Opposition Brief — Chevron USA Inc. v. Echazabal

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No. 00-1406

In The

Supreme Court of the United-Statés™ |

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CHEVRON U.S.A., INC.,

Petitioner,

MARIO ECHAZABAL,

Respondent.

*

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

S

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

.

Cua R. Fe_pstum Larry MINsky

GEORGETOWN University Law Counsel of Record

CENTER Lemaire, Faunce, Pincer &

600 New Jersey Ave., N.W. Sincer, P.C.

Washington, D.C. 20001 17785 Center Court Drive,

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—oOoOoOoOooo———— eee

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OR CALL COLLECT (402) 342-2831

i

QUESTION PRESENTED

Whether the Americans with Disabilities Act permits

an employer to deny a job to an individual with a disabil-

ity who is able to perform the essential functions of a job

and who poses no threat to the health or safety of others,

but whom the employer believes will be harmed by the

job at issue.

ii

TABLE OF CONTENTS

Page

OCuestion Presemteds ....scccsccsceoccsesesennnneen i

Stntemnemt ....cccvccccsccccescccessueeuan nanan 1

Reasons for Denying The Writ..............eee0005 8

I. This Case Implicates No Significant Conflict In

The Circuits Warranting This Court’s Inter-

VORMIOR 0. occ cccccccccccccsocsceeseeseeneeuee

A. There Is No Serious Conflict Regarding

Whether The Statutory Defense For

“Direct Threat To Others” Encompasses

An Employee’s Direct Threat To His Own

Sabaty .. oc ccccccccsccccscesenseeeeenneee

B. There Is No Conflict In The Circuits

Regarding Whether A Risk To Self Can

Render An Individual Not “Qualified”

Undies TRO ABA... cccccssvcsueeuneel

Il. The Court Of Appeals Correctly Interpreted

The Statute To Bar A “Threat To Self” Defense

Im Tile Case ...cccccscessscesseubeunnnnnee

A. No Provision Of The ADA Permits An

Employer To Exclude An Individual With

A Disability From Employment Solely

Because Of A Fear That, At Some Point In

The Future, The Employee Might Experi-

ence Adverse Health Effects.............

B. The Court Of Appeals Properly Declined

To Accord Deference To The EEOC’s Mani-

festly Erroneous Interpretation Of The

Direct Threat Provision ..............00.

Comebensiam ...occccvcceecccceesensnnnee

10

10

16

20

21

iii

TABLE OF AUTHORITIES

Page

Cases

Albertson's, Inc. v. Kirkingburg, 527 U.S. 555

GOOD ccccccoccesccccccsccccccsecccece 25, 26, 28, 29

alli v. Thunder Basin Coal Co., 235 F.3d 1284

SE GE Mec cccccccscscccescccecccocescceeces 11

Bragdon v. Abbott, 524 U.S. 624 (1998) .............05. 6

Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir.

EEE SCE NESEEFPTOTT TTT ETUTUTTT TTT TTL T TE 12

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)............055. 8, 29

Chiari v. City of League City, 920 F.2d 311 (Sth Cir.

DUPE RERbRebGebedbecnncccccccececcccsceccces 12

Daugherty v. City of El Paso, 56 F.3d 695 (Sth Cir.

EEE IEPEEEPPOTTTTTTTTTITTT TTT TTT 12

Doe v. New York Univ., 666 F.2d 761 (2d Cir.

EEE PO PTT TTTTTTTTTTTL TTT Te 12, 13

Dothard v. Rawlinoon, 433 U.S. 321

EEN OPOTTTTTTTTTTTT TTT TTT 7, 9, 10, 24

FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

EES AEE ETT TTT ETT TT TTT TTT 28

International Union v. Johnson Controls, Inc., 499

Ss ccscesacceccececccccccs 7, 9, 10, 24, 26

Knapp v. Northwestern Univ., 101 F.3d 473 (7th Cir.

EE LEEELESEC OOPS ET TT TTT TTT TT TTT TTT 12, 13

Koshinski v. Decatur Foundry, Inc., 177 F.3d 599 (7th

i CAEReheSGuseescnccecccccccccccccces: 16, 17

iv

TABLE OF AUTHORITIES ~- Continued

Page

LaChance v. Duffy's Draft House, 146 F.2d *32 (11th

Cie, BOTED ccccccccccccccccescccccesscsosccsoces 11, 15

Lowe v. Alabama Power Co., 2001 WL 286612 (11th

Cis, Bian BR, FEED. cc ccccccccccccsccccccessosess 6, 14

Moses v. American Nonwovens, Inc., 97 F.3d 446

(11th Cir. 1996) (per curiam)..............++. 13, 14, 15

Public Employees Retirement Sys. v. Betts, 492 U.S.

BED GID o cc cccccccccncccceccecscccccesecsoussens 30

STATUTES AND REGULATIONS

@ UG. § TRIBE)... cccccscccccsccccccsccccccs 9, 25

@ UBL. & GERRI cc ccccccccccccccccsces 8, 16, 23, 27

RR Rr 16, 23

OO CE, 0 I, ccnccscdscceckscctscteaemaeee 14

GB BBG. B TIED occcccccsiccccccecsesscoccsnsene 19

42 U.S.C. § 12113(b) ................ 7, 9, 10, 21, 27, 29

2D CIR. © BGGRBD o cccccccescccccsccces 11, 14, 28, 29

2D CIR. © BBD Bie). cccccccveccccscccesccccvcccese 28

SD CIR. © BETTS cc ccccccscscccscccsvseces 28, 29

OrHER AUTHORITIES

43 Fed. Reg. 12293 (Mar. 24, 1978)...............5+- 27

H.R. Rep. No. 485, Part 2, 101st Cong., 2d Sess. 74

Pre 9, 25

Webster’s Third New International Dictionary ....... 23

1. This case involves an employer’s admittedly dis-

ability-based decision to exclude an employee from the

workplace based solely on the paternalistic fear that the

employee would suffer harm in the future if he continued

in his employment. Respondent Mario Echazabal worked

at Chevron’s oil refinery in El Segundo, California from

1972 until 1996 (leaving for three years between Decem-

ber 1975 and January 1979). Pet. App. 2a; C.A. E.R. 328.1

Throughout this period of time, respondent worked pri-

marily in the coker unit. Pet. App. 2a. In this job, respon-

dent was exposed to hydrocarbon liquids and vapors,

acid, caustic refinery waste water and sludge, petroleum

solvents, oils, greases, and chlorine bleach. C.A. E.R. 159,

333, 537-538.

Respondent never worked directly for Chevron dur-

ing this time period, but rather performed his job through

various maintenance contractors. C.A. E.R. 328. In 1992,

respondent applied for a job directly with Chevron in the

same coker unit in which he had been working for the

contractors. Pet. App. 2a. Although respondent received a

conditional job offer from Chevron, the offer was

rescinded following a pre-employment physical. Ibid.

Based on blood test results from the physical examina-

tion, indicating that respondent’s “liver was releasing

certain enzymes at a higher rate than normal level,”

Chevron’s physician concluded that respondent’s liver

1 Because this case arises on review of the district court's

grant of summary judgment to the petitioner, the record must be

viewed in the light most favorable to the respondent.

“might be damaged by exposure to the solvents and

chemicals present in the coker unit.” Ibid.

Following his rejection by Chevron, respondent con-

tinued to perform his same job duties in the same refinery

for Chevron’s maintenance contractor. Ibid. Based on the

pre-employment physical, however, respondent sought

treatment from his own doctors. C.A. E.R. 329. In approx-

imately 1993, respondent’s doctor diagnosed him as hav-

ing chronic hepatitis C. Pet. App. 3a; C.A. E.R. 398. The

majority of people with chronic hepatitis C do not

develop symptoms such as fatigue or liver failure for

many decades. C.A. E.R. 321. Indeed, respondent

remained asymptomatic from the time of his diagnosis to

his termination in 1996. C.A. E.R. 393, 394, 400.

Respondent’s blood tests not only revealed abnormal

enzyme test results (which indicate an inflammation of

the liver and, hence, a diagnosis of chronic hepatitis C),

but also revealed that respondent had normal levels of

albumin and prothrombin. C.A. E.R. 322-323. Under

established medical practice at that time, such results

indicate that a liver is functioning properly (even though

it may be inflamed due to the hepatitis and thus manifest

increased enzyme levels), and therefore, that it is fully

capable of filtering toxic materials. Ibid. Based on respon-

dent’s normal test results, and having reviewed the

“GO-308” form describing the physical and environmen-

tal conditions in respondent’s workplace, respondent's

physician sent a letter to Chevron in April 1993 stating

that there should be “no restriction on [respondent's]

activity at work as outlined by the working condition

sheet GO-308.” C.A. E.R. 394.

Because his doctors placed no restrictions on him,

respondent continued to work in the oil refinery’s coker

unit. C.A. E.R. 330. His enzyme levels continued to be

high (indicating that he did, indeed, have chronic hepa-

titis C), and his albumin and prothrombin levels contin-

ued to be normal, indicating that his liver was continuing

to function normally. C.A. E.R. 322-323. Thus, in 1993 and

1994, respondent's physician sent Chevron letters stating

that respondent could perform his job without limita-

tions, and appended the relevant blood tests. C.A. E.R.

392-399.

In 1995, respondent again applied to work directly

for Chevron at the coker unit, this time in a “plant

helper” position. Pet. App. 3a. Again, respondent

received a conditional job offer from Chevron that was

rescinded after a pre-employment physical. Ibid. Despite

the fact that this physical examination revealed identical

medical information that Chevron had had in its posses-

sion for three years, that accepted medical knowledge at

the time indicated that an individual with such blood

results has a normally functioning liver that will expose

such an individual to no greater risks than others, that

respondent's physicians had, over a period of three years,

informed respondent he could continue in his job without

risk, and that respondent had, indeed, suffered no reduc-

tion in liver capacity over the previous three years, Chev-

ron’s physician, Dr. McGill, decided that “further

exposure to hepatotoxic chemicals and solvents would

further damage [respondent’s] already reduced liver

capacity and seriously endanger his health.” C.A.

E.R. 81.2 Chevron accordingly withdrew respondent's

conditional job offer. Pet. App. 3a.°

2 In fact, while respondent's enzyme tests indicated he had

an inflamed liver, there was no evidence that respondent had

“reduced liver capacity.” See C.A. E.R. 324 (“While it is true that

Mr. Echazabal has abnormal liver enzyme levels, those enzyme

levels do not reflect reduced liver function.”). Two experts who

later reviewed the same information held by Chevron’s

physician concluded that Dr. McGill’s opinion “contradict[ed]}

medical research in this area,” C.A. E.R. 323; that

“[respondent’s] liver is as capable as detoxifying or

metabolizing toxins that enter his body as is any other person,”

C.A. E.R. 325; and that “[respondent] is not at risk by virtue of

the fact that Chevron maintains these chemicals in the Refinery /

coker,” C.A. E.R. 314.

3 Petitioner erroneously states that “[t]he Ninth Circuit

held that Echazabal was ‘qualified’ for the plant helper job

despite the fact that Echazabal’s and Chevron’s doctors agreed that

the substances he would be exposed to on the job would harm or kill

him.” Pet. 13 (emphasis added). In fact, over a period of three

years, Echazabal’s doctors had consistently informed both

Echazabal and Chevron that Echazabal could continue to work

in the coker unit with no risk of harm to his liver. A letter from

Dr. Weingarten (one of respondent’s doctors) to Dr. McGill

concludes with an ambiguous statement that “exposure to

hepatotoxic hydrocarbons” is “recommended not to be the

case.” C.A. E.R. 195. There is no evidence that Dr. Weingarten

was provided with accurate information regarding the

concentration or exposure levels of substances to which

respondent would be exposed in the refinery. C.A. E.R. 497-499,

510. Dr. Weingarten’s general statement that “exposure to

hepatotoxic hydrocarbons” is “recommended not to be the

case,” is a far cry from “agree[ing] that the substances

[respondent] would be exposed to on the job would harm or kill

him.” Pet. 13.

Several weeks after petitioner rescinded respondent's

conditional job offer, it informed the maintenance con-

tractor for whom respondent was working that respon-

dent was to be immediately removed from the refinery or

be provided a job that “eliminate[d] his exposure to sol-

vents/chemicals.” Pet. App. 3a (internal quotation marks

in original). Respondent was removed from his job and

shortly thereafter became unemployed. Pet. App. 3a.

2. Respondent filed suit against petitioner in Cali-

fornia state court. The complaint alleged, inter alia, that

petitioner’s refusal to hire respondent — and its directive

to its contractor to remove respon‘ent from the refinery —

violated the Americans with Disabilities Act and Califor-

nia’s Fair Employment and Housing Act (FEHA). Pet.

App. 33a. Petitioner removed the case to the District

Court for the Central District of California, Pet. App. 33a,

and moved for summary judgment. Petitioner conceded

that its adverse employment actions rested solely on the

fact that respondent had hepatitis C, and it “d[id] not

challenge that [respondent] has a disability under the

FEHA [or] ADA.” Pet. App. 46a n.6. It rested its defense

entirely on the ground that respondent would pose a

“direct threat” to himself if he continued to work in the

refinery. Pet. App. 46a.

The district court concluded that respondent had

“presented evidence raising a genuine issue as to whether

the position of plant helper would, in fact, have posed [ ]

a direct threat to Echazabal’s liver condition or overall

health,” and that respondent had “presented evidence

raising a genuine issue that despite elevated liver

enzymes, [respondent's] liver function was normal, and

that the substances to which he would be exposed in the

position of plant helper posed no greater danger to Echa-

zabal than to other workers.” Pet. App. 48a. Nevertheless,

the district court concluded that the relevant issue was

“not whether Chevron was in fact objectively correct in its

determination that Echazabal’s continued employment at

the refinery posed a direct threat to his health,” but

rather “whether Chevron was reasonable in its deter-

mination that the employment of Echazabal presented a

direct threat to the [respondent.]” Pet. App. 52a. The

court held that respondent had failed to present “admis-

sible evidence raising a genuine issue of material fact” as

to whether Chevron had, in fact, not been reasonable in

its determination. Id. Accordingly, the district court

granted summary judgment to petitioner. [bid.

3. On appeal, respondent argued that the district

court had misapplied this Court’s teachings that deter-

minations regarding risk must be based on “objective,

scientific information available” to a physician and others

in his or her profession, and that a physician’s belief that

a significant risk exists, “even if maintained in good

faith,” does not relieve the decisionmaker of liability if

that belief is unreasonable in light of the then-existing -

state of medical science. Bragdon v. Abbott, 524 U.S. 624,

649 (1998); see also Lowe v. Alabama Power Co., 2001 WL

286612 at *3-*4 (11th Cir. Mar. 23, 2001) (relying on this

aspect of Bragdon to reverse grant of summary judgment

to employer where the safety risk judgment made by the

employer’s physician was not based “on particularized

facts using the best available objective evidence”). How-

ever, the court of appeals saw no need to reach respon-

dent’s argument that Chevron’s physicians had arrived at

a demonstrably incorrect conclusion —- one wholly incon-

sistent with basic medical knowledge available at the

time — regarding the risk that respondent’s continued

employment would pose.

Rather than reach this fact-specific question, the

court of appeals found a more basic legal flaw in peti-

tioner’s argument. The court held that the ADA’s “direct

threat” defense does not apply to employees who pose a

direct threat solely to their own health or safety, and not

to the health or safety of other persons. The court relied

on the plain text of the “direct threat” provision, which

permits an employer to exclude an employee who

“pose[s] a direct threat to the health or safety of other

individuals in the workplace,” 42 U.S.C. § 12113(b)

(emphasis added), but makes no mention of risks to the

employee himself. Pet. App. 6a-7a. The court found addi-

tional support in the statute’s legislative history, which

consistently discusses the “direct threat” defense in terms

of risks that individual employees might pose to others

rather than to themselves. Pet. App. 7a-9a. Finally, the

court found the congressional decision to bar employers

from making paternalistic decisions to exclude people

with disabilities from employment opportunities to be

consistent with the similar Congressional decision to bar

employers from excluding women from employment

opportunities based on a concern for a female employee’s

health or safety. See International Union v. Johnson Con-

trols, Inc., 499 U.S. 187 (1991); Dothard v. Rawlinson, 433

U.S. 321, 335 (1977); Pet. App. 9a-10a.

Although a regulation of the Equal Employment

Opportunity Commission (EEOC) includes a “threat to

self” in the “direct threat” defense, the court of appeals

concluded that the regulation was inconsistent with the

“unambiguously expressed intent of Congress,” Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 842-43 (1984), and hence invalid. Pet. App. 12a.

The court also rejected Chevron’s argument that the pur-

ported risk the job posed to his health rendered respon-

dent not “qualified” to perform the “essential functions”

of his job. See 42 U.S.C. § 12111(8) (defining “qualified

individual with a disability”). “[NJot posing a risk to

one’s own health or safety,” the court concluded, “cannot

in itself constitute an essential job function.” Pet. App.

17a. In this case, the court concluded, “Chevron has never

contended that the risk Echazabal allegedly poses to his

own health renders him unable to perform [the] duties [of

the coker unit job].” Ibid.

Although the original opinion of the court of appeals,

issued on May 23, 2000, indicated a unanimous panel

vote, the court issued an order four months later amend-

ing that opinion to include a dissent by Judge Trott. Pet.

App. 2a. Applying the EEOC regulation, Judge Trott

argued that petitioner could justify its actions on the

ground that respondent’s continued employment would

pose a direct threat to his own health or safety. Pet. App.

22a-23a.

REASONS FOR DENYING THE WRIT

The decision below addressed a very specific (and,

for all that appears from the cases, infrequently occur-

ring) situation: A case in which an employer denied an

individual a job based solely on the employer’s purely

paternalistic belief that the job would be dangerous to the

individual’s own health. Petitioner has neither alleged

nor presented evidence that respondent’s medical condi-

tion rendered him unable to perform the tasks required for

the job, or that other individuals would also have been at

risk as a result of the respondent’s medical condition.

Petitioner argues only that it was entitled to refuse to hire

respondent (and to direct its contractor to fire him) based

on its own conception of respondent’s best interest. In

this narrow context, the court of appeals concluded that

the ADA provides no defense to petitioner’s concededly

disability-based adverse employment actions. There is no

serious split in the circuits as to whether the ADA per-

mits an employer to raise a “threat to self” defense in this

type of case. Indeed, the only arguable conflict is with a

five-year-old, two-page per curiam opinion in which the

basic legal question does not appear to have been con-

tested. That is hardly the kind of deep and abiding split

in the circuits that cries out for this Court’s review.

Moreover, the opinion below rests firmly on the lan-

guage of the statute, see 42 U.S.C. § 12113(b); the indica-

tions in both the statutory findings and the legislative

history that paternalistic denials of opportunities to peo-

ple with disabilities were a principal target of the ADA,

see 42 U.S.C. § 12101(a)(5); H.R. Rep. No. 485, Part 2,

101st Cong., 2d Sess. 74 (1990); and the longstanding

principle that an employer may not justify intentional

discrimination against members of a protected class on

the basis of paternalistic concerns for class members’ own

safety, see International Union v. Johnson Controls, Inc., 499

U.S. 187, 202 (1991); Dothard v. Rawlinson, 433 U.S. 321,

335 (1977). Because the lower court’s opinion in this case

10

does nothing more than apply to the ADA the principles

that Dothard and Johnson Controls applied in the context of

gender discrimination under Title VII of the Civil Rights

Act of 1964, petitioner’s suggestion that it will lead to

“absurd results” and create “debilitating practical prob-

lems in the workplace” (Pet. 12, 21) (internal quotation

marks omitted) is particularly ill-taken. This Court

rejected many of the same arguments in Johnson Controls.

Particularly given the extremely small number of

reported cases in which employers have sought to justify

disability discrimination under the ADA based solely on

the risk an employee allegedly poses to him- or herself,

petitioner’s prediction that the court of appeals’ decision

will lead to dire practical consequences is entirely unwar-

ranted and provides no basis for this Court’s interven-

tion.

I. THIS CASE IMPLICATES NO SIGNIFICANT CON-

FLICT IN THE CIRCUITS WARRANTING THIS

COURT’S INTERVENTION

A. There Is No Serious Conflict Regarding

Whether The Statutory Defense For “Direct

Threat To Others” Encompasses An Employee’s

Direct Threat To His Own Safety

Title I of the Americans with Disabilities Act permits

an employer to defend against a claim of disability dis-

crimination on the ground that the plaintiff “pose[s] a

direct threat to the health or safety of others in the work-

place.” 42 U.S.C. § 12113(b) (emphasis added). Applying

the general principle that expressio unius est exclusio

alterius, the court of appeals concluded that this provision

11

does not permit an employer to defend against a claim of

disability discrimination on the ground that the plaintiff

poses a direct threat to his or her own safety. Pet. App.

6a-7a. Contrary to petitioner’s contention (Pet. 16-17),

this straightforward reading of the statutory text creates

no significant conflict with the rulings of other circuits.

Petitioner correctly notes that several cases in various

circuits have parroted the EEOC’s statement that the

direct threat defense embraces “significant risk[s] of sub-

stantial harm to the health or safety of the individual or

others.” 29 C.F.R. § 1630.2(r) (emphasis added). Several

other employment discrimination cases brought under

the Rehabilitation Act have made similar statements (Pet.

19-20). But those cases create no meaningful conflict with

the decision below, because they did not involve

instances in which an employer sought to justify disabii-

ity discrimination solely on the basis of the plaintiff’s

alleged threat to him- or herself.

In all but one of these cases (and the employer could

probably have made such an assertion in that one) the

employer asserted, and the court accepted, that the plain-

tiff posed a significant risk to others in the workplace as

well. See Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284,

1295 (10th Cir. 2000) (“Plaintiff was not a ‘qualified per-

son’ to work in a position as a blaster because the defen-

dants rightly considered that he was a direct threat to

others in the workplace.”); LaChance v. Duffy’s Draft

House, 146 F.3d 832, 836 (11th Cir. 1998) (stating that

“LaChance’s loss of consciousness was not only a danger

to himself, but due to the working environment, was a

danger to others as well” and concluding that there was

12

“no genuine issue of material fact as to whether LaC-

hance was a direct threat to others”); Daugherty v. City of

El Paso, 56 F.3d 695, 698 (5th Cir. 1995) (noting that the

ADA “defines a direct threat as a significant risk to the

health or safety of others that cannot be eliminated by

reasonable accommodation” and concluding that “a

driver with insulin dependent diabetes is not otherwise

qualified because his medical condition presents a genu-

ine substantial risk that he could injure himself or

others”) (internal quotation marks omitted); Chandler v.

City of Dallas, 2 F.3d 1385, 1395 (5th Cir. 1993) (same result

under the Rehabilitation Act, as to both insulin-depen-

dent diabetes and impaired vision); Chiari v. City of League

City, 920 F.2d 311, 315-316 (5th Cir. 1991) (stating that

“(t]he City’s sole justification for maintaining that Chiari

was not capable of doing the job was its concern that his

loss of balance would endanger him and others working

with him” and noting that Chiari’s own expert “agreed

with the conclusions reached by [the City’s experts]: that

Chiari could not move adequately to be a construction

inspector and that it was possible that he could be a

danger to others”).*

4 Two of the Rehabilitation Act cases on which petitioner

relies do not involve claims of employment discrimination at all,

but rather involve claims that universities discriminated against

students on the basis of asserted safety risks. See Knapp v.

Northwestern Univ., 101 F.3d 473 (7th Cir. 1996) (university's

refusal to permit student with heart condition to play on the

school’s basketball team); Doe v. New York Univ., 666 F.2d 761 (2d

Cir. 1981) (university’s refusal to permit student with

psychiatric disability to matriculate as medical student).

Because this case involves an interpretation of Title I of the ADA

- a statute whose application is limited to employment

13

Indeed, petitioner points to only one court of appeals

opinion that even purports to involve a pure threat-to-

self case. Moses v. American Nonwovens, Inc., 97 F.3d 446

(11th Cir. 1996) (per curiam). But that eight-paragraph per

curiam opinion does not create any clear or significant

conflict with the decision here, for two reasons. First, the

question whether the ADA permits an employer to

exclude an individual with a disability based on the risk

he poses to himself does not appear to have been con-

tested by the parties in Moses. For all that appears in the

court’s brief opinion, the plaintiff did not challenge the

employer's argument that it was permitted to fire him if

he posed a risk to himself; he appears to have argued

relationships — these cases present no conflict with the decision

below. Unlike employers in their relationships with employees,

schools routinely act paternalistically toward their students. A

conclusion that a university may act paternalistically when

dealing with its students thus says nothing about whether an

employer may act paternalistically when dealing with its

employees. Moreover, the Knapp court suggested that there

were limits to the degree to which even universities could make

paternalistic decisions. See Knapp, 101 F.3d at 486 (“[HlJere,

where Northwestern acted rationally and reasonably rather

than paternalistically, no Rehabilitation Act violation has

occurred.”) Finally, the direct threat discussion was not even

necessary to the decision in Knapp, which held that the plaintiff

had failed to establish a protected disability, see Knapp, 101 F.3d

at 482, and the university in Doe relied on the plaintiff's asserted

risk to others as well as herself, see Doe, 666 F.2d at 777 (“The

evidence in the record before us indicates that there is a

significant risk that Doe will have a recurrence of her mental

disorder, with resulting danger to herself and to others with

whom she would be associated as a medical student.”).

14

only that he did not in fact pose a risk to himself. See id. at

448 (“Moses maintains that as long as he followed

instructions and worked ‘downstream’ from the equip-

ment, there was no risk of harm.”). Accordingly, the court

simply stated, without any analysis, that “[aJn employer

may fire a disabled employee if the disability renders the

employee a ‘direct threat’ to his own health or safety.” Id.

at 447. In support of that assertion, the court cited 42

U.S.C. § 12113 and 29 C.F.R. § 1630.2(r). But it did not

even acknowledge, much less attempt to address, the

conflict between the statutory language, which does not

incorporate a “threat to self” defense, and the regulation,

which does. Such an unconsidered assertion, in a case in

which the point appears to have been uncontested, is not

the type of detailed, serious analysis that can create a

meaningful split in the circuits. Indeed, it is not even

clear that the Eleventh Circuit treats its Moses discussion

as having resolved the question. See Lowe v. Alabama

Power Co., 2001 WL 286612 at *3 n.1 (11th Cir. Mar. 23,

2001) (expressly reserving the question “whether 29

C.F.R. § 1630.2(r) impermissibly expands the definition of

direct threat provided by Congress in 42 U.S.C.

§ 12111(3)”).

Second, the fact that Moses was litigated as a threat-

to-self case appears itself to have been a fluke. The plain-

tiff in that case had epilepsy and worked at a job that

placed him in close proximity to a variety of dangerous

equipment. See Moses, 97 F.3d at 447-448. In at least one

other case involving an employee with uncontrolled epi-

lepsy in dangerous work settings, the same court that

decided Moses has ruled that the employee presented a

direct threat not just to himself but to others. See

15

LaChance, 146 F.3d at 836. Because the plaintiff in Moses

conceded “that there was a significant risk that if he had

continued working at American, he would have had sei-

zures on the job,” Moses, 97 F.3d at 447, there is every

reason to believe that, in the dangerous setting in which

he worked, he posed a threat to other individuals in the

workplace. In any event, it should be clear that the Elev-

enth Circuit’s decision in Moses did not involve the kind

of purely paternalistic exclusion effected by Chevron

here: firing an individual with a health condition that has

absolutely no effect on the employee's ability to perform

the job and that poses absolutely no risk to others in the

workplace, simply because of a fear that — at some inde-

terminate point in the future - workplace conditions

might pose a danger to the employee's health.

In the more than ten years since the ADA was

enacted, this is the only case in which a court of appeals

has been called upon squarely to address the question

whether the statute’s direct threat defense applies to such

purely paternalistic decisions to exclude people with dis-

abilities from employment opportunities. Of all the appel-

late cases cited by petitioner, in only one do the facts even

purport to present this issue, and in that case the issue

does not appear to have been contested and the

employer’s decision does not appear to have been purely

paternalistic. The court of appeals’ interpretation of the

ADA’s “direct threat” provision in this case thus does not

create the kind of meaningful split regarding a signifi-

cant, recurring issue that warrants plenary consideration

by this Court.

16

B. There Is No Conflict In The Circuits Regarding

Whether A Risk To Self Can Render An Indi-

vidual Not “Qualified” Under The ADA

1. Title I of the ADA protects only “qualified indi-

vidual[s] with a disability,” 42 U.S.C. § 12112(a), which

the statute defines as “individual[s] with a disability

who, with or without reasonable accommodation, can

perform the essential functions of the employment posi-

tion[s] such individual[s] hold[ ] or desire[ ],” 42 U.S.C.

§ 12111(8). Petitioner argues (Pet. 13-14) that the Seventh

Circuit's decision in Koshinski v. Decatur Foundry, Inc., 177

F.3d 599 (7th Cir. 1999), held that risk to an employee's

own health or safety can render that individual not “qual-

ified” under the ADA. The decision below, petitioner

contends, conflicts with that purported holding.

Petitioner misreads Koshinski. That decision involved

an individual whose disability rendered him presently

unable to perform the tasks of his job. Koshinski, whose

job of “cupola operator” imposed exceptional physical

demands, id. at 600, had a form of degenerative osteo-

arthritis that left him “in constant pain from which he

could get no relief.” Id. at 602. As the Seventh Circuit

concluded, Koshinski’s own detailed statements about his

condition in an application for disability benefits

“show[ed] Koshinski believed he could no longer operate

the cupola.” Id. at 603. And Koshinski “flat out admitted

at his deposition that from February 5 through at least

May 16, when he filed his application for disability bene-

fits, he was incapable of meeting the rigorous demands of

the cupola operator position.” Ibid.

17

Koshinski thus held that an employee may not be

“qualified” for a position where his disability causes him

sufficient pain that he is no longer capable of meeting the

physical demands of that job. But it did not hold that an

employee who is fully capable of carrying out all job

tasks may be deemed un-“qualified” based on the purely

paternalistic concern that at some undetermined point in

the future he may suffer harm in the workplace. To the

contrary, the Koshinski court expressed its disapproval of

such paternalistic discrimination. In response to

Koshinski’s argument “that the ADA is not a paternalistic

statute designed to protect a disabled person from him-

self, and that an employee should not be fired or other-

wise denied employment because he may become

unwilling to do his job at some point in the future,” the

court accepted the legal premise but concluded that it did

not fit the facts of the case (ibid.):

In principle we do not disagree with Koshinski’s

argument. It would be hard to imagine, for

example, -that a court would sanction an

employer's decision to fire a qualified employee

simply because his degenerative heart disease

makes a future heart attack inevitable. But here

the record firmly established that Koshinski

could not perform the essential functions of his

job when the foundry decided to let him go.

This case, unlike Koshinski, is directly analogous to the

hypothetical case of the employee with degenerative

heart disease. Because Koshinski thus expressly distin-

guished the type of fact setting at issue here, it is not in

conflict with the decision below.

18

2. Petitioner attempts to manufacture a circuit split

by asserting that the decision below conflicts with cases

in two circuits that held that the risk an employee poses

to others may in some circumstances render that

employee un-“qualified,” wholly apart from any direct

threat analysis. Pet. 14, 17 (citing EEOC v. Exxon Corp.,

203 F.3d 871 (5th Cir. 2000); EEOC v. Amego, Inc., 110 F.3d

135, 142-144 (1st Cir. 1997)). But the court of appeals’

opinion in this case did not disagree with those rulings.

To the contrary, it properly deemed them “irrelevant”

because they did not address employer claims that a

possible future risk to an employee's own health or safety

is sufficient to render that employee un-“qualified” under

the ADA. Pet. App. 17a n.11. Contrary to petitioner’s

repeated assertion, the court of appeals in this case did

not hold “that satisfying the demands of the ‘direct

threat’ defense is the ‘exclusive’ way in which employers

may take account of safety concerns.” Pet. 17; see also id.

at 21, 29. The decision below held only that “risk to self”

cannot in and of itself render an individual un-“quali-

fied.” See Pet. App. 17a (“Given that not posing a risk to

one’s own health or safety cannot in itself constitute an

essential job function, it is clear that Chevron’s reason for

refusing to hire Echazabal is not related to Echazabal’s

ability to perform the essential functions of the job for

which he applied.”). It accordingly created no conflict

with cases like Amego and Exxon that held that a risk to

others may in some circumstances render an individual

unable to perform essential functions of a job, and hence

render such an individual un-“qualified” for the job.

The absence of any conflict is clear from an examina-

tion of the Amego and Exxon cases. In Amego, the court

19

held that among the “essential functions” of the job of

“team leader” at a residential facility for people with

severe disabilities was the responsibility to “administer[ ]

vital medications” to the facility's residents. Amego, 110

F.3d at 137, 144. The court concluded that the complain-

ant’s inability to be trusted to perform that function not

only affected the residents’ safety, but also rendered the

complainant un-“qualified” to perform her job. See id. at

144 (“The precise issue here concerns the employer's

judgment that Gugliemi could not be trusted to handle

the medication-related functions of her job. In this case, a

failure to perform an essential function - overseeing and

administering medication - would necessarily create a

risk to others.”). The court of appeals’ narrow ruling here

- that an employer may not define the “essential func-

tions” of the job to include the condition that performing

the job not impose a risk on the employee - says nothing at

all about the circumstances in which the “essential func-

tions” of the job might, as in Amego, require attention to

the safety of others.

Exxon, too, creates no conflict. There, the court held

that the “direct threat” test applies only when “an

employer responds to an individual employee’s supposed

risk that is not addressed by an existing qualification

standard” previously put in place by that employer.

Exxon, 203 F.3d at 875. When an employer determines that

an employee with a disability cannot satisfy a pre-exis-

ting “safety-based qualification standard[]” that is

“applicable to all employees of a given class,” ibid., the

court ruled, the employee will be deemed un-“quali-

fied”so long as the “across-the-board” safety standard is

“job-related and consistent with business necessity,” 42

20

U.S.C. § 12113(a); see Exxon, 203 F.3d at 875. Applying

this individual-decision/across-the-board-standard dis-

tinction, the court concluded that Exxon’s rule that “per-

manently removes any employee who has undergone

treatment for substance abuse from certain safety-sensi-

tive, little-supervised positions” fell on the across-the-

board-standard side of the line. Accordingly, the court

remanded for application of the business necessity test.

Exxon, 203 F.3d at 872, 875. But even if petitioner’s deci-

sion to exclude respondent reflected application of some

across-the-board requirement rather than an individu-

alized decision (which is far from clear), Exxon holds only

that courts must evaluate that decision under the “job-

related and consistent with business necessity” test — not

that courts must uphold that decision. For reasons we

discuss in the next part, a purely paternalistic require-

ment that an employee have no condition that might pose

risks to his or her health at some point in the future could

not satisfy the “job-related and consistent with business

necessity” test. Nothing in Exxon is to the contrary.

Il. THE COURT OF APPEALS CORRECTLY INTER-

PRETED THE STATUTE TO BAR A “THREAT TO

SELF” DEFENSE IN THIS CASE

Petitioner argues (Pet. 21-30) that the decision below

reflects an incorrect interpretation of the relevant provi-

sions of the ADA. Given the lack of any true conflict in

the circuits, and the extremely small number of cases that

have directly presented this issue, petitioner’s argument

21

amounts to nothing more than a request for «rror correc-

tion that does not warrant plenary review by this Court.

In any event, petitioner is wrong on the merits.

A. No Provision Of The ADA Permits An

Employer To Exclude An Individual With A

Disability From Employment Solely Because

Of A Fear That, At Some Point In The Future,

The Employee Might Experience Adverse

Health Effects

As noted, this case involves an extremely narrow fact

setting: an employer’s decision to exclude an individual

with a disability from employment solely because of a

concern that, at some indeterminate point in the future,

workplace conditions might cause harm to that individ-

ual. This case does not involve an employee who was

presently unable to perform the job, nor even one for

whom inability to perform the job was imminent. In these

narrow circumstances, the court of appeals correctly held

that no provision of the ADA permits the employer to

exclude the employee with a disability. Pet. App. 4a-18a.

In defending its disability-based decision to exclude

respondent, petitioner relies on three different provisions

of the ADA. See Pet. 22. But none of these provisions can

bear the weight petitioner places on it.

1. The first provision relied on by petitioner, the

“direct threat” provision of 42 U.S.C. § 12113(b), is clearly

unavailing. By its terms, that provision affords a defense

only when the employee “pose[s] a direct threat to the

health or safety of other individuals in the workplace.”

Ibid. (emphasis added). Given the absence of any refer-

ence in that provision to risks an employee poses to him-

22

or herself, the expressio unius canon must mean at least

that the direct threat provision cannot of its own force

provide a defense to an employer who excludes an

employee with a disability on the basis of a feared “threat

to self.” The force of the expressio unius argument is

particularly strong given the evidence, carefully can-

vassed by the court of appeals, that the omission of

threats to self from the direct threat provision was any-

thing but inadvertent. Pet. App. 7a-10a.

Petitioner seems to concede that the direct threat

provision by its own force cannot justify the disability-

based exclusion Chevron effected here. Petitioner appears

to argue only that the limited scope of the direct threat

provision does not foreclose an attempt to justify

employee-safety-based discrimination under other provi-

sions of the statute. Pet. 22-23. There are good reasons to

doubt that petitioner’s argument on this score is correct.®

But the court of appeals had no need to — and did not -

resolve this question, because it concluded that neither of

the other statutory provisions on which petitioner relies

supported its decision to exclude respondent from its

refinery

5 Because the direct threat provision, unlike the other

provisions relied on by petitioner, specifically addresses safety-

based exclusions, petitioner's argument is inconsistent with the

canon of interpretation that holds that the specific controls the

general. Under petitioner's argument, moreover, the direct

threat provision would be superfluous, for there is no reason

why an employee’s risk to himself could render that employee

un-“qualified” but the employee’s risk to someone else could

not do so as well.

23

2. Petitioner relies on two related provisions of the

statute: Section 12112(a), which extends statutory protec-

tion only to a “qualified individual,” 42 U.S.C. § 12112(a);

and Section 12113(a), which permits an employer to

impose “qualification standards” that are “shown to be

job-related and consistent with business necessity,” 42

U.S.C. § 12113(a). The court of appeals properly con-

cluded that these provisions cannot support petitioner’s

disability-based exclusion of respondent.

Relying on the definition of “qualified” in Webster’s

Third New International Dictionary, petitioner contends

(Pet. 23) that the ADA’s “plain language” establishes

“that danger to self may disqualify a person for employ-

ment.” Whether or not the Webster’s Third definition of

“qualified” supports petitioner’s position, the ADA’s defi-

nition of “qualified” does not. The ADA defines a “quali-

fied” individual as one who can perform the “essential

functions” of his or her job. 42 U.S.C. § 12111(8). Thus, to

show that respondent was not qualified under the defini-

tion specifically set forth in the ADA, petitioner cannot

simply assert that a risk that an individual will suffer

harm at some point in the future renders that individual

“unfitted” for a job in some general sense. Cf. Pet. 23.

Rather, petitioner must establish that respondent’s ability

to perform his job without posing a risk of harm to

himself at some point in the future was an “essential

function” of his job.

As the court of appeals correctly concluded, “not

posing a risk to one’s own health or safety cannot in itself

constitute an essential job function.” Pet. App. 17a. First,

the risk that an employee might suffer harm at some

24

future point has nothing to do with that employee’s pre-

sent ability to perform the productive functions of the

job. See Pet. App. 15a.° Second, in its case law rejecting

paternalistic discrimination under Title VII of the Civil

Rights Act of 1964 - a principal model for Title I of the

ADA - this Court rejected an argument almost identical

to petitioner’s: “It is word play to say that ‘the job’ at

Johnson [Controls] is to make batteries without risk to

fetuses in the same way ‘the job’ at Western Air Lines is

to fly planes without crashing.” Johnson Controls, 499 U.S.

at 207 (internal quotation marks omitted).? Third,

the statutory finding that “overprotective rules and

6 If the employee would plainly experience imminent harm

that would prevent him or her from performing the productive

functions of the job, the employer would be on much stronger

ground in deeming that employee un-“qualified.” But that is a

far cry from petitioner's fear in this case that respondent might

experience such debilitating harm at some indeterminate point

in the future. See Pet. App. 17a-18a (“Echazabal worked for

Irwin at the coker unit, performing work similar to the job for

which he applied, long after he was diagnosed with hepatitis.

There is no evidence that the health of his liver ever affected his

ability to do the job.”).

7 See also id. at 206 (“We reiterate our holdings in [Western

Air Lines, Inc. v.] Criswell[, 472 U.S. 400 (1985),] and Dothard that

an employer must direct its concerns about a woman’s ability to

perform her job safely and efficiently to those aspects of the

woman's job-related activities that fall within the ‘essence’ of

the particular business.”); cf. Dothard, 433 U.S. at 335 (stating

that “[iJn the usual case, the argument that a particular job is too

dangerous for women may appropriately be met by the

rejoinder that it is the purpose of Title VII to allow the

individual woman to make that choice for herself” but

upholding exclusion of women from certain prison guard

positions based on the risk to general prison security).

25

policies” have constituted a significant means by which

people with disabilities have experienced disadvantage,

42 U.S.C. § 12101(a)(5),8 suggests that Congress would

not have intended to permit employers to impose quali-

fication standards that denied employment opportunities

to people with disabilities “for their own good.” For

precisely the same reasons, a requirement that peti-

tioner’s employees have no disability that might in the

future create a risk to their own health cannot be justified

as a “qualification standard” that is “job-related and con-

sistent with business necessity” under Section 12113(a).

3. Petitioner contends (Pet. 24-26) that the decision

below creates “absurd consequences” by imposing an

obligation on employers under the ADA that is inconsis-

tent with federal and state workplace safety laws and

State tort law. Petitioner is incorrect.

Petitioner points to several OSHA standards that

specifically exclude people with particular identified dis-

abilities from particular identified jobs (Pet. 25). To the

extent that an employer relies on such a specific standard

promulgated by a federal regulatory agency, this Court’s

decision in Albertson's, Inc. v. Kirkingburg, 527 U.S. 555,

570-578 (1999), would appear to shield the employer’s

decision from attack under the ADA. But petitioner can-

not take advantage of that shield here, for it has never

8 See also H.R. Rep. No. 485, Part 2, 101st Cong., 2d Sess. 74

(1990) (“[E]mployment decisions must not be based on

paternalistic views about what is best for a person with a

disability. Paternalism is perhaps the most pervasive form of

discrimination for people with disabilities and has been a major

barrier to such individuals.”).

26

purported to rely on any specific OSHA standard exclud-

ing people with hepatitis C from oil refinery jobs. Peti-

tioner instead points to the Occupational Safety and

Health Act’s imposition of a general duty on employers

to provide a safe workplace. Pet. 24-25. But the decision

below does not prohibit employers from making work-

places safe for employees with disabilities. It simply bars

them from doing so through the simple expedient of

excluding employees with disabilities (at least outside the

context, shielded by Albertson's, of a specific decision by

OSHA that people with a particular identified condition

cannot safely work in particular identified jobs). The

assertion that this result places employers in an intoler-

able position is speculative at best; given the apparently

small number of “threat to self” cases that have arisen

under the ADA, the resolution of such a speculative

conflict between statutes provides no reason for this

Court to grant certiorari. The same point applies to the

asserted conflict between the ADA and state workplace

safety and tort laws (which state laws would, in any

event, be preempted to the extent of any conflict, see Pet.

App. 13a (citing Johnson Controls, 499 U.S. at 209-210)).

4. Petitioner argues (Pet. 24) that the court of

appeals’ decision is inconsistent with longstanding inter-

pretations of the Rehabilitation Act. As we have

explained, see pages 12-13 and n.4, supra, that is incor-

rect; the decision below creates no clear conflict with any

other circuit’s interpretation of the Rehabilitation Act's

prohibitions on employment discrimination. Even if the

decision below were inconsistent with pre-ADA inter-

pretations of the Rehabilitation Act, however, that would

be of no moment, for the ADA’s text would appear to

27

reflect a congressional decision to narrow the scope of the

safety-risk defense that might previously have been avail-

able under the Rehabilitation Act.

The Rehabilitation Act did not define the term “oth-

erwise qualified individual,” but implementing regula-

tions promulgated by the EEOC in 1978 defined the term

to mean an individual who “can perform the essential

functions of the position in question without endangering

the health or safety of the individual or others.” 43 Fed.

Reg. 12293, 12295 (Mar. 24, 1978). When it enacted Title |

of the ADA in 1990, Congress made three crucial deci-

sions. First, rather than simply rely on prior regulatory

interpretations of the term, Congress added its own defi-

nition of “qualified individual.” 42 U.S.C. § 12111(8).

Second, Congress omitted any discussion of health or

safety risks from that definition and instead defined the

term solely by reference to the ability to perform a job’s

“essential functions.” Id. And third, Congress added a

separate “direct threat” provision, expressly denominated

as a defense to liability, that spoke only of threats to

“other individuals in the workplace.” 42 U.S.C.

§ 12113(b). Even if prior constructions of the Rehabilita-

tion Act would have permitted an employer to justify

exclusion of an employee with a disability based on a fear

that the employee posed a risk to hirn- or herself, these

three changes clearly warrant a different result after

enactment of the ADA.

28

B. The Court Of Appeals Properly Declined To

Accord Deference To The EEOC’s Manifestly

Erroneous Interpretation Of The Direct Threat

Provision

Petitioner argues (Pet. 28-29) that the court of appeals

should have deferred to the EEOC’s regulation that

defines “direct threat” to include “a significant risk of

substantial harm to the health or safety of the individual

or others.” 29 C.F.R. § 1630.2(r); accord 29 C.F.R.

§ 1630.15(b)(2).9 The court of appeals properly declined to

defer to this regulation, because it is inconsistent with the

plain text of the statutory “direct threat” provision it

purports to interpret (Pet. App. 1la-13a), as well as all of

the other indicia of statutory meaning discussed above.

See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

125-126 (2000) (“[A]lthough agencies are generally enti-

tled to deference in the interpretation of statutes that they

administer, a reviewing ‘court, as well as the agency,

* Petitioner also relies (Pet. 28), on the EEOC regulation

that defines “qualification standards” to include “physical,

medical, safety, and other requirements” imposed by an

employer. 29 C.F.R. § 1630.2(q). But that provision says nothing

about whether an employer may impose “physical, medical, [or]

safety requirements” regarding the risk an employee poses to

him- or herself. On the face of it, there is no reason to read that

regulation as referring to anything other than medical and

safety standards, like that at issue in Albertson's, that are

principally designed to protect the public. Because the

regulations discussing the scope of the “direct threat” defense

are the only ones in which the EEOC purports to authorize a

“threat to self” defense, we focus our discussion on those

regulations.

29

must give effect to the unambiguously expressed intent of

Congress.’ ”) (quoting Chevron, 467 U.S. at 842-843). .

Indeed, petitioner does not even attempt to defend

the EEOC regulation as a proper interpretation of the

direct threat provision in Section 12113(b) - even though

on its face the regulation purports to define “direct

threat,” see 29 C.F.R. § 1630.2(r); accord 29 C.F.R.

§ 1630.15(b)(2). Rather, petitioner argues (Pet. 28-29) that

the EEOC’s expansion of the statutory “direct threat”

provision is justified as an interpretation of the more

general “qualification standards” language in Section

12113(a). But the EEOC has itself rejected an interpreta-

tion of the general “qualifications standards” language as

encompassing safety risks. As this Court has noted, the

EEOC has consistently interpreted the direct threat provi-

sion of Section 12113(b) as providing the exclusive means

of justifying safety-based disability discrimination under

ADA Title I. See Albertson's, 527 U.S. at 569 & n.15. In the

Exxon case, the EEOC argued specifically (albeit unsuc-

cessfully) that an employer could not justify safety-based

discrimination under Section 12113(a)’s general “quali-

fication standards” provision without engaging in an

independent “direct threat” analysis. See Exxon, 203 F.3d

at 873 (citing both the EEOC’s litigating position and the

interpretive guidance that accompanies 29 C.F.R.

§ 1630.15(b) and (c)). Ironically, although petitioner advo-

cates deference to the EEOC’s regulation, petitioner speci-

fically rejects the EEOC’s interpretation of the statutory

provision on which Chevron purports to rely (Pet. 29-30).

Because the EEOC’s regulation is inconsistent with

the language of the statutory provision that regulation

30

purports to interpret, and the EEOC has denied the appli-

cability of the statutory provision on which petitioner

seeks to ground that regulation, the court of appeals

properly declined to accord deference to the administra-

tive interpretation in this case. See Public Employees Retire-

ment Sys. v. Betts, 492 U.S. 158, 174-175 (1989) (where

regulatory “cost-justification” requirement could not be

squared with the “subterfuge” language it purported to

interpret in the Age Discrimination in Employment Act,

Court would not defer to that requirement as an inter-

pretation of “employee benefit plan” language it did not

purport to interpret).

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

Cua! R. Fetpsitum Larry MINsky

GEORGETOWN University Law Counsel of Record

CENTER Lemaire, Faunce, Pincet &

600 New Jersey Ave., N.W. Sincer, P.C.

Washington, D.C. 20001 17785 Center Court Drive,

(202) 662-9595 Suite 250

Cerritos, CA 90703

SAMUEL R. BAGENSTOS (562) 916-7449

1545 Massachusetts Ave.

Cambridge, MA 02138

(617) 495-9299