Bearded firefighter’s late request for interlocutory appeal nixes his ADA skin condition claim

By Joy Waltemath

By Cynthia L. Hackerott, J.D.

Because a former firefighter’s application for an interlocutory appeal was untimely, the D.C. Circuit lacked jurisdiction to review a lower court’s order rejecting the employee’s assertion that the issue of whether his skin condition constituted a disability should be evaluated under the standards of the ADAAA, rather than the narrower pre-ADAAA definition of disability. The D.C. Circuit rejected his contention that the lower court’s notice of appeal and order denying reconsideration, both timely transmitted to the appeals court by the district court, served the same purpose as an application. These items were not “functional equivalents” to an application because it is the appealing party, not the lower court, that must file a petition for permission to appeal with the circuit clerk (Kennedy v. Bowser, December 9, 2016, Henderson, K).

Skin condition. The employee, a firefighter with the District of Columbia fire department, had a skin condition known as pseudofolliculitis barbae, which causes ingrown hairs, irritation, sores and infection from shaving. Although he had complied with the department’s grooming policy for several years, in 2008, his condition led to an infected spot on his face that did not heal because of his close shaving. His dermatologist told him that he had to maintain facial hair of at least one-eighth inch. Heeding his physician’s recommendation, the employee arrived at work with a beard. Although he provided documentation of his physician’s opinion, the fire department denied his accommodation request and temporarily suspended him.

Following the effective date of the ADAAA on January 1, 2009 through 2013, the employee continued to work at the department between absences due to suspension, stress, and depression. He passed a “fit test” demonstrating that he could safely wear a respirator over his beard, but the department nevertheless limited him to office duty, training and fire inspections. At least twice after January 1, 2009, he sought an accommodation permitting him to work with a beard full time in the field. The department either denied the requests or did not act on them. He resigned in May 2013 and sued the District of Columbia, the department, and several officials. The trial court dismissed all defendants except the District.

Lower court ruling. At issue were alleged violations of Sec. 1983, the D.C. Human Rights Act, and the Rehab Act, all of which rest on the employee’s claim that his condition is a disability within the meaning of the ADA. The trial court found his skin condition did not qualify as a disability, evaluating his condition under the ADA’s relatively narrow definition of “disability” that existed prior to the ADAAA. The allegedly discriminatory conduct took place before the new law went into effect, reasoned the court, and the employee’s later requests that the fire department reverse its initial decision did not create new instances of discrimination. The employee moved for reconsideration and, in the alternative, asked the court to amend its order by certifying it for interlocutory appeal pursuant to Sec. 1292(b). The district court denied reconsideration but certified for immediate appeal under Sec. 1292(b) the issue whether the expanded ADAAA definition of disability applied.

Attempt to perfect appeal. 28 U.S.C. Section 1292(b) provides an appeals court with jurisdiction to review an interlocutory order only if application is made to it within ten days after entry of the order. Under Federal Rule of Appellate Procedure 5, which implements section 1292(b), a notice of appeal need not be filed. Still, the employee filed a notice of appeal in the district court on November 18, 2015, two days after the order denying reconsideration. The next day, November 19, the district court transmitted the notice and the order to the D.C. Circuit. However, the employee did not file his application in the D.C. Circuit until December 30, several weeks after the ten-day deadline had passed. In early January 2016, the District filed an opposition asking that the application be denied as untimely. That was the issue before the D.C. Circuit here.

“Functional equivalent.” The employee did not dispute that his application was late and therefore inadequate under Sec. 1292(b); rather, he argued that the notice of appeal and the order denying reconsideration, both of which were transmitted to the D.C. Circuit within the statutory period, serve the same purpose as an application and can be treated as such. Disagreeing, the D.C. Circuit found that even assuming the “functional equivalent” of an application satisfies Sec. 1292(b) and Rule 5 of the Federal Rules of Appellate Procedure (an issue which the court declined to rule upon), the notice and order here did not meet that description.

Noting that it had not previously addressed whether a notice of appeal, accompanied by the order certifying an appeal, can satisfy Sec. 1292(b) and Rule 5 if the documents are transmitted to the appeals court within the statutory period, the D.C. Circuit observed that its sister circuits have taken divergent approaches to the application requirement. Some, such as the Third and Sixth Circuits, have strictly construed it, while others, such as the Second, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, have held, or at least suggested, that they do not require strict compliance if a “functional equivalent” serves as the application. Yet, the D.C. Circuit determined that it need not choose between the competing approaches because, even under the more flexible approach, the documents the district court transmitted to the D.C. Circuit were not equivalent to an application.

Appealing party must file application. The baseline requirement under Rule 5 is that the party must file a petition for permission to appeal with the circuit clerk. Here, the only thing the appellant filed within the statutory period was the notice of appeal, which was not directed to the circuit court and did not request permission to appeal; therefore, it did not function as an application. Further, the appeals court said it did not “have any business rewriting Rule 5 to permit a would-be appellant to enlist the district court to serve as his proxy by the latter’s transmitting the notice of appeal and the order under review as a rough substitute for an application.”

The district court’s order explained why, in the court’s view, the case met the statutory criteria for certification under Sec. 1292(b), which was that the ADAAA issue was a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. Again emphasizing that Rule 5 requires that a party file the petition, the D.C. Circuit explained that this means the party must explain why the appeal should be allowed and is authorized by a statute or rule. Put another way, because Rule 5 demands the applicant’s advocacy, transmission of the district court’s views does not suffice. Indeed, the D.C. Circuit observed, the U.S. Supreme Court “has all but stated as much” in its 1978 decision in Coopers & Lybrand v. Livesay, where the Court wrote that even if the district judge certifies the order under Sec. 1292(b), the appellant still has the burden of persuading the court of appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.

Appellate court’s discretion. The D.C. Circuit found that its conclusion was reinforced by the discretionary nature of Sec. 1292(b). Similar to the High Court’s discretion to grant or deny certiorari under 28 U.S.C. § 1254(1), a circuit court may deny a Sec. 1292(b) appeal for any reason, including docket congestion, the D.C. Circuit explained, adding that appeals courts are not limited to the statutory criteria that govern a district court’s certification decision. As such, a district court, in certifying an appeal, may not ordinarily discuss all of the considerations bearing on why the appeal should be allowed. That is the appealing party’s task. In sum, neither the employee’s notice of appeal nor the district court’s order performed the required adversarial functions because the notice was pro forma, and the order (as it should have) addressed only the statutory criteria with no reference to prudential considerations that might cause the appeals court to wait to rule until final judgment.

Moreover, the employee’s failure to file a proper application within the statutory period deprived the District of an opportunity to respond promptly. The D.C. Circuit noted that “the point of the ten-day deadlines for both the application and the answer is to ensure a fast and focused process” for the appeals court to decide, before merits briefing, whether to review the matter at all. Here, the employee’s untimeliness thwarted that threshold process.

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