of

ancient Greece, the early Christian belief in

demonic possession of the insane, the persistent

theme in Judeo-Christian tradition that disabil-

ity signifies a special relationship with God. The

disabled are blessed or damned but never hu-

man

Alan Gartner and Tom Joe, Images of the Disabled, Dis-

abling Images, Introduction, pp. 1-2 n.1.

In this country, the disabled have been viewed as

morally inferior, medically afflicted, and socially devi-

ant. Jonathan C. Drummer, Comment, Cripples, Over-

comers, and Civil Rights: Tracing the Evolution of

Federal Legislation and Social Policy for People with

Disabilities, 40 UCLA L. Rev. 1341, 1345-55 (1993). See

also Frank Bowe, Handicapping America: Barriers to

Disabled People (1978) (discussing prejudice, physical

barriers, and negative attitudes generally suffered by

persons with disabilities).

These misperceptions of persons who suffer disabilities

have resulted in less employment opportunity and great-

er underemployment, as compared to the non-disabled

population. Edward Gellen, Disabled Concern: The

Social Context of the Work-Disability Problem, 67 Mill-

bank Q. 114 (1989). See also Robert L. Burgdorf, Jr.,

The Americans with Disabilities Act: Analysis and Im-

plications of a Second Generation Civil Rights Statute,

26 Harv. C.R.-C.L.L. Rev. 413, 422 (1991).

It was in the context of these unfortunate social and

economic circumstances that Congress passed the Amer-

icans with Disabilities Act of 1990, 42 U.S.C. § 12101

(1994).”* See Timony M. Cook, The Americans with Dis-

abilities Act: The Move to Integration, 64 Temp. L. Rev.

393, 440-42 (1991).

The concept of providing direct economic aid to the

disabled, however, long preceded the passage of the

ADA. The disability benefit programs incorporated in

the provision of Social Security Disability Insurance

(SSDI) and Supplemental Security Income (SSI) are

%° The espoused goals of the Act were to assure to persons

with disabilities “equality of opportunity” and “economic self-

sufficiency.” 42 U.S.C. § 12101(aX8).

based upon the reality that medical and psychological

impairments do often cause an inability to work.

The interrelationships and perceived contradictions of

these two separate but different statutory schemes re-

lating to the disabled have been the subject of numerous

well-considered commentaries and studies, and will un-

doubtedly be the focus of the submissions of the peti-

tioner, as well as several amici curiae, including that of

the governmental agencies who were invited by the

Court to participate.” Accordingly, these issues will not

be examined herein except to set the basis for con-

cluding that there is no inherent contradiction be-

tween making payments to the disabled and encour-

aging equality in the workplace for persons with dis-

abilities:

One attempt to reconcile these policies is to view

the two statutory schemes as serving different

groups of people. Under this view, the disability

benefit programs are for people who “cannot

work,” while the ADA is intended to protect

disabled people who “can” work. This view di-

vides disability policy into two mutually exclu-

sive spheres—people with disabilities may re-

ceive the protection of one of these statutes, but

not both.

Many judicial decisions have reconciled the

ADA with the disability benefit programs in this

7 See, e.g., W Wilkerson, Judicially Crafted Barriers to

Bringing Suit Under tiie Americans with Disabilities Act, 38

S. Tex. L. Rev. 907, 913-915 (1997); Anne E. Beaumont, Note,

This Estoppel Has Got to Stop: Judicial Estoppel and the

a with Disabilities Act, 71 N.Y.U. L. Rev. 1529

way by holding that disability benefit recipients

are estopped from maintaining suits against

their former employers under the ADA. These

courts view an award of disability benefits as a

binding admission by the individual that he or

she cannot work. These decisions, however, over-

simplify the relationship between the ADA and

the disability benefit programs. They fail to rec-

ognize that the findings that support an award

of disability benefits are not necessarily inconsis-

tent with the elements of a claim of employment

discrimination under the ADA. Moreover, these

cases fail to appreciate the unfairness of requir-

ing people with disabilities to select one remedy

rather than another when both statutes rely on

broad standards whose application is difficult to

predict.

Matthew Diller, Dissonant Disability Policies: The Ten-

sions Between the Americans with Disabilities Act and

Federal Disability Benefit Programs, 76 Tex. L. Rev.

1003, 1007-1008 (April 1998) (citations omitted).

As suggested in the detailed discussions above, ju-

dicial estoppel impedes a complete investigation of the

facts in any case. However, the preclusionary effect of

the doctrine is especially pernicious in the context of

denying persons with disabilities who have also been

forced to avail themselves of disability benefits any

opportunity to be heard on the facts of an ADA claim.

It has long been the policy of American jurisprudence

in that regard that a litigant’s right to be heard will be

carefully guarded when it involves a broad and benefi-

cial public policy. More specifically, this Court has

always sought to guard the protectionist intent of Con-

gress in the context of civil rights acts. See University

of Tennessee v. Elliott, 478 U.S. 788 (1986) (Title VII

complainant’s right to trial not precluded by unreviewed

state administrative proceeding) and Astoria Federal

S & L Ass’n v. Solimino, 501 U.S. 104 (1991) (same re:

age complainant). See also Alexander v. Gardner-Denver

Co., 415 U.S. at 49-51 (election of remedies doctrine not

a bar to Title VII action based on prior arbitration

under collective bargaining agreement).

The Court has also previously refused to allow pre-

clusion where a trial was held to be necessary to vin-

dicate important issues of public policy. Perma Life

Mufflers, Inc. v. Intern. Parts Corp., 392 U.S. 134, 136

(1968) (application of the in pari delicto doctrine re-

versed where it “threatens the effectiveness of the

private action as a vital means for enforcing the anti-

trust policy of the United States”); Brown v. Felsen,

supra (doctrine of collateral estoppel not a bar to sub-

sequent action where its application would be inconsis-

tent with the policies underlying the Bankruptcy Act).

More recently, this Court refused to apply an equita-

bie preclusionary doctrine to deny a civil rights claimant

the benefit of a full hearing on the issues. In McKennon

v. Nashville Dinner Publishing Co., 513 U.S. __, 115

S.Ct. 879 (1995), this Court has refused to allow the

doctrine of “unclean hands” to prevent a plaintiff from

pursuing claims filed under the Age Discrimination in

Employment Act, 29 U.S.C. § 621 et seq.:

The objectives of the ADEA are furthered

when even a single employee establishes that e~

employer has discriminated against him or her.

The disclosure through litigation of incidents or

practices which violate national policies respect-

ing nondiscrimination in the workforce is itself

important, for the occurrence of violations may

disclose patterns of noncompiixnce resulting

from a misrepresentation of thw Act’s operation

or entrenched resistance to its commands, either

of which can be of industry-wide significance.

McKennon, 513 U.S. at __., 115 S.Ct. at 885 (1995).

This action by this Court was based upon the impor-

tance of upholding the broad public policy encompassed

in the statutory scheme to protect employees in the

workplace nationwide. Importantly, that framework of

protection was held to include the provisions of the

ADA. McKennon, 513 U.S. at __, 115 S.Ct. at 884.

Contrary to this long line of authority, the Fifth Cir-

cuit Court of Appeals effectively denied Carolyn Cleve-

land’s right to be heard by applying a doctrine of pre-

clusion not unlike “unclean hands.” Consistent with this

Court’s clear protection of civil rights policies, that

action should not be upheld.

IV. OTHER EXISTING REMEDIES ARE ADEQUATE TO

PROTECT LITIGANTS, THE COURTS, AND OUR

SYSTEM OF JUSTICE FROM ABUSE.

Amici acknowledge that no litigation is “fair” unless it

protects the interests of all parties. Certainly, employers

in ADA cases are entitled to comprehensive protection

from intentionally dishonest employees who undeserv-

edly make claim to damages to which they are not en-

titled. That end, however, is not well served by the

continued case of the doctrine of judicial estoppel:

Judicial estoppel was developed to meet the

perceived needs of protecting the judicial system

at a time when rules of pleading were strict and

Douglas W. Henkin, Judicial Estoppel — Beating Shields

Into Swords and Back Again, 139 U. Pa. L. Rev. at

1755.

In this context, it is further enlightening that a recent

study of the American Bar Association Commission on

Mental and Physical Disability Law concluded that the

prevailing axiom that the ADA unfairly favors employ-

ees was simply untrue, and that a review of over 1200

cases revealed that employers were successful 92 per-

cent of the time. 22 Mental and Physical Disability Law

Reporter 403 (1998). The report resolved that the rea-

sons employees tend to lose at such an alarming rate

can be attributed to “two major ‘catch-22’s’ that more

often than not result in automatic dismissals of employ-

ment-related disability discrimination claims before

those claims can be heard on the merits:”

There is a fundamental catch-22 with respect to

the ADA provisions that require a disability to

be substantially limiting, while requiring em-

ployees with such a disability to be otherwise

qualified to carry out essential job functions. In

other words, employees have to have a severe

enough disability, but it cannot be so severe that

they are unable to do their job competently.

* * *

A second, less widespread but equally perni-

cious ADA catch-22 for those affected involves

the doctrine of collateral estoppel. A number of

courts have denied claims of employees with dis-

abilities who have applied for or have received

federal or state disability benefits-particularly

social security and workers’ compensation-which

require applicants to assert that they are unable

to work. Based on these assertions, some courts

conclude that these employees are not otherwise

qualified to carry out essential job functions.

Thus, persons who lose their jobs because of dis-

ability discrimination may be forced to choose

whether to file a discrimination suit, which may

take a long time to resolve and in the interim

would leave them without income, or file for dis-

ability benefits and risk undermining their dis-

crimination claims.

Id. at 405.

In today’s fora, litigant dishonesty is more appropri-

ately dealt with by discretionary adherence to the pano-

ply of established rules of procedure and evidence avail-

able to every trial court including:

(1) the admission of the perceived false statements as

admissions of a party in interest in accordance with

Federal Rules of Evidence 613 and 801(d)(1)-(2). Parkin-

son v. California Co., 233 F.2d at 438; see also Teledyne

Industries, Inc., 911 F.2d at 1218 (noting reliance on

Fed.R.Evid. 801(d)(1)(A) and 613); Dockery, 909 F.Supp.

at 1559 (prior sworn statements in disability appli-

cations only “one more piece of evidence”); Note, The

Doctrine of Preclusion Against Inconsistent Positions in

Judicial Proceedings, 59 Harv. L. Rev. at 1136 (“using

a prior inconsistent statement as an admission is less

drastic than precluding a change of position because the

jury is not foreclosed from weighing the earlier position

against the later one and deciding which represents the

objective truth”); Rand G. Bowers, Precluding Inconsis-

tent Statements: The Doctrine of Judicial Estoppel, 80

Nw. U. L. Rev. at 1255 (impeachment better than “ex-

treme measure of judicial estoppel”);

(2) the use of Rule 11 of the Federal Rules of Civil

Procedure which can be applied against both parties and

their attorneys for pursuing frivolous suits or claims;

(3) the application of Rule 60(b) to reopen a judgment

found to be inconsistent with the judgment of another

court,

(4) the grant of summary judgment in cases where

there is no reasonable basis to conclude that an ADA

litigant is a qualified individual who can work with or

without reasonable accommodation; and

(5) by reference of an intentionally dishonest claimant

for action pursuant to statutory prohibitions against

perjury.

By the use of one or more of these alternatives, which

are currently available and provide a more reasoned and

rational approach to a very controllable circumstance,

no court need ever deny a civil rights claimant the right

to a full hearing based on an anachronistic preclusion-

ary doctrine.

CONCLUSION

It is respectfully suggested that the decision of the

Court of Appeals for the Fifth Circuit should be reversed

and the cause of Carolyn Cleveland under Title I of the

Americans with Disabilities Act remanded for a full

hearing on its merits.

Respectfully submitted,