[00:00:00] Speaker 00:
Case number 16-5181, Gullum Ali Appellant v. E. Scott Pruitt, Administrator, United States Environmental Protection Agency.

[00:00:10] Speaker 00:
Mr. Pugh for the amicus curi, Mr. Tate for the acolytes.

[00:00:30] Speaker 01:
May it please the court.

[00:00:31] Speaker 01:
Good morning.

[00:00:32] Speaker 01:
Your honor, good morning.

[00:00:34] Speaker 01:
On behalf of the amicus, we represent Mr. Ali on two particular issues as put forward in our brief.

[00:00:47] Speaker 01:
In the core of the matter, we believe, Your Honors, is that we believe that the district court decided this case prematurely and against the required summary judgment standard when it drew important inferences against Mr. Ali.

[00:01:02] Speaker 01:
As Your Honors very well know, pre-discovery motions for summary judgment, which is how this case was decided and is before you now, are generally disfavored.

[00:01:13] Speaker 01:
There are two issues that we see in this case as we put forward in our brief.

[00:01:17] Speaker 02:
Can you address just whether we have jurisdiction to hear this case?

[00:01:21] Speaker 02:
Yes, Your Honor.

[00:01:22] Speaker 02:
Given the timing of the filing of the notice of appeal here.

[00:01:26] Speaker 01:
We certainly can, Your Honor.

[00:01:28] Speaker 01:
We believe that the notice was timely filed and to the government's credit is conceded the point.

[00:01:35] Speaker 01:
There was a question of which order was the final order.

[00:01:38] Speaker 01:
And as we put forward, the April judgment from the court was the final order.

[00:01:48] Speaker 01:
We briefed it extensively in our opening brief, and I'd be happy to go into detail.

[00:01:53] Speaker 05:
I just have a question about it.

[00:01:55] Speaker 05:
I mean, our cases say that it depends on our reading of the intent of the judge.

[00:02:03] Speaker 05:
And it appears to be the case that we read the intent of the judge in the first order in the light of what the judge said in the second order.

[00:02:16] Speaker 05:
And that's a little odd in terms of most interpretive canons.

[00:02:22] Speaker 05:
I mean, you'll find a long line of cases where we disparage post-enactment legislative history, and the same is true in contract.

[00:02:32] Speaker 05:
I mean, I don't necessarily disagree with the outcome here.

[00:02:37] Speaker 05:
And looking for intent may be different from looking for meaning.

[00:02:41] Speaker 05:
It certainly is in some contexts.

[00:02:43] Speaker 05:
But do we need – in this case, do we need the second order to give the interpretation that both parties advocate for the first order, namely that it's not final?

[00:03:01] Speaker 01:
Your Honor, we do believe that we do need the second order because the first one, the March 31st one, says that this action will be dismissed.

[00:03:12] Speaker 01:
And then that came, of course, in the April 12th order.

[00:03:17] Speaker 05:
So there was... You're saying will be means is radically different from is.

[00:03:23] Speaker 01:
That is, yes.

[00:03:23] Speaker 01:
And in light of the language in the April 12th order,

[00:03:28] Speaker 01:
To your honest point, yes, we believe the April 12th order shows what the judge's intent was here, which is to dismiss it with finality on April 12th.

[00:03:41] Speaker 01:
The other point, the other issue that we've raised, of course, is that we don't see this as a case where the plaintiff seeking a reasonable accommodation abandoned his attempt to receive a reasonable accommodation.

[00:03:59] Speaker 01:
In fact, Your Honor, this is set forth pretty clearly in our brief and in Mr. Ali's.

[00:04:04] Speaker 01:
There are letters

[00:04:06] Speaker 01:
April 2007 letters, for example, where Mr. Ali has sent his doctor's opinion about what he needs, answering questions from the EPA that the EPA never responded to.

[00:04:24] Speaker 02:
But what about the correspondence from Mr. Ali explicitly saying that he was going to pursue this other avenue?

[00:04:35] Speaker 02:
to seek redress, basically.

[00:04:38] Speaker 01:
Your Honor, we believe that the record read in Mr. Arley's favor, as it should, is that he and the supervisor met with the reasonable accommodation coordinator, Mr. Hague, and I believe it was June or July.

[00:04:51] Speaker 01:
And at that point, he was informed that there's another route.

[00:04:56] Speaker 01:
He believed it was suggested to him that he should pursue that route.

[00:05:00] Speaker 01:
And in his note to the reasonable accommodation coordinator, he said,

[00:05:04] Speaker 01:
I'm pursuing that other route, implying that he's doing it per the meeting that they had.

[00:05:10] Speaker 01:
And what is so important here, and we don't believe that the EPA is focused on it enough, is that he didn't say, I'm abandoning this process.

[00:05:18] Speaker 01:
He said that, thank you for your patience.

[00:05:21] Speaker 01:
I'm pursuing, paraphrasing, I'm pursuing this other process for now.

[00:05:26] Speaker 01:
And in fact, the EPA, there's been a lot of distinction between the AWS process and the reasonable accommodation process.

[00:05:34] Speaker 01:
But at the end of the day, the question is, did the employer have the notice it needed to know that it had an employee who needed an accommodation and the reasons for that?

[00:05:43] Speaker 05:
Well, I didn't see in your brief, I missed it, a claim that the request for additional information

[00:05:53] Speaker 05:
was not a reasonable request.

[00:05:57] Speaker 05:
If it's a reasonable request, why shouldn't we expect, why shouldn't the district court expect it to be answered, or at least have an effort to answer it, thereby continuing the iterative process?

[00:06:13] Speaker 01:
Your Honors, if it was not clear, I apologize.

[00:06:16] Speaker 01:
In our brief, certainly between Mr. Arles and our brief, we've stated that we believe that the request was actually requested information that it already had.

[00:06:28] Speaker 01:
We believe that critically,

[00:06:31] Speaker 01:
the April letters, in combination with the evidence from 2000, and their day-to-day interactions with this employee from 2000 to 2007, knowing that an office really helped him, gave them the information they needed to know that an office was in fact the accommodation that would remedy his disability.

[00:06:56] Speaker 04:
So one thing I wasn't quite following is that

[00:07:00] Speaker 04:
everybody seems to be on a common understanding that there's two different potential processes.

[00:07:05] Speaker 04:
There's the AWS process and there's a reasonable accommodation process.

[00:07:09] Speaker 04:
And even if it's true that what happened was resort to the AWS process initially was meant only to suspend the reasonable accommodation process rather than abandon it, it still seems like what happened at the end of the day is a lawsuit was filed before the reasonable accommodation process came to a close.

[00:07:29] Speaker 04:
And so at that point, don't we have to address why the reasonable accommodation was denied by reference to the time when the lawsuit was filed?

[00:07:36] Speaker 04:
And at the time that the lawsuit was filed, the request for further information still hadn't been answered.

[00:07:43] Speaker 04:
The notion that there could be a release to communicate directly with the doctor hadn't been supplied.

[00:07:51] Speaker 04:
And so we're faced, and the district was faced, I think, with dealing with the circumstance in which

[00:07:57] Speaker 04:
Mr. Ali filed a lawsuit before participating in the interactive process in a way that the correspondence from the EPA asked him to.

[00:08:08] Speaker 01:
We believe that Mr. Ali, by the time he sought an EEO counselor, had no choice but to do so because in November of 2006, he submitted a letter again to his employer telling them, this is my condition.

[00:08:30] Speaker 01:
No response.

[00:08:32] Speaker 01:
In March of 2007, he literally had a breakdown a week after he was put into a cubicle.

[00:08:40] Speaker 01:
Again, the response is, go to the ER, but we are not going to change this condition.

[00:08:44] Speaker 01:
We're not going to give you an office.

[00:08:46] Speaker 01:
And then by the time April comes, he submits not one but two letters where he's, again, from doctors.

[00:08:53] Speaker 01:
current diagnosis that states that this was his problem.

[00:08:57] Speaker 01:
By this point, Your Honor, we believe that the EPA should have responded.

[00:09:03] Speaker 01:
And so we don't believe that he, unlike cases like Ward or others,

[00:09:09] Speaker 01:
jumped the gun and ended the process.

[00:09:13] Speaker 01:
And we don't believe that the district court found that either.

[00:09:17] Speaker 01:
We believe that the district court believed that the questions that the EPA answered were not answered.

[00:09:23] Speaker 01:
Respectfully, we believe that they were.

[00:09:25] Speaker 01:
Your Honor, I've reserved two minutes of my time, but I'm happy to answer any questions now that are needed.

[00:09:32] Speaker 04:
We'll give you rebuttal time.

[00:09:33] Speaker 01:
Thank you.

[00:09:33] Speaker 01:
Thank you.

[00:09:44] Speaker 03:
Thank you, Your Honor.

[00:09:45] Speaker 03:
May it please the court, Damon Tafe, for the defendant.

[00:09:48] Speaker 03:
I think on the jurisdictional point, defendant agrees with amicus for better or worse.

[00:09:53] Speaker 03:
It's a bit of a messy record, but we do think that when the two orders are read in conjunction, at least the intent of the district court is clear and that under this court's precedence, ultimately it's that intent that governs here.

[00:10:06] Speaker 03:
So we do think that the court has jurisdiction.

[00:10:09] Speaker 05:
Is intent different from meaning?

[00:10:11] Speaker 03:
I'm sorry?

[00:10:12] Speaker 05:
is intent different from meaning as it is in constitutional law.

[00:10:18] Speaker 03:
It might be.

[00:10:19] Speaker 03:
If the district court intended something that's clearly in contradiction with what it wrote on, that might be a different question than we're faced with here.

[00:10:27] Speaker 03:
But I think what we're faced with here is in maybe a latently ambiguous initial first order that says will be issued.

[00:10:35] Speaker 03:
A final order will be issued.

[00:10:37] Speaker 03:
And so in light of the fact that a final order subsequently was issued, then that clarifies what was clear what the ultimate intent was in this case.

[00:10:48] Speaker 02:
on any effect should we give the fact that there had been an admonishment in St.

[00:10:55] Speaker 02:
Mark's that we discouraged these types of orders?

[00:11:02] Speaker 03:
I believe that's up to the court to decide how to interpret that admonishment in terms of whether a district court complied with the court's instructions or not

[00:11:17] Speaker 03:
But even in light of that admonishment, I think here that the district court was trying to be clear.

[00:11:23] Speaker 03:
It said that a final order will issue, and then a final order did issue in direct connection with an opinion that resolved all the outstanding issues.

[00:11:34] Speaker 03:
And that second order was quite explicit that it was intended to be a final order.

[00:11:40] Speaker 03:
In this case, it's not what happens sometimes where a judge will issue an order saying that an opinion will issue, and then months or years go by.

[00:11:49] Speaker 03:
This was a fairly well-connected process in which the district court's intent was clear.

[00:11:55] Speaker 03:
It was sufficiently clear, in fact, that we didn't even make an argument that there wasn't jurisdiction until the court ordered us to brief that issue.

[00:12:03] Speaker 03:
But I think that this is a case in which there's sufficient clarity that the court shouldn't deny jurisdiction.

[00:12:12] Speaker 03:
On the interactive process point, I think this court's language in Ward is really directly applicable here and largely resolves the case, which is the court said, quote, the interactive process broke down before the agency decided on plaintiff's request, and no reasonable juror could have found that the agency, rather than the plaintiff, was responsible for the breakdown.

[00:12:38] Speaker 03:
That's quite literally what we're faced with here, because as Judge Williams noted, there were six presumptively reasonable requests for clarification and further medical information, and the agency did hear

[00:12:55] Speaker 03:
Frankly, quite a lot.

[00:12:57] Speaker 03:
Not only did they give very specific instructions as to what they were looking for, but Mr. Haig followed up not once, but twice over the course of months, specifically saying, would you please provide us with this information?

[00:13:12] Speaker 03:
And Mr. Ali refused to do so.

[00:13:15] Speaker 03:
There's some notion raised on appeal by Amicus that Mr. Ali didn't do so because he was merely suspending

[00:13:22] Speaker 03:
the process in favor of AWS.

[00:13:26] Speaker 03:
That's not an argument that Mr. Ali made below, and indeed he doesn't even make it on appeal.

[00:13:31] Speaker 03:
Instead, his argument is that he did not need to provide additional medical information because, number one, the agency had enough.

[00:13:38] Speaker 03:
And number two, because Mr. Haig, who is the reasonable accommodation coordinator, wasn't entitled to it because he wasn't a doctor.

[00:13:46] Speaker 03:
And even accounting for the fact that Mr. Ali is pro se, that approach simply finds no support in this court's case law.

[00:13:55] Speaker 03:
And it's impractical because if the agency reasonably needs the information to tailor a reasonable accommodation, then it should have it following a specific request for it.

[00:14:07] Speaker 03:
And notably, the things that were requested raise such questions as what effect does or do currently used mitigating measures have?

[00:14:17] Speaker 03:
And what reasonable accommodations, plural, might you suggest?

[00:14:22] Speaker 03:
And those questions are not ones to which the agency had answers.

[00:14:26] Speaker 03:
There was no evidence at all prior to this request or indeed after it because it wasn't responded to.

[00:14:33] Speaker 03:
As to what mitigating measures Mr. Ali was taking, or could take, and under this court's capture decision, that's quite relevant.

[00:14:43] Speaker 03:
Likewise, although it's true that the agency must provide a reasonable accommodation, if it can, after a showing of need,

[00:14:52] Speaker 03:
A claimant is not necessarily entitled to the specific reasonable accommodation he requested here in office.

[00:15:00] Speaker 03:
Instead, he's entitled to a reasonable accommodation, and one could have imagined several.

[00:15:06] Speaker 03:
A private office may be one.

[00:15:08] Speaker 03:
Working somewhere else that's more isolated may be another.

[00:15:11] Speaker 03:
Working from home might be a third.

[00:15:13] Speaker 03:
And in order for the agency to decide among potential reasonable accommodations,

[00:15:17] Speaker 03:
the answers to these questions were necessary.

[00:15:21] Speaker 04:
And if they weren't necessary, then Mr. Ali at some point could have made that argument, but it's not one that he or respectfully... So what if we concluded that it's fairly before us whether there was suspension rather than an abandonment?

[00:15:36] Speaker 04:
And that really what's going on is Mr. Ali responds and says, you know, for now I'm going to go with the AWS process.

[00:15:43] Speaker 04:
I understand there's a reasonable accommodation process too, but the AWS process worked for me last time.

[00:15:47] Speaker 04:
I'm going to pursue that to its conclusion and then we'll turn back to the reasonable accommodation process.

[00:15:53] Speaker 03:
By the time, I think as Your Honor's earlier question to opposing counsel hinted, by the time the suit was filed,

[00:16:03] Speaker 03:
Mr. Ali had not responded to their request for more medical information, specifically the answer to these questions.

[00:16:09] Speaker 03:
So even if it was the case that Mr. Ali was pursuing AWS in lieu of reasonable accommodation, he didn't provide answers to the questions under either process, and then he sued for failure to reasonably accommodate without having provided the answers that the agency was looking for.

[00:16:28] Speaker 03:
And I think the hardest issue in this case is, as Anikis notes, whether it was premature to resolve this case without discovery.

[00:16:36] Speaker 03:
And I think the answer to that question is no.

[00:16:39] Speaker 03:
This court's decision in Gard actually goes straight to that because in Gard, the district court faced a situation much like this one where a plaintiff had a non-obvious alleged disability, chronic pain, narcolepsy, PTSD.

[00:16:55] Speaker 03:
So it wasn't like somebody in a wheelchair

[00:16:57] Speaker 03:
And it was clear from the face of the complaint there that there had been, at least allegedly, prior medical information provided.

[00:17:08] Speaker 03:
And the agency had said, please give us more recent information, something from the last few months.

[00:17:13] Speaker 03:
And it was also clear that the claimant hadn't done so.

[00:17:17] Speaker 03:
So not only did that court not allow discovery to go forward, it actually granted a motion to dismiss.

[00:17:25] Speaker 03:
And this court, it's true, summarily affirmed it in a non-precedential opinion, but I don't think that means that the disposition doesn't have value, because a summary affirmance means that the merits are so clear that more briefing is not needed.

[00:17:39] Speaker 03:
And in summarily affirming, the court said that it's established beyond the need for more briefing that a reasonable request for current medical information

[00:17:47] Speaker 03:
is required.

[00:17:49] Speaker 03:
So that seems to be exactly what we're faced with here, where the agency sought reasonable clarifications of certain limited points, and when it didn't receive it, reached out not once, but twice.

[00:18:02] Speaker 03:
And it's also worth noting in that regard that the agency in general, and Mr. Hague in particular, had been down this road only a year before.

[00:18:10] Speaker 03:
In 2005, much like in 2006, Mr. Ali had gone to Mr. Haig and sought reasonable accommodation and Mr. Haig asked for certain information and Mr. Ali didn't provide it.

[00:18:23] Speaker 03:
Mr. Haig reached out a couple more times and then closed his file.

[00:18:27] Speaker 03:
Then the same thing happened a year later, in 2006.

[00:18:31] Speaker 05:
The reiteration of these exchanges is important, but is it not the case that at any time, including today, Mr. Ali could not start the process again on a fresh slate?

[00:18:49] Speaker 03:
It's absolutely the case.

[00:18:51] Speaker 03:
That's shown in 2005.

[00:18:53] Speaker 03:
He didn't get it restarted in 2006.

[00:18:54] Speaker 03:
So I think an important point here is that the abandonment issue is not the same as abandoning a claim that might be dismissed with prejudice in a lawsuit.

[00:19:06] Speaker 03:
Closing a reasonable accommodation file is not prejudicial in a way that dismissing a case might be.

[00:19:13] Speaker 03:
Mr. Ali could have at any time, including after filing this complaint,

[00:19:16] Speaker 03:
provided the information in question and restarted the process.

[00:19:20] Speaker 03:
He's not limited in doing that in any respect.

[00:19:23] Speaker 03:
The only question is, by the time Mr. Ali filed this case in March 2007, had he suspended or abandoned the process in such a way that the agency could be found not to have participated in good faith?

[00:19:39] Speaker 03:
We think the answer to that question is quite clear, and the district court got it right, and that's the basis on which we seek affirmance.

[00:19:46] Speaker 04:
Thank you.

[00:19:51] Speaker 04:
Mr. P, we'll give you your two minutes of rebuttal.

[00:20:00] Speaker 01:
Your Honor, the argument from my opponent highlights the issues that we raised in the beginning of our argument today.

[00:20:07] Speaker 01:
And they're still, as the EPA is, still ignoring the fact that there were April 2000 letters that were submitted by Mr. Ali that answered the six questions, if inferences are fairly drawn in his favor, answered the six questions that the EPA asked.

[00:20:23] Speaker 01:
So the repeated arguments that he didn't answer those questions is this flatly wrong.

[00:20:29] Speaker 01:
And in fact, the district court acknowledged that he had, in fact, sent in those April letters and page 37 of the decision.

[00:20:38] Speaker 01:
But what happened there is because there's no response from the EPA to those letters, the judge on the court's own

[00:20:47] Speaker 01:
decided that those letters were insufficient.

[00:20:51] Speaker 01:
And just briefly, what those letters tell you is that there's shortness and wheezing, that he receives a rash.

[00:21:00] Speaker 01:
The agency already knew since 2000 that he had had these problems, these limitations.

[00:21:05] Speaker 01:
In fact, since 1997, that the perfumes and other odors from his office mates were causing the problem.

[00:21:14] Speaker 01:
And that, again, to the EPA's question of what would remedy this problem, the judge in April 2007 says a private office would do that.

[00:21:28] Speaker 02:
Now, what though in the record supports that a private office is going to do that when

[00:21:35] Speaker 02:
I mean, the air in the building is the air in the building.

[00:21:38] Speaker 02:
It's going to be the same air in the private office that there would be outside the office in a cubicle.

[00:21:44] Speaker 01:
For this, Your Honor, we believe that, frankly, Mr. Ali should have an opportunity to show that.

[00:21:50] Speaker 01:
But the central question of whether there was an abandonment, I believe the answer to that is no, for the reasons stated.

[00:21:55] Speaker 01:
So, Your Honor, I see that my time has passed.

[00:21:59] Speaker 01:
I'm happy to continue.

[00:22:00] Speaker 02:
I guess to determine whether there was an abandonment, we would have to, I guess, interpret whether that response and the others were really responsive.

[00:22:17] Speaker 02:
So I guess that's what I'm trying to get at with my question is,

[00:22:21] Speaker 02:
How was that really responsive?

[00:22:24] Speaker 02:
How did that really answer the question of how a private room would achieve some sort of a remedy for the problem that Mr. Ali says that he had?

[00:22:41] Speaker 01:
We believe had the EPA answered the letters that were provided, that part of the interactive process could have continued.

[00:22:50] Speaker 01:
The question that's asked by the EPA is what accommodation do you need?

[00:22:55] Speaker 01:
Not why.

[00:22:57] Speaker 01:
In other words, the very last question that they ask of the sick is what reasonable accommodation is needed?

[00:23:03] Speaker 01:
And the letter that is provided by the doctor invites the EPA to contact the doctor.

[00:23:09] Speaker 01:
In addition, Mr. Ali is in communication regularly with the recipient of the letters, his first line supervisor, Mr. Wathen, who's walked with him through the reasonable accommodation process and the AWS process.

[00:23:22] Speaker 01:
But for some reason, there is nothing on record.

[00:23:25] Speaker 01:
that contains a response from the EPA to what Mr. Ali presented in response to these questions.

[00:23:33] Speaker 01:
With that, Your Honor, I say thank you for your time.

[00:23:35] Speaker 04:
Thank you.

[00:23:36] Speaker 04:
Mr. P, you were appointed by the Court to present arguments in favor of Appellant, and the Court appreciates your assistance.

[00:23:43] Speaker 01:
Thank you, Judge.

[00:23:49] Speaker ?:
Thank you.

[00:23:50] Speaker 01:
The case is submitted.