MAYER, BROWN & PLATT
SUPREME COURT DOCKET REPORT
1998 Term, Number 6 / January 11, 1999
On Friday, January 8, the Supreme Court granted certiorari in
five cases that are of potential interest to the business community, and ordered
a slightly expedited briefing schedule. The five cases fall into two groups of
related cases. Amicus briefs in support of the petitioners are due on February
22, 1999, and amicus briefs in support of the respondents are due on March 24.
On Monday, January 11, the Court adopted various revisions to its Rules
(effective May 3, 1999), including changes to the typeface that must be used in
printed briefs. Any questions about the granted cases or the Court's rule
changes should be directed to Alan Untereiner (202-778-0656) or Donald Falk
(202-778-0174) in our Washington office.
with Disabilities Act — Successfully Treated Medical Conditions as
The Americans with Disabilities Act (ADA)
prohibits employers from discriminating "against a qualified individual with a
disability." 42 U.S.C. § 12112(a). The ADA defines a disability as a "physical
or mental impairment that substantially limits one or more of the major life
activities of such individual." Id. § 12102(2). A plaintiff invoking the
ADA bears the burden of proving that he or she has, or is "regarded as having,"
a disability. Id. § 12102(2)(C). The Supreme Court granted certiorari in
three cases to decide whether the determination that an employee has a
disability under the ADA must be made without regard to the effect of mitigating
measures such as medicines or prosthetic devices. See Sutton v. United
Air Lines, No. 97-1943; Murphy v.
United Parcel Service, No. 97-1992; Albertsons, Inc. v.
Kirkingburg, No. 98-591. In Murphy, the Court will also decide whether an
employee has been "regarded as having" a disability if the employer terminates
the employee for failing to satisfy physical standards established by an
independent third party such as a federal agency. And in Albertsons, the Court
will also decide whether an employer that relies on a government agency standard
violates the ADA if it does not accept the agency's waiver of that standard as
to a particular employee.
The plaintiffs in Sutton are twin sisters who
applied for employment as commercial pilots with United Air Lines (UAL). UAL
refused to hire them on the ground that each sister's uncorrected vision —
20/200 in one eye, 20/400 in the other — fell far below UAL's minimum vision
standard for pilots. The sisters sued UAL, alleging a violation of the ADA, but
the district court granted summary judgment in UAL's favor. The court reasoned
that the sisters' myopia, although a physical impairment within the meaning of
the ADA, was not "substantially limiting" because it could be completely
alleviated through the use of corrective lenses. The Tenth Circuit affirmed,
reasoning that the ADA is "concerned with whether the impairment affects the
individual in fact, not whether it would hypothetically affect the individual
without the use of corrective measures." 130 F.3d 893, 902 (1997). The court of
appeals refused to defer to an EEOC advisory opinion suggesting that disability
determinations should not take into account the effectiveness of mitigating
measures like corrective lenses.
Albertsons also involves a vision
impairment. Albertsons employed Hallie Kirkingburg as a truck driver. His
corrected vision is 20/20 in the right eye but his left eye corrects to no
better than 20/200 because of amblyopia, commonly known as "lazy eye."
Albertsons required its drivers to hold a medical certification under Department
of Transportation (DOT) commercial vehicle regulations. Although Kirkingburg had
been certified in the past because of physicians' errors, his impairment
eventually kept him from being recertified. Kirkingburg obtained a waiver from
DOT, however, after demonstrating that he could operate a truck safely despite
his impairment. Notwithstanding this waiver, Albertsons terminated Kirkingburg.
After Kirkingburg sued his former employer under the ADA, the district court
granted summary judgment to Albertsons, finding that Kirkingburg was not
qualified for employment because of his visual impairment. The Ninth Circuit
reversed. 143 F.3d 1228 (1998). The court of appeals held that Kirkingburg was
disabled within the meaning of the ADA because he "sees using only one eye"
while "most people see using two." Id. at 1232. The Ninth Circuit placed
no weight on the fact that Kirkingburg's visual cortex "compensates for his
disability." Ibid. The Ninth Circuit also held that the DOT's waiver of
its regulations as they applied to Kirkingburg prevented Albertsons from
justifying its dismissal of Kirkingburg on the ground that he could not obtain
DOT certification. Id. at 1234-1236.
The third case, Murphy, also
involved DOT medical certification. United Parcel Service (UPS) hired Vaughn
Murphy as a mechanic. Because his job would require him to road-test vehicles
from time to time, UPS required Murphy to obtain a DOT medical certification
before beginning work. Without medication Murphy has very high blood pressure
(250/160); even with medication, his blood pressure exceeds the DOT standard of
160/90. DOT issued Murphy a health certification only because it overlooked his
non-compliant blood pressure. After discovering this error, UPS terminated
Murphy's employment when his retested blood pressure also exceeded the DOT
Murphy sued under the ADA. The district court granted summary
judgment to UPS, holding that Murphy was not disabled within the meaning of the
ADA because his medication enabled him to perform all of the major life
functions. 946 F. Supp. 872 (D. Kan. 1996). The district court also rejected
Murphy's claim that, as a result of his inability to qualify for DOT
certification, UPS regarded him as having a disability, drawing a distinction
between regarding Murphy as "disabled" and regarding him merely as "not
certifiable" under DOT regulations. The Tenth Circuit affirmed in an unpublished
opinion. UPS did not oppose certiorari on the question whether Murphy's
treatable high blood pressure rendered him disabled under the ADA.
United States and the EEOC supported certiorari and reversal in Murphy (and
supported holding Sutton until Murphy was decided). In the government's view,
disability determinations should not take mitigating measures into account. The
government also contends that, as a matter of law, UPS "regarded" Murphy as
disabled by virtue of his inability to obtain DOT certification.
is a deep conflict on the principal question on which review was granted in
these three cases. The Sixth and Tenth Circuits appear to be alone in holding
that an employee is not disabled if his impairment can be successfully treated
through medication or prosthetic devices. The Ninth Circuit's position that a
"disability" includes any condition that makes an individual perform a major
life activity "differently" from most people appears to have support only in the
Eighth Circuit. See Doane v. City of Omaha, 115 F.3d 624 (8th Cir.
1997), cert. denied, 118 S. Ct. 1349 (1998). Most circuits agree with the Eighth
and Ninth Circuits that disability determinations should be made without regard
to mitigation. See, e.g., Arnold v. United Parcel Service, 136
F.3d 854 (1st Cir. 1998); Roth v. Lutheran General Hospital, 57
F.3d 1446 (7th Cir. 1995). The Fifth Circuit has gone its own way, considering
the efficacy of mitigating treatments on serious conditions but not on others.
See Washington v. HCA Health Services, 152 F.3d 464 (5th Cir.
1998). The petitions did not identify any conflicting decisions on the questions
relating to government health standards.
These cases are of enormous
interest to all employers. As ADA litigation becomes widespread, employers are
increasingly caught between their obligations to conduct business safely and
their obligations to accommodate their employees' physical and mental
disabilities. Employers may wish to be heard on the question whether the
protected class of the "disabled" should be expanded to include all persons with
common and fully correctable physical impairments.
ELEVENTH AMENDMENT — Amenability of States to Damages Actions for Patent
Infringement and Unfair Competition.
The Eleventh Amendment
immunizes unconsenting States from suits for damages in federal courts. Three
years ago the Supreme Court held that Congress can abrogate that immunity only
through legislation enacted pursuant to Section 5 of the Fourteenth Amendment,
which authorizes Congress to enforce due process rights and other limits on
state action embodied in that Amendment. Seminole Tribe of Florida v.
Florida, 517 U.S. 44 (1996). The Court granted certiorari in College
Savings Bank v. Florida Prepaid Postsecondary Education Expense
Board, No. 98-149, and Florida Prepaid Postsecondary Education Expense
Board v. College Savings Bank, No. 98-531, to determine the
constitutionality of Congress's explicit abrogation of Eleventh Amendment
immunity in two intellectual property laws: the Lanham Act, which governs
trademark infringement and other forms of unfair competition (No. 98-149), and
the Patent Code (No. 98-531).
College Savings Bank (CSB) sells financial
products designed to provide sufficient funds to cover the future costs of
college education. CSB has patented its method for administering these savings
programs. The State of Florida created the Florida Prepaid Postsecondary
Education Expense Board (Florida Prepaid) to market and sell tuition-prepayment
programs designed to provide sufficient funds to cover the future cost of
Florida colleges and universities. CSB sued Florida Prepaid in two separate
actions in the same federal district court. In one suit, CSB alleged that
Florida Prepaid had infringed its patent. In the other, CSB claimed that Florida
Prepaid had engaged in false advertising and unfair competition in violation of
Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
CSB's Lanham Act
complaint alleged that Florida Prepaid had made misstatements about its own
savings plans that constituted false advertising and unfair competition. The
district court dismissed the case. 948 F. Supp. 400 (D.N.J. 1996). The district
court held (1) that Congress's clear statement abrogating Eleventh Amendment
immunity for suits under the Lanham Act (see 15 U.S.C. §§1122, 1125(a)(2)) was
not a valid exercise of power under Section 5 of the Fourteenth Amendment, and
(2) that Florida Prepaid had not waived its Eleventh Amendment immunity by
voluntarily engaging in business after Congress had expressed its clear
intention to make States subject to the Lanham Act.
The Third Circuit
affirmed. 131 F.3d 353 (1997). The court of appeals held that "the right to be
free from unfair advertising * * * does not amount to "property" within the
meaning of the Fourteenth Amendment," so that the Lanham Act was not a valid
effort to prohibit the States from depriving citizens of property without due
process. Id. at 360. The Third Circuit also held that the doctrine of
constructive waiver articulated in Parden v. Terminal Ry. of Alabama
State Docks Dep't, 377 U.S. 184 (1964), did not apply because Florida
Prepaid was serving a core state function by ensuring that higher education was
affordable to all of its citizens. 131 F.3d at 362-365.
In the same
opinion that disposed of the Lanham Act case, the district court denied Florida
Prepaid's motion to dismiss the patent action on Eleventh Amendment grounds.
Florida Prepaid took an immediate interlocutory appeal to the Federal Circuit,
which affirmed. 148 F.3d 1343 (1998). The Federal Circuit held that Congress's
explicit abrogation of Eleventh Amendment immunity in patent suits (see 35
U.S.C. §§ 271(h), 296(a)) was a valid exercise of its power under the Fourteenth
Amendment because patent rights are well-established property rights. Id.
at 1349-1350. The Federal Circuit rejected Florida Prepaid's contention that
applying the patent laws to the States worked an end run around the Eleventh
Amendment because Congress established patent rights by statute and then
protected those statutory property rights by subjecting unconsenting States to
suit in federal court. That argument had been accepted by the Third Circuit in
the Lanham Act appeal, see 131 F.3d at 361, and by a Fifth Circuit panel that
upheld Eleventh Amendment immunity from liability under the Copyright Code, see
Chavez v. Arte Publico Press, 157 F.3d 282, 289 (1998), rehearing
en banc granted (Oct. 1, 1998).
The commercial activities of States
inevitably compete with private businesses. This case accordingly is of
substantial importance not only to States, but also to businesses that compete
with state-owned enterprises or that own intellectual property rights in any
field in which States may take a commercial interest.
This Mayer, Brown, Rowe & Maw Supreme Court Docket Report provides information and
comments on legal issues and developments of interest to our clients and
friends. The foregoing is not a comprehensive treatment of the subject matter
covered and is not intended to provide legal advice. Readers should seek
specific legal advice before taking any action with respect to the matters