*1 III.
We conclude probation officer
does not exceed her statutory authority
when she petition submits a on supervised
release to a district court. We reject also
Mejia-Sanchez’s contention
United States Attorney may initiate revo-
cation Thus, proceedings. we AFFIRM
the judgment below.
January FREDENBURG,
Plaintiff-Appellant,
CONTRA COSTA COUNTY DEPART
MENT OF SERVICES, HEALTH
Defendant-Appellee.
No. 97-15885.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted March 1998.
Decided April *2 California, Fairfield, Parker, for
Darryl plaintiff-appellant. County Coun- Deputy Knapp, Bernárd California, the defen- Martinez, for sel, dant-appellee. KOZINSKI,
Before: CANBY WEINER,1 District Judges, Circuit Judge. CANBY; Judge
Opinion WEINER; Dissent by Judge Concurrence by Judge KOZINSKI.
CANBY, Judge: Circuit plain- isus whether before question judi- Fredenburg January tiff-appellant establishing a claim from cially estopped under the employer former against (“ADA”), Act Disabilities Americans Fredenburg had seq. § 12101 et 42 U.S.C. temporary state and received applied available disability insurance or who, physical of a because workers condition, “unable are mental Cal. customary work.” regular [their] §§ Code Unemp. Ins. judi- fact this court held establish- estopped
cially individual “qualified she is a 12112(a) ADA. of the disability” under designa- sitting by Pennsylvania, Weiner, District of Senior R. Charles 1. The Honorable tion. Judge the Eastern District United States We conclude that Fredenburg judi- is not (1) stated two ADA claims: cially estopped, and we accordingly re- that Health Services unlawfully discrimi- verse judgment of the district court. against nated her by removing her from work and refusing permit return; I (2) *3 that Health Services’ fitness-for- 1995, Until Fredenburg worked as a duty examination exceeded ADA’s permit- Mental Health Specialist Treatment II for ted boundaries for medical examinations. the Contra Costa County Department of Fredenburg also alleged a number of state (“Health Health Services”). Services Af- law claims. ter on-the-job several difficulties with co- The district granted court workers, Health Services asked Freden- judgment for Health Services on the ADA burg to submit to a fitness-for-duty exam- claims. With regard to claim, first ination, as authorized by the applicable court held that Fredenburg’s representa- collective bargaining agreement. psy- A tions to the state benefits agency that she chiatrist and a clinical psychologist diag- was unable to do her regular work judicial- nosed Fredenburg as suffering para- from ly estopped her from asserting in this ac- noia and recommended that she take a tion that she was a “qualified individual” leave of. absence and pursue therapy. ADA, under the 12112(a). § Health placed Services Fredenburg on ad- court then held that this conclusion was ministrative leave with for pay weeks, two also fatal to Fredenburg’s second ADA and thereafter on indefinite leave without claim, because she had to be a “qualified pay. Fredenburg appealed to the County individual” in order maintain a Board, Merit claim for claiming that she was fit for an improper medical examination work. require- The Board denied appeal. her ment. After for Meanwhile, ruling Health Services on Fredenburg applied for and claims, ADA received disability benefits from elected the State not to California, exercise supplemental provides which jurisdiction temporary up over the year one state-law claims, for who, workers dismissed because of a them physical without prejudice. or mental condition, are “unable to perform regular [their] II customary work.” Cal. Unemp. Ins. Code 2601, §§ 2626, 2653. She In received order bene- successfully to pursue her fits from November 1995 to May claim of disability 1996. discrimination, Freden- The benefits were terminated May 12, burg first must show that she is a “quali 1996, psychiatrist after state found her fied individual with a disability.” 42 capable of returning to work. Freden- § 12112(a); U.S.C. Kennedy v. Applause, burg attempted to have the benefits Inc., con- 90 (9th F.3d Cir.1996).2 1480 tinued, certifying on May 22, 1996 that To be “qualified,” Fredenburg must be she was still disabled and incapable of able to perform all the essential functions doing regular work, her but she was un- of job, either with or without a reason successful. able accommodation for any disability. following month, See 42 12111(8). U.S.C. Fredenburg Health Services sought to work, return to argues that and Health Fredenburg Ser- cannot perform vices asked her to job undergo another because of fitness- her mental health prob for-duty examination. lems. support, re- Health Services points fused, contending that to the many examination documented examples of Fre- was overbroad in scope and invaded denburg’s on-the-job troubles phy and the privacy. Health Services did not allow sicians’ opinions concluding she suf Fredenburg to return to work. Freden- fers from paranoia. however, Fredenburg, burg then commenced this action. offers the declaration of her own psycholo We assume that Fredenburg's mental condi- tion falls within ADA’s disability. definition of rejected position this We ADA claim. able an Fredenburg was opined who gist, (9th 141 F.3d Oregon, v. Johnson work, would benefit but return Cir.1998). that “[i]t out pointed We work environ- stressful a less a transfer different definitions to the opin- possible, due points also ment. agencies, by various disability employed her for examined who of the physician ion satisfy disability benefits eligibility determining qualify purposes person qualified of a benefits, expressed definition and who the ADA’s 1366; “major also Id. at see disability.” Fredenburg suffered view Ass’n, ready would be Maritime Lujan episode” depressive Pacific Cir.1999). re- rest. therefore work after month’s We return to rule, went farther but we per se jected about Freden- opinions conflicting *4 acknowledged we Athough that. than genuine a create to work ability burg’s appropriate be when might estoppel that could Fredenburg as to whether dispute posi- and inconsistency of statements the true Health Services It is that job. her do as to “demonstrate so blatant tions was she that evidence presents substantial and loose fast playing a is that claimant that true Health’s It is also not. could courts,” was preference clear the our job, the when do that she could statements simply be statements inconsistent that the of her statements light the in viewed evidence along with other considered still that she was agency benefits state damaging that they were so whether see them- of disabled, might insufficient the fact rule in of could rational trier no judgment. summary to forestall selves plaintiffs favor. 1481. Unlike F.3d Kennedy, 90 at See the use general, that emphasize in however, Fredenburg We Kennedy, in plaintiff on representations prior opin- plaintiffs of a with the her statements supported helpful as evidence Considering disability all of physicians. ions of two approach of fact an ADA claim-the evidence, evaluating trier reasonable a protect all will suffice Fredenburg perform Kennedy can of find that process. job. judicial her On sanctity of of functions of the essential therefore, judgment presented, “Straightforward issue the factual estop of theories improper. than analysis, was summary judgment rather in most cases. appropriate bewill pel” however, court, held district Stores, Inc., Wal-Mart [v. See Griffith repre by her Fredenburg bound r.1998) [(6th 376,] ]. 382-83 F.3d 135 Ci Devel Employment the state sentations party’s applies when estoppel Judicial disabled she was Department opment knowing to a “tantamount is position regular work. her doing of incapable and on to or even fraud misrepresentation view, represen these court’s In the district Operations G.P. Ryan the court.” pro in these her claim tations contradicted Co., F.3d 81 Lumber Santiam-Midwest qualified individual. she is ceedings that Cir.1996) (citations (3d 355, 362-63 the doctrine court therefore invoked omitted). quotations internal liti precludes estoppel, which of Johnson, F.3d at 1369. 141 positions asserting inconsistent gants from reasons, several forums.3 For in different fast not playing application on, that this we conclude with, committing fraud loose estoppel inappropriate. problems illustrates Her case court. Her position. in her by a worker faced controversial been estoppel Judicial has per could not that she concluded employer have courts Several ADA cases. unpaid her job, placed her feder- form state or that an application ruled employer’s disagreed She bar leave. per se as al benefits acts awkwardly positions. preclusion inconsistent 3. The doctrine is sometimes the doctrine to as precisely more referred 1180 determination and unsuccessfully chal able accommodation. The district court
lenged Then, it. without pay because of held, however, that Fredenburg had not disability, asserted she applied for met her burden of showing reasonable temporary disability benefits and received accommodation that permit would her to them. What else was she to do? When job. See Air, Barnett v. U.S. those benefits were terminated because Inc., 157 F.3d (9th Cir.1998). 749 the state decided she was no longer dis alludes to an accommo abled, disagreed she but was unsuccessful dation tangentially, when she refers in challenging that determination. She opinion of one of her physicians who opined that she might function better if then asked her employer to back, take her and the employer refused. So she brought transferred to another supervisor. Trans suit ADA, under the claiming that she was fer to a position vacant may be considered to perform able her job. It is true a reasonable accommodation under Fredenburg took positions inconsistent ADA in some circumstances. See Buck during this saga, but her employer and the ingham v. States, United F.2d state, together, considered were not treat Cir.1993). But Fredenburg never consistently either. She has not identified a position vacant or indicated any denied of the representations she how transfer would enable her to perform *5 made; the court has not been misled. the essential of job.5 functions requisites Johnson’s judicial for estoppel district court accordingly did not err in are simply not met.4 disregarding the fact that the state’s defi nition of disability, unlike ADA’s, took was subject also no account of different accommodation. definitions of disability for the purposes of state benefits ADA, and the remains, fact however, that the dis- but the district court made allowance for trict court precluded Fredenburg from that divergence. As the district court rec showing that she was qualified ognized, state provided law job benefits if her without further accommodation. Fredenburg was unable to perform her As we have stated, that judi- invocation of regular or customary work, without re cial estoppel was inappropriate, because gard possible accommodation. The Fredenburg had not played fast and loose ADA requires only that Fredenburg with, or committed a on, fraud the court. able to perform all of the essential func The summary judgment therefore cannot tions of her job, with without reason- stand.6 court, fairness to the district we note that did not indicate to the district court what it did not have the benefit of the Johnson information sought was or what it intended to opinion at the time it ruled. show. See 56(0- Fed.R.Civ.P. The district court therefore did not err in denying further 5. Fredenburg contends that the district court discovery. In addressing the summary judg- ruled on judgment too precipitous- motion, however, ment the district court fo- ly, allowing without full discovery. The dis- cused on estoppel, which necessarily trict original court’s case management order eliminated the need for much factual develop- required discovery to be completed by August remand, ment. On 29, 1997, district court is not and ordered motions directed to precluded from reopening discovery Health if right Services' it to conduct a psycholog- deems such appropriate. action ical examination to be filed in time for hear- ing April on 1997. On the scheduled date, filing Health 6.We disagree Services filed with the motion for dissent’s conclusion summary judgment that limited; our so not decision it "allows people to slough off sought summary judgment prior on all inconsistent representations claims. Al- they when though Fredenburg may have been become surprised, inconvenient." Fredenburg’s earlier the summary judgment admissions, motion was properly like those any litigant, of may be noticed and nothing in the used order in or rules evidence against her. The trier of fact prevented Health Services from filing gen- can take them into account arriving aat eral summary judgment motion. See Fed. decision. This ordinary process of decision- 56(a). R.Civ.P. Fredenburg ultimately making asked will be allowed to work in Freden- for a continuance for discovery, further burg’s but case. The only effect ruling of our to is that Fre- them when it found alleged terminated complaint Fredenburg’s to work. returning denburg capable ADA violated Services that Health temporary conflict between was no There her on leave initially placed it when both recovery. It was disability apparent after her back to take it refused when error for the district court therefore ben disability receiving state period certification of that a claimant’s conclude par not focus court did efits. The of leave is disability during period be that may It the first claim. ticularly on ability to return to work inconsistent pre claim to be considered the court id. at 1246. purposes.7 ADA See that Fre- cluded; court’s order notes conclude, therefore, that the district We review of the not seek denburg did summary judg- granting court erred in upholding determination administrative on the Health Services in favor of ment placing action Services’ Health claim discrimi- clear, however, to make wish leave. We that rul- accordingly reverse We nation. inap that, judicial estoppel though even proceedings. and remand further claim, first regard to this propriate entitled not be certainly would Ill and, at the disability benefits to retain challenged Health Ser- Fredenburg also same time, pay for the back recover same fitness-for-duty examina- required vices’ employer claim that on her period tion, scope alleging that it exceeds leave. her on by placing the ADA violated permitted by the ADA.8 an un Fredenburg of relieves ruling Our claim was con- of this decision ruled disability benefits choice between tenable Fredenburg’s first by its decision of trolled Johnson, claim, see ADA and an claim, to be Fredenburg had because ADA permit a double it does not at disability” in awith “qualified individual *6 positions. recovery based on inconsistent improper a claim of to maintain order er- ruling was This medical examination. Fredenburg’s sec to regard With roneous, the disposition of independently violated Health Services ond claim-that claim, because first ADA Fredenburg’s of her to return permitting not the ADA “quali- a not have to be Fredenburg does work, important there is an additional disability” in order individual fied considered. factor to be protec- ADA’s the standing invoke have temporary. The potentially examina- medical against improper tion leave person a placing of whole purpose tions. eventually return to may is that he or she 12112(d) limits the of the ADA Section Indeed, recently have held that we
work. employers examinations scope of medical disability may itself account of leave on undergo to re- may require employees the under accommodation a (d)(1) reasonable provides jobs. their Subsection tain Stores, Inc., ADA. Nunes Wal-Mart medical against using prohibition a general Cir.1999). discriminate; The state 1243 subsections 164 F.3d examinations (d)(4) (d)(2) more detailed provide for and Fredenburg applied through that allowed.9 and is not as to what is guidelines the state temporary, and were received regard- complaint is unclear Fredenburg's 8. closing door Freden- the courthouse avoid exami- challenge the medical her ADA outset, her admissions. burg because of at the Fre- nation^). interpreted court raising an ADAclaim denburg's complaint as Fredenburg challenged recognize that 7. We examination, which regard to the second she was able to determination that the state’s September 1996 required Services Health already we have to work. For reasons return Fredenburg's return of as a condition however, stated, assertion her unsuccessful example court’s the district work. We follow to work was not was unable to return that she examination. The second and deal with estoppel be proper a foundation for sought by Health Ser- same information Fredenburg was cause it did not indicate examinations, however. both vices from courts.” See “playing fast and loose with 12112(d) Johnson, section of portions F.3d at 141 9. The relevant provide: 1182 began its analysis with applicants to take an HIV test unless general language subsection inquiry were shown to be job-related. 12112(d)(1),which states: “The prohibition This prevents restriction employers from
against discrimination as referred to in using HIV tests to deter HIV-positive ap- (a) subsection of this section shall include plicants from applying; requiring appli- medical examinations and inquiries.” 42 cants challenging the test first prove 12112(d)(1). § U.S.C. Turning to subsec- that they are in fact disabled-thereby re- (a) tion section the district court vealing their HIV status-would render the noted that it prohibits discrimination section nugatory. We therefore reverse against qualified “a individual with a dis- the decision of the district court and hold ability.” 12112(a). 42 U.S.C. By this plaintiffs need prove not they process, the district court concluded that are qualified individuals with a disability only qualified individual with a disability in order to bring claims challenging bring claim for violation of the scope of medical examinations under the ADA’s restrictions on medical examina- ADA. The only other circuit to address tions. the issue reached the same conclusion. analysis This was correct only so far as See Roe v. Cheyenne Mountain Confer- it (d)(1) went. Subsection general states Resort, ence Inc., principle-medical may examinations not be (10th Cir.1997). used to against discriminate qualified per- sons with disability-and categorically di- Because the district court errone rects courts to treat medical examinations ously rejected Fredenburg’s challenge to possible as evidence of discriminatory con- the medical examination on the ground of duct. context, Within this only qualified standing, it did not rule on permissibil individuals with a disability have a cause of ity of the examination under the standards action. of the ADA. Section 12112(d)(4)(A)prohib its a “covered entity” from But inquiring into restrictive language of whether an employee is section an 12112(a)-incorporated individual with by reference a disability unless the 12112(d)(l)-does section “examination or in not apply to quiry is (d)(2), subsections shown to be (d)(3) job-related (d)(4). con Those sistent with subsections set business forth types necessity.” *7 12112(d)(4)(A). § examinations U.S.C. that prohibited. are In The only so reason doing, they able refer “employees,” reading of this “job and language places the applicants,” not “qualified burden on the individuals with covered entity, here Health a disability.” They do Services, so for a reason: make the requisite showing. protecting only qualified Health individuals would Services argues with considerable defeat much of the usefulness of force those that it has demonstrated job- both sections. Under (d)(2), subsection ex relatedness and business necessity, but ample, an employer could not require job these are both factual determinations that
(d) Medical examinations and inquiries disability or as to the nature or severity of (1) general the disability, unless such examination or prohibition against discrimination as inquiry is job-related shown to be and referred to (a) in subsection of this sec- consistent with business necessity. tion shall include medical (B) examinations Acceptable examinations inqui- and inquiries. and ries A covered entity may conduct voluntary (4) Examination inquiry and examinations, medical including medical (A) Prohibited examinations and inqui- histories, which are part of an employee ries program health available employees at A entity covered shall not require a medi- that work site. A entity may covered cal examination and shall not make in- make inquiries into ability anof em- quiries of an employee as to whether ployee job-related functions. such employee is an individual with V ad- have the district court prefer we instance. the first dress in the district court judgment of reversed, the matter is remanded to the exam- sought from Services Health further proceedings court for district the follow- the answers to ining physician opinion. consistent with this (1) conditions Are there ing questions: endanger that and REMANDED. in Ms. REVERSED present (2) co-workers, herself, patients? her WEINER, concurring: Judge, District an inde- Fredenburg function as Ms. Can (3) psychiatrist? professional pendent Canby’s Judge with decision I concur psy- from a Fredenburg suffer Does Ms. of ADA protections (4) so, what is the 12112(d)(2) (4) If impairment? chiatric only §§ are not limited to — (5) Does the impairment? disability.” nature of that “qualified individuals] or more substantially limit one impairment conflicting opinions agree I also so, If daily living? ability of the activities to work created about which are those activities to whether she please genuine dispute indicate as of the limitations? job. Judge appears and the nature Kozinski also limited do (6) any, you plan, propositions. Finally, if do agree treatment with these What Canby that Freden- agree Judge I with recommend? burg playing was not fast and loose as- questions, or other these Whether the court when she asserted inconsistent examination, were required pects of keep positions attempting when first with business and consistent “job-related benefits, job, keep then 12112(d)(4)(A),are necessity,” 42 U.S.C. job, a regain decision attempt then that we questions and situational factual disagrees. Kozinski Judge with which in the first in- court leave to definitions of disabili Faced different F.3d California, 95 See Yin v. stance. disability benefits ty in for state qualifying (9th Cir.1996). Upon & n. 8 867-69 claim, ele an maintaining ADA remand, may conduct the district judicial estoppel have not been ments of and allow such proceedings such further and thus the record before us satisfied on discovery appropriate, it deems further as summary judgment on entry discretion, the resolution of this its separately I write improper. basis was 7, supra. footnote issue. See remand, that, upon the dis stress liberty to in the is at determine trict court IV whether, straightfor under a regard first Freden- analysis, judgment ward Freden- court dismissed matter of law. claims fail a burg’s prejudice, without claims burg’s state-law *8 stated in Johnson Ore- As the court supplemental its not to exercise choosing (9th Cir.1998), 1369 gon, the 141 F.3d it resolved feder- jurisdiction once had may be so prior representations “plaintiffs Because judgment. on al claims they will defeat strong federal and definitive judgment of the we reverse that facie case on tradition- plaintiffs prima of the the claims, reverse the dismissal we also grounds.” claims, summary judgment al While the district permit state-law “knowing to a judicial estoppel applies whether again to determine court once to or even a misrepresentation fraud jurisdiction supplemental its exercise court,” holding of the Johnson distin- on remand with the proceedings light of or chicanery from guishes inadvertence claims. to the federal regard when, or opinion ex- "whether in the Fredenburg's counsel insisted overbroad, Fre- provider, and advised care can was health Ms. amination the disclosure of denburg safely not to consent return work.” other than psychiatric information medical 1184
mistake. Id. Here we seem to confront a Standard Insurance was not inconsistent situation somewhere the middle. Ap- explained because she that “although she pellant appears to have simultaneously in- [was] disabled, permanently she [could] sisted the state disability agency that work, nevertheless but only with reason- she continued to be disabled when it able accommodations.” Id. Finally, in a sought to cut benefits, off her while seek- letter to IRS, she flatly represented ing to maintain an ADA claim without that she was “totally disabled,” which the requesting any specific accommodation. panel found “troubling.” Id. However, it Adding further to confusion, Freden- found the inclusion of that representation burg also claims discrimination based on in her handwritten letter to the IRS was her initial removal work, pre- arguing not “an affront to the court sufficient to sumably that the County’s claim that she warrant estoppel” because “[s]he suffered from paranoia pretextual. was’not seeking financial benefits from the While these inconsistent claims regarding agency, she was merely asking for leniency her ability work, return to work and regarding her late tax return.” Id. at inability to return to work might be satis- 1370-71. No such reconciliation can be factorily explained, for example, by the here, made and the majority doesn’t even nature of her psychological impairment, or pretend it can. the passage time, on remand the district The majority holds, correctly believe, I court is free consider all this evidence in that Fredenburg has not proposed a determining rea- whether Appellant’s claim can sonable accommodation. The only survive ques- summary judgment or upon reach- left, tion then, is ing whether she ultimate can work merits of her claims. without an accommodation. Fredenburg
KOZINSKI, Circuit Judge, repeatedly dissenting: represented to the state Em- ployment Development The majority Department manufactures a new de (EDD) that fense to she was incapable bar of perform- estoppel—hav ing her ing regular good really work.1 She excuse is now for taking claim- incon ing that positions. sistent she can perform In so doing regular work, it creates a conflict and in fact could do Johnson v. so all Oregon, along. 141 F.3d There is (9th Cir.1998), absolutely no way to Rissetto v. reconcile the Plumb two ers positions. This is very Local different than Steamfitters Cir.1996). Johnson, Johnson where the went to great seemingly inconsistent lengths to explain representations how the plaintiffs could be previ by reconciled not- ous representations squared the employee said nothing about her position that she was in ability fact qualified to work with a reasonable ac- individual with a disability. For example, commodation. And her representations it explained that her representations here differ radically from the third repre- Social Security Administration were not sentation made because, Johnson unlike inconsistent because “[t]he SSA a letter neither to the IRS explaining why a tax asks nor considers whether individuals can return late, one would expect an appli- work with accommodation.” Johnson, 141 cant to be precise about the nature of her F.3d at 1370. What she represented to ability to work when making representa- 1. In order to qualify for state disability bene- (defining "qualified individual” person as a fits, a claimant must be "unable perform who "can *9 the essential functions of his or regular her or customary work” as a the employment position that such individual of result “his or physical her or mental holds”), condi- I puzzled am by Judge sug- Weiner’s tion.” Cal. Unemp. (West Ins. Code § 2626 gestion that this case turns on "different defi- 1986). Although this doesn’t the mention nitions of disability,” see op. Weiner at 1183. possibility of accommodation, reasonable the Judge Weiner does not explain do I be- —nor majority opinion doesn't rely on that distinc- lieve he can—how the "different definitions of tion. Given the similarity of this language to disability” make any difference answering in ADA, that of the see 12111(8) U.S.C. question the put to us. lax test that such a of is I am sure to it is What whose business agency an to tions fast and “playing constitutes for what disability claims. pay binding precedent. contrary to loose” is Freden- is that simple explanation The Rissetto, case, noted we very In a similar and proceeding, in one story told one burg ‘play- might that it constitute concern “our she her what get then, when it didn’t the courts’ and loose fast inconsis- wanted, a different and she told she was in 1990 that to claim plaintiff The ma- story proceeding. in another tent in to job her order to perform unable obvious to responds jority and compensation obtain workers’ question: rhetorical mendacity her performing she was to claim now that at Maj. op. to do?” else was she “What in damages in order to win job adequately was to was to do Fredenburg What 1180. Rissetto, In- at 601. suit.” this times; very the that’s at all tell the truth the deed, we determined in that case is There estoppel. of essence and play to fast trying in fact plaintiff to plaintiff a expecting nothing wrong with judicially estopped loose, thus was and like question simple to a respond truthfully FEHA in her taking position a new from job. her she is able whether not, and at Johnson did suit. See id. 606. asking much may be too Although it decep- not, The overrule Rissetto. could account the differ- into her take expect is on all by Fredenburg here practiced tion or being able work between ence Rissetto, lead and must with that in fours accommodation, the a reasonable without result. to the same pretend doesn’t majority’s analysis rely on Nunes majority tries to Rather, niceties. with such concerned Stores, Inc., F.3d 1243 Wal-Mart tune change allowed to Fredenburg is the at Cir.1999), maj. op. see not “had because she penalty without the citation are so different cases with, a or committed fast and played loose analysis. majority’s undercuts on, Maj. op. at 1180-81.2 the court.” fraud syn- Nunes, had suffered plaintiff at faint her to caused copal episodes that standard what this quite I’m unsure absence, of but, a leave taking after Does work to mean. is or intended means There at 1245-46. id. was cured. See mean she the court” a “committing fraud of leave inconsistency taking in no prior repre- of the failed to learn that we disability benefits collecting sentation, able to absence party and thus returning disabled, then admittedly Fredenburg while Certainly by one us? sneak is restored. health after one’s to work representa- bring prior nothing to did Freden- way court, any describe not does This of district tions to attention or alleges nowhere Fredenburg burg. not come they probably would have need- problem she had suggests of them.3 county not had the learned light Instead, com- she well. get time off possi- ed nothing There is at termination plains “pretext[ual]” forthright any to be less bly have done Complaint See county. hands If this be than she inconsistent more was.. ¶ a letter references she Admittedly, loose,” what is. 11. I’m not sure “fast and not forthrightly fail Fredenburg's only did con- 3. Not majority excuses also state, this employer representations, and the prior duct because "her admit to her treating her deci- together, were not considered court's argued that the court she But Maj. op. at 1180. consistently either.” bene- application sion to take notice of disability of- Fredenburg’s employer and the Appel- See discretion. fits was an abuse no obli- parties who had fice were different refutes pretty much at That lant’s Br. 10-11. Even if positions. gation to take consistent not has majority's ”[s]he contention single party were opponent inconsistency she made.” any representations denied of the see how estoppel, I don’t defense Maj. op. at 1180. unrelated conduct of two meld the one could *10 purpose. that parties for from one of her physicians stating that she ed Fredenburg and county in order would be able to return to work after to grant summary judgment. What am I recovering from her “adjustment disorder” missing here? on January 16th; she obviously didn’t believe sum, that doctor’s opinion the majority contin- opinion guts —she
ued to accept disability benefits after Jan- doctrine judicial estoppel, which has 16th, uary and then represented to the previously been followed in this circuit. EDD in May, four later, months that she The majority forthrightly admits this when remained disabled and unable it allows that “Fredenburg’s earlier admis- the functions of her job. Nor does Fre- sions, like those of any litigant, may be denburg’s brief suggest that she was once used in evidence against her.” Maj. op. at sick and better; then got rather, she ob- 1180 n. 6. Of course a party’s prior state- jected to the district court’s judicial taking ments are always trial, admissible at so notice of the “unsubstantiated hearsay” long as they meet the test of relevancy contained in her applications, EDD Appel- under FRE 401. But prior inconsistent lant’s Br. at against railed the county’s representations made judicial in a proceed- “belie[f] that appellant was suffering from ing are not merely they are personality disorder,” id. at and admissible — then preclusive. That is the heart admitted that “out of soul of financial desperation judicial estoppel. ... By applied [she] saying prior that received Social judicial [sic, Security state] benefits,” statements are to be just id. treated at 13. Although her prior like illness was “potential- statements made to a fish mer- ly” temporary, nowhere does chant she allege teller, fortune the majority that she was disabled during the time that drives a stake through the heart of the she was benefits, collecting and then later doctrine of estoppel. got better, as did Nunes. Nunes has no I agree application here, with the core and to suggest holding of it Johnson does belittles representations the claims of honest plaintiffs made to disability who admit to taking disability agencies benefits dur- should be read narrowly so as not ing a leave of absence which they seek to automatically preclude plaintiffs ADA to recover from a disability. from pursuing the remedies that Congress I also note granted has that'we have given them. However, dis- I cannot trict court guidance no as to agree what to do the majority here that sworn remand —or perhaps too much guidance. statements on applications for disability The majority opinion doesn’t appear to benefits—which result in the payment of any leave room for the district court to cash benefits —should be granted no more grant summary judgment on Fredenburg’s weight than statements made casual claims. Judge Weiner concurs in that conversation. The majority’s approach al- opinion, yet strangely suggests that lows people to slough off prior inconsistent district court could nevertheless grant representations when they become incon- summary judgment in favor of the county. venient, much like a snake sheds its skin. See Weiner op. at 1184. I don’t get it. It is one thing to allow a plaintiff to ex- Given that we agree all that there was a plain how her previous representations genuine issue of fact as to whether Fre- were actually truthful and consistent with denburg could job, do her given what she claims today, Johnson; as did the majority it disavows use of ais far different thing to estoppel, look away I can’t see any from a inway which the plaintiffs previous district court representations could properly grant sum- wink mary judgment. and a nudge Because the because she was preclude cannot “forced” to lie in claims order to fenagle benefits based on her previous representations, it the welfare state. Because ma- would have weigh the evidence present- jority opinion is at loggerheads with dec- *11 and else- in our circuit precedent ades
where, I dissent. America, STATES
UNITED
Plaintiff-Appellee, CO., MARINE MERCHANT
HYUNDAI Ship
LTD.; Insur Steam Britannia Ltd., Association, Defendants-
ance
Appellants. 97-35538, 97-35820.
Nos. Appeals, States Court
United Circuit.
Ninth July and Submitted
Argued 20, 1999. April
Filed