Before getting started on the blog entry of the week, next week is the Jewish new year. I want to take the opportunity to wish all of my Jewish brethren a happy and healthy new year for them and their families. It also means that no one should be surprise if the blog entry for next week goes up on Wednesday since Monday and Tuesday are the Jewish new year.

As I write this, Judge Kavanaugh is appearing before the United States Senate. Previously, I wrote about how then Judge Gorsuch might deal with persons with disabilities on the Supreme Court, and I promised I would do the same for Judge Kavanaugh. So, I did a search for the cases involving the ADA and the Rehabilitation Act to see how he went about dealing with the rights of persons with disabilities. I also looked into Chevron and Auer deference as well. The blog entry will be divided into two categories. First, the cases and a brief description of what Judge Kavanaugh decided either by joining an opinion, concurring, or dissenting. Second, overall themes of his jurisprudence. I will say that unlike Judge Gorsuch I don’t see an overriding judicial philosophy from the opinions, though there are certain themes that emerge.


The Cases

  1. In Adams v. Rice, Judge Kavanaugh joined an opinion written by Judge Tatel with Judge Henderson dissenting reversing summary judgment for the United States Foreign Service. The case involved a candidate for the United States Foreign Service being discriminated against on the basis of her had breast cancer. There are several things that are interesting about the case. First, the majority opinion held that cancer in remission is not a physical impairment. Second, the majority held that sexual relations is a major life activity. Third, a person with cancer in remission does have a record of an impairment. Finally, the majority opinion held that the employer’s knowledge of a physical or mental impairment is sufficient to trigger ADA coverage. That is, to trigger the ADA the employer did not need to know just how the physical impairment substantially limited a major life activity to have ADA obligations.
  2. In Johnson v. Interstate Management Company, LLC, Judge Kavanaugh wrote the opinion where he said: 1) he was not going to find a cause of action if the authority for that was not explicitly laid out in the statute; and 2) the plaintiff did not produce enough evidence to overcome the legitimate nondiscriminatory reason offered by the employer for termination as part of the McDonnell-Douglas process.
  3. In Koch v. Cox, Judge Kavanaugh joined an opinion with Judge Ginsburg and Judge Brown holding an acknowledgment of depression is not the same as putting a person’s mental health at issue where no emotional distress claim existed. The issue in the case was whether to quash a subpoena for the plaintiff’s therapist records. Also, in that case the court noted that it did consider the motivation of the litigant in revoking his consent that his therapist record be disclosed. The court believed that the motivations were not nefarious.
  4. In United States Department of State v. Coombs, Judge Kavanaugh joined an opinion with Judge Garland and Judge Silberman writing in reversing the District Court’s award for summary judgment on behalf of the United States Department of State. The holding of the case was the Foreign Service Board needed to consider the Rehabilitation Act as it goes about its business and had not properly done so.
  5. In Baloch v. Kempthorne, Judge Kavanaugh wrote the majority opinion holding that the plaintiff could not show any adverse action. Also, the plaintiff did not present sufficient evidence to show the employer’s reason for termination was not discriminatory under the McDonnell-Douglas scheme.
  6. In Stuart v. St. Elizabeth’s Hospital, Judge Kavanaugh wrote an opinion holding that a request for reasonable accommodation must be clear before the employer has an obligation to engage in the interactive process. He was part of a per curiam opinion in Thompson v. Rice, holding the same thing as well.
  7. In Long v. Howard University, Judge Kavanaugh wrote the opinion for the court in a §504 case holding that the statute of limitation could begin to run at the time of the request made or at the time of the denial. For a blog entry on this subject, see this one.
  8. In Northeast Hospital Corporation v. Sibelius, Judge Kavanaugh filed a concurring opinion saying that the relevant inquiry was a narrow reading of statutory text.
  9. In Sims v. Johnson, involving a dispute over a settlement agreement, Judge Kavanaugh dissented essentially on the grounds that the motive of the plaintiff in contesting the settlement cut against the claim that the settlement terms should be figured out by the lower court.
  10. In Allen v. Johnson, Judge Kavanaugh joined a unanimous opinion by Judge Rogers giving latitude to the employer with respect to whether the employer held an honest belief. Further, to find that the employer was culpable more evidence was needed than just proximity of the adverse action. Finally, there was no material dispute of fact over the reason offered by the employer as a legitimate basis for the termination.
  11. In Doe by her next friend Tarlow v. District of Columbia, Judge Kavanaugh wrote the opinion holding that he was not inclined to expand statutes as they were written. This is a case that has disability rights advocates concerned. This case involved persons with disabilities in the District of Columbia who could not consent for healthcare and never could consent for healthcare. Further, they had no particular individual whom could exercise such consent. So, the issue is whether the statutory scheme was inconsistent with District of Columbia statutes and the due process clause of the Fifth Amendment. I can see where disability rights advocates are coming from in this case as the opinion is written in a way that some might construe as paternalistic, which is a real sensitive spot for people with disabilities.
  12. In Carter v. Carson, Judge Kavanaugh joined a per curiam opinion holding that the complaint did not satisfy Iqbal/Twombly standards, which we discussed here.
  13. In Hester v. District of Columbia, a special education case, Judge Kavanaugh wrote the opinion where he decided the case based upon a literal reading of the four corners of the critical document.
  14. In Redman v. Graham, Judge Kavanaugh dissented saying that he was not inclined to expand the statute as written.
  15. In Hill v. Associates for Renewal in Education, Inc., Judge Kavanaugh joined an opinion by Judge Wilkins in an absolutely fascinating case. In this case, the court held a request for reasonable accommodation must be related to the limitation rendering the person disabled. The court affirmed the District Court’s conclusion that the plaintiff did not bring forth sufficient facts to establish a hostile work environment claim. However, the court reversed the summary judgment and remanded for trial on the failure to accommodate claim. The case is also fascinating because it came down July 27 of 2018. The related piece is interesting. In just about all cases, I don’t see how the related piece is going to be much of an issue. A big exception would be dealing with the situation where an employee needs a service dog with them because of his or her disability. I could see in that situation a dispute over “relatedness,” assuming that is the standard a court wants to use. See also this blog entry for a similar discussion.
  16. In City of Anaheim, California v. FERC, Judge Kavanaugh said that Chevron deference was not applicable because the statute was clear that what California did was not permissible.



Unlike my review of Justice Gorsuch, I don’t see an overriding judicial philosophy in these opinions. However, I do see certain pillars and they are:

  1. In city of Anaheim, California v. FERC Judge Kavanaugh said, “The precise words of the statutory text matter.” Judge Kavanaugh clearly will look to what the statute literally says and interpret those statutes whenever possible before looking to other matters to explain what the statute might mean.
  2. In a couple of cases, the motivation of plaintiffs with respect to their litigation strategy are a factor in his conclusions.
  3. Chevron deference is not something he is against. However, he doesn’t like to go there unless he has to. With respect to agency interpretations of their regulations, Auer deference, he does not have a judicial opinion on that. However, when I did a Google search on the Internet, I did come across a speech where he praises Justice Scalia’s opinion, which we discussed here, saying that Auer deference should be thrown out.
  4. He seems to be quite comfortable with the McDonnell-Douglas scheme, which we discussed here. Further, he expect plaintiff’s to meet their burden of proof to overcome nondiscriminatory reasons offered by the employer.
  5. We have often said that magic words are not required to trigger the interactive process. Just what words are required depends. With respect to Judge Kavanaugh, the closer a plaintiff comes to magic words, the better off a plaintiff will be in arguing that the interactive process should have been triggered.
  6. Judge Kavanaugh seem to be quite willing to give employers latitude with respect to the honestly held belief rule.
  7. With respect to the rights of persons with disabilities, the two most interesting cases I find are Hill and Long. In the former, Judge Kavanaugh says that the statute of limitations with respect to a reasonable accommodation request can start either at the time of the request made or at the time of denial. In the latter, Judge Kavanaugh joined an opinion saying that the accommodation sought must be related to the disability. Both of those decisions could have a significant impact on ADA jurisprudence if they become the law of the land.

Happy new year y’all!