Legal Case Summary

Good morning everyone. Judge Rendell and I are thrilled to have sitting with us this week, the Honorable Sandra Day O'Connor. Justice O'Connor, you do us honor by joining with us and deciding these cases. And this is a memorable day in the history of the third circuit. We are very, very grateful to you. Thank you so much. Thank you Chief Judge. It's a great privilege for me to be here in this very distinguished circuit and sitting with the two of you. Thank you. Thank you. Thank you. Thank you very much. I have worked with Justice O'Connor on a number of civics education initiatives, so I want to express my appreciation not only to her, but also to Chief Judge Sarka for allowing me to be part of this panel. Good. The first matter this morning is Hoheider versus United Parsle. Mr

. Perry. Thank you, Mr. Chief Judge, and may I please the court, if I may, I'd like to reserve five minutes for the panel. Your honours, the wildly divergent claims of tens of thousands of persons seeking highly individuated relief, including billions of dollars in money, cannot be certified as a class action under Rule 23B2. That is a central question in this case. That question has squarely been resolved against these plaintiffs by the decisions of the United States Supreme Court and this court. Isn't this a classic 23B2 where the class is complaining of three practices of UPS and they are seeking declaratory relief and junked of relief, training all kinds of equitable relief with very little mention of any monetary relief. Your honours, first on what they're actually seeking. These plaintiffs are seeking compensatory and punitive damages and back pay. The two named plaintiffs Hoheider and Dallow, their claim is a loan or for $3.75 million if we multiply that time to the class plus punitive damages we get up into the billions. Are punitive damages requested in the complaint? Yes, they are, Your Honor. But they were severed out. Where they severed out? They cannot be severed out. The rule for 23B2 on money certification is what relief, what relief the plaintiffs choose to seek in their complaint

. Rule 23B2 only applies if injunctive or declaratory relief is appropriate for the class as a whole. Judge Rendell, this class does not seek anything for the class as a whole. It seeks money on an individual basis and even the injunctive relief sought is highly individuated. We have thousands of plaintiffs working scores of jobs with dozens of impairments, some of which may or may not be disabilities, seeking hundreds or thousands of accommodations and the injunctive relief sought by these plaintiffs is an individualized accommodation for each class member. What they clearly say in their brief and in their proceedings below is that at this mysterious phase two that everything complicated is going to get shoved into, the district judge is supposed to somehow fashion an individualized equitable remedy for every single class member. There is no- Isn't your complaint then as to the nature of the class certification and the application of teamsters. In other words, couldn't, didn't the court properly certify this for purposes of injunctive relief leaving the back pay issue as something that only would apply if there were a protocol relating to the class itself? No, your honor for two reasons. First, assume there's no monetary relief in this case, this still cannot be certified as a class action. A typical B2 case that might have a single impairment, deafness, for example, in the B8's case, and a single position driver in the B8's case might, in the appropriate case with an appropriate plan of be certifiable under B2 because the court could truly enter an injunction applicable to the class as a whole. That's the case in the B8's case out in the Ninth Circuit. So your position is that would make it more like the typical Title VII case if there were a single impairment. Your honor, the B2 case is the sign on the wall that says no Irish need apply. And the plaintiffs who were members of that class, Irish persons who are otherwise qualified to work for that company can go in and ask for an injunction to have that sign taken down and access to the workforce. Just like the deaf plaintiffs in B8's claim to have access to that single position to which the standard life, here on every vector, this case is different than that typical case. These are different jobs

. I mean, the impairments here range from brain tumors to flat feet. The accommodations range from power steering to dollies to interpreters to all kinds of different things. There is no common thread that ties this class together. But if all of them were told you cannot return to work until you are 100% cured, isn't that just like no Irish need apply? No, your honor, it's not for two reasons. First, if we look at the named plaintiffs individualized circumstances, they clearly were not told that. They were run through the ADA compliance policy, the 10 step policy that at least on paper complies in every respect with the EEOC guidance here. So these plaintiffs, the named plaintiffs in the lawsuit, they weren't told they couldn't come back to work. They were told they would run through the ADA compliance policy. Second, even if these plaintiffs could prove that there is this so-called 100% policy, which they haven't, in which the district court did not find, expressly did not find that there is any such policy at UPS, and UPS vehemently denies that there's any such policy. That would only mean that each plaintiff would have to be accommodated. This is a failure to accommodate case. It's not an access to work case, ultimately. Their ultimate claim by these plaintiffs is that UPS is required to afford an individuated accommodation to each and every class member based on that class member's specific job, the tasks of that job, the impairments that that employee claims to preclude him or her from working at that job, and other factors that all devolve to the individual. Does that mean that, except for a single issue of disability, such as deafness, for example, that this kind of case is simply not eligible for a B2 certification at all. What would happen if there were a written policy, let's say 100%, 100% policy, you're saying that they would not be able to maintain a class action in this kind of a case

. Your honor in an ADA 102B5 case, which refers to employment qualifications, Congress expressly authorized a class of persons to proceed under the ADA. We acknowledge, we've been acknowledged in our brief, and I believe Bates is actually an example. There's different problems in Bates, but Bates is an example of a qualification case that can be challenged in the appropriate case under B2. We are not saying there's no such thing as an ADA class action. This claim is not a B5 case. This is a 102B6 case. The core liability theory here is that UPS failed to accommodate each and every class member to prevail on that case, the class member in an individual case to take the easy example. It is undisputed under this course, precedence in Williams and Taylor and the Supreme Court's precedence in Sutton, that each individual would have to prove that he is disabled, that he is otherwise qualified for the position, and that he requested and was refused a reasonable accommodation. All individuated determinations, the employer then has the opportunity to defend based on undue hardship, based on business necessity, based on direct threat. Again, all individuated decisions, if all of those hoops can be jumped through, then we have the question of individuated, injunctive relief, back pay, compensatory, and punitive damages. At every stage of this lawsuit, the questions presented and the questions that must be answered by the trial are fact are highly and specifically tailored to the individual employee and his relation to the employer. I want you to have that even in Title 7 context, as to each individual, the company is going to have to show that there were legitimate basis for the firing of the person as compared to racial or gender or whatever it is. You are always going to have individual components. Question is whether a class could be certified at all for certain purposes, and here it would seem that the three practices that they are alleging would be common and would be something that is not individualized but could be proven for the benefit of the class as a whole. How else is this kind of case going to be pursued against a UPS that has these policies? I am asking you a several questions, but isn't this exactly what the class action is meant for, showing these kinds of pattern and practices? Your honor, it absolutely is not, and again, I will return to the prototypical no Irish need apply case

. There are legitimate employment class actions. We don't dispute that. The ADA differs from Title 7. The nature of the inquiry is more individual specific at the outset. Disability, the core entitlement to claim the protection of the statute to say that one is disabled is a hotly contested issue. Employers win more of those cases in the appellate courts than employees. On the core question of disability, in a Title 7 case, I have never lit it a case, Your Honor, in this court has seen more cases than I have in which there is a serious question as to whether the claimants are women or African Americans or even if they share the religious belief sedition. Whereas in an ADA case, the core question, Mr. Holheider, he has back pain. He has been found by an arbitrator to not be disabled, yet he wants to bring a class action on behalf of a other group of persons who may similarly not be disabled. The plaintiffs recognize this problem, Your Honor. In their class definition, they identified the class as disabled persons within the ADA who have these other things. And that's a standard class definition in employment discrimination cases. A Title 7 case says all female employees of GM or all Hispanic employees of Chrysler. It doesn't say all employees

. This claim, where they initially identified it as all disabled employees, the district court struck that element from the class definition precisely because it would require too many individuated determinations just to figure out who's in the class, just to figure out who can claim the entitlement to the protections of this statute before any liability or remedies. I ask a question, Mr. Perry. I think the ADA statute has been amended now by Congress. And as of January, the new provisions go into effect. Is that right? That's correct, Justice O'Connor. And they have substantially changed what constitutes a disability, have they not? It has changed it somewhat. And there is no mention of that new legislation in the briefs. Your Honor, it was enacted after the briefing. There's actually a mention of the pending legislation in our library from a footnote and the actual legislation was enacted later. Let me answer that two ways. First, the legislation itself does not apply, except to cases filed after January 1st. That's the interpretation of the EEOC and the OLC. But second, it is important to this case. Their core claim, Mr

. Chief Judge, to return to your question on B2 certification, is that this is a claim for injunctive relief. They have abandoned any claim that they're actually disabled. This is only a regarded as disability case. You see that in their brief. They'll admit that when they get up. In the ADA Amendments Act, Congress very clearly says an employer need not accommodate a person whose sole claim to disability is being regarded as disabled. An employer need not accommodate recorded as disability persons. What injunction could these people possibly get after January 1st? If UPS has no statutory obligation, even if they can prove that every member of the class is regarded as disabled, UPS after January 1st has no obligation out of the ADA to give them any accommodation. And no federal court can order UPS to give an accommodation that's not required by the statute. Their entire claim for injunctive relief, Justice O'Connor, has been removed by this statute. They have no claim for injunctive relief. All that's left is money damages, back pay, and individual injunctive relief, such as reinstatement or adjustment of position, all of which run smack into the barn's decision, the problems of cohesiveness. Will that apply to cases filed before the effective date of the year? Your Honor, the core provisions of the amendments to only apply to cases filed afterwards. The accommodation provision is stated not as an element of the plaintiffs' cause of action, but rather as an obligation on the employer. It says, no covered entity, which is ADA-speak for an employer, need, provide, and accommodation to any person whose sole claim for a disability is being regarded as disabled

. So it's removed the obligation on the employers, and this was a compromise struck during the legislative process between the- And that would apply even in this case- I would submit- I think or round-have-to-be mitigate. Your Honor, I would submit that if UPS has no statutory obligation to accommodate Judge Conti or any other district judge, has no power to order us to accommodate it, it would be an injunction beyond the power of the statute. And remember, before the amendments, that was the law in most circuits, the ninth circuit and the seventh circuit had held that there's no duty to accommodate regarded as persons. We raised that conflict in our briefs. This court in the Williams case, it gone the other way. Congress has now resulted on a prospective basis. But remember, in a B2 class, the court question is the prospective relief sought by the plaintiffs, because to get themselves into B2, they have to claim that they are seeking prospective relief applicable to the class of the whole. What if they- Excuse me, I don't have- What if the this- Injective class were limited to only back pay relief? Would it qualify? No, Your Honor. The statute rule 23 B2 says, injunctive or corresponding to the Claretory relief. Back pay is monetary relief. The fourth circuit in the Thorn case held clearest day, that a claim for back pay doesn't qualify on its own feet for B2 certification. This is- Why wouldn't it be incidental to our part of the injunctive relief? Well, there's no injun- There's no injunctive relief available and- No, the summit is something there were. You're under for two reasons. It is monetary relief and what's at issue here are the rights of the absent class members. They propose a class

. Remember, UPS could win this mysterious phase one that the district court has proposed. All the absent class members' rights would be cut off. This is- The constitutional question, this Supreme Court confronted in the Thai court case and it has never answered whether monetary relief and a B2 kit. This court and the Barnes decision went a long way to answering it though by saying that if there's a significant risk that the absent class members' rights would be cut off. And second, if to get to that place, the court would have to resolve a large number of highly-individuated issues. Then we know that B2 isn't appropriate because the opponents, however, say that Barnes is a personal injury case and doesn't apply and the employment or disability context. So, you're under- And that's their only answer to Barnes and I would submit it's not a very good answer. This court has already held in several subsequent decisions that Barnes is a general 23 B2 case that's not limited to the personal injury context. And the rationale of Barnes is in no way tied to the cigarette addiction theory in that case. It is tied to the risks of the absent class members and the risk to the judicial system of trying thousands of highly-individuated claims in a mandatory, no opt-out, unconstitutional proceeding that could bind and deprive the absent class members of their rights. This is at bottom, Your Honor's, a B3 case. It's not a good B3 case, but it's a B3 case. It is a claim for money and individuated relief on behalf of a widely divergent group of persons, hundreds of jobs, thousands of issues. It just can't be tried as a class act. Aren't you, let me just ask one question, aren't you in essence saying there can never be a B2 action under the ADA? No, Your Honor, there can be either in two contexts in the 102 B5 qualifications context or in the single impairment, single position context like Bates, Deafness and Driving

. I do think there's an appropriate place for B2 class actions. In an appropriate case, this just isn't that case, Your Honor. And it would require the court to not only break new ground, but to disavow numerous precedents of this court and the Supreme Court to get there. Thank you. Any other questions? Mr. Perry, thank you very much. Ms. Skolling. Good morning. Good morning, Your Honor's. I would like to beg the courts indulgence in putting up with my voice. I like my class members are less than 100 percent and I'm working through Laren Gytis. I hope it will not be too difficult to hear. Thank you, Tim. This case is about UPS's systemic company-wide practices that injure employees throughout the country and deprive them of the ability of the ability to return to work after illness or injury in violation of the ADA. The district court in this case may find things based on a luminous record and her findings were very carefully honed that UPS regularly, routinely as a standard operating procedure evades the prescriptions of the ADA by engaging in three unlawful acts. The first is 100 percent health or the 100 percent no-restrictional return to work rule. She found that this rule was applied across the country based on EEOC determinations that it was not only applied to the individual but that it was a company-wide practice. Based on declarations for more than 50 persons including supervisors who not only experienced the release themselves but the supervisors actually discussed in the declarations how they were coached and trained in the de facto practice of not letting anybody come back and absolute bar to UPS re-employment after illness or injury. It's DeAngelo is a supervisor in the Charleston district and it's JA367 in his declaration where he says that he was repeatedly told by the district safety manager, one of the people in charge with implementing the ADA. Miss Miskoni, can you prevail in this case if we do not accept your argument on the teamster's pattern or practice way of handling this class actually? It would make it more difficult and it would reject a framework of paradigm that's worked in 30 years in applications of many different cases. It has worked very well in Title VII and obviously the essential question that both of you have spent a lot of time on is is this like Title VII or is it something different? Is it structurally different? Because of the elements that a someone who alleges their disabled has to prove qualification, the disabledness and perhaps the reasonable accommodation. Does that make it just a different being entirely? No, it doesn't, Your Honor. Let me answer the first question that we do not need teamsters in order to prevail. The case of Hendrix Robinson in the 11th Circuit approved the certification of an ADA class action that was very, very similar to ours. It was not a qualification case, it was not a one disability case. It was a practice of refusing to let employees return to work after being off work for a year. They've reached their maximum medical capacity. If there's not a job, they're not going to accommodate them in any job. That's a case very similar to ours because it's blocked at the gateway kind of case

. The district court in this case may find things based on a luminous record and her findings were very carefully honed that UPS regularly, routinely as a standard operating procedure evades the prescriptions of the ADA by engaging in three unlawful acts. The first is 100 percent health or the 100 percent no-restrictional return to work rule. She found that this rule was applied across the country based on EEOC determinations that it was not only applied to the individual but that it was a company-wide practice. Based on declarations for more than 50 persons including supervisors who not only experienced the release themselves but the supervisors actually discussed in the declarations how they were coached and trained in the de facto practice of not letting anybody come back and absolute bar to UPS re-employment after illness or injury. It's DeAngelo is a supervisor in the Charleston district and it's JA367 in his declaration where he says that he was repeatedly told by the district safety manager, one of the people in charge with implementing the ADA. Miss Miskoni, can you prevail in this case if we do not accept your argument on the teamster's pattern or practice way of handling this class actually? It would make it more difficult and it would reject a framework of paradigm that's worked in 30 years in applications of many different cases. It has worked very well in Title VII and obviously the essential question that both of you have spent a lot of time on is is this like Title VII or is it something different? Is it structurally different? Because of the elements that a someone who alleges their disabled has to prove qualification, the disabledness and perhaps the reasonable accommodation. Does that make it just a different being entirely? No, it doesn't, Your Honor. Let me answer the first question that we do not need teamsters in order to prevail. The case of Hendrix Robinson in the 11th Circuit approved the certification of an ADA class action that was very, very similar to ours. It was not a qualification case, it was not a one disability case. It was a practice of refusing to let employees return to work after being off work for a year. They've reached their maximum medical capacity. If there's not a job, they're not going to accommodate them in any job. That's a case very similar to ours because it's blocked at the gateway kind of case. In that case, teamsters surprisingly, I don't think was even mentioned. We think that teamsters is the approved approach, which is not only used in Title VII, but in the ADA, in retaliation cases, it's been adapted in many different types of cases. The defendants like to say that the district judge improperly imported teamsters into the ADA, but that's not the facts, Your Honor. That's not the reality. The truth is that Congress imported pattern or practice ADA case into the ADA. It's in the statute that the remedies are certainly incorporated. The powers, the procedures, and the remedies. But teams are as a creature of the Supreme Court. It's not statutory. The burden shifting and the way it is applied, it really is a methodology. It's not a statutory scheme or a methodology that's incorporated in the statute, is it? Well, under the rules of statutory interpretation, if a statute adopts procedures and remedies and practices of another statute, Congress is presumed to know the existing law. It would be very difficult to not know a law like teamsters that was cited over a thousand times when the ADA was enacted in 1990. I think Congress knew exactly what they meant when they said patterns and practices litigation. That clause from the ADA is incorporated in full, I'm sorry, that clause from the Title VII is incorporated in full in the ADA. But how does it work when you get to the second phase, where presumably the pattern and practice has been proven? Under teamsters, it is up to the employer then to show that there was no violation

. In that case, teamsters surprisingly, I don't think was even mentioned. We think that teamsters is the approved approach, which is not only used in Title VII, but in the ADA, in retaliation cases, it's been adapted in many different types of cases. The defendants like to say that the district judge improperly imported teamsters into the ADA, but that's not the facts, Your Honor. That's not the reality. The truth is that Congress imported pattern or practice ADA case into the ADA. It's in the statute that the remedies are certainly incorporated. The powers, the procedures, and the remedies. But teams are as a creature of the Supreme Court. It's not statutory. The burden shifting and the way it is applied, it really is a methodology. It's not a statutory scheme or a methodology that's incorporated in the statute, is it? Well, under the rules of statutory interpretation, if a statute adopts procedures and remedies and practices of another statute, Congress is presumed to know the existing law. It would be very difficult to not know a law like teamsters that was cited over a thousand times when the ADA was enacted in 1990. I think Congress knew exactly what they meant when they said patterns and practices litigation. That clause from the ADA is incorporated in full, I'm sorry, that clause from the Title VII is incorporated in full in the ADA. But how does it work when you get to the second phase, where presumably the pattern and practice has been proven? Under teamsters, it is up to the employer then to show that there was no violation. And with Title VII, that's showing the legitimacy of the firing or whatever. But here, should the employer be the one to have to un-unjump through the hoops, if you will, for the plaintiff with respect to all of these various aspects of disability, proven disability? It's not all these various aspects. Let me clarify one point that my opponent made. This is not just a prong-one case or prong-two case or prong-three case under the ADA. The ADA covers disabled people who are actually disabled, prong-one, two who have a record of disability, and three who are regarded as by their employer as disabled, whether or not they actually are, could be a mistake. Now, that's our class members. They have to be qualified. And that's going to be a determination of what they're capable of and what jobs were available at the time. Many, many hoops that a plaintiff of this kind has to jump through. In fact, Your Honor, there's no more hoops than the ordinary run-in-the-mill Title VII plaintiff has to jump through. The McDonald Douglas paradigm in Title VII includes qualification. The plaintiff has to prove as a prong-a-the-shakase that he or she is qualified for the job. In fact, if Title VII would say that non-qualified persons, just because they're a member of a protected minority group, can get a job that would probably have been struck down as that portion being unconstitutional. So, qualification is in Title VII. It's not in the statute

. And with Title VII, that's showing the legitimacy of the firing or whatever. But here, should the employer be the one to have to un-unjump through the hoops, if you will, for the plaintiff with respect to all of these various aspects of disability, proven disability? It's not all these various aspects. Let me clarify one point that my opponent made. This is not just a prong-one case or prong-two case or prong-three case under the ADA. The ADA covers disabled people who are actually disabled, prong-one, two who have a record of disability, and three who are regarded as by their employer as disabled, whether or not they actually are, could be a mistake. Now, that's our class members. They have to be qualified. And that's going to be a determination of what they're capable of and what jobs were available at the time. Many, many hoops that a plaintiff of this kind has to jump through. In fact, Your Honor, there's no more hoops than the ordinary run-in-the-mill Title VII plaintiff has to jump through. The McDonald Douglas paradigm in Title VII includes qualification. The plaintiff has to prove as a prong-a-the-shakase that he or she is qualified for the job. In fact, if Title VII would say that non-qualified persons, just because they're a member of a protected minority group, can get a job that would probably have been struck down as that portion being unconstitutional. So, qualification is in Title VII. It's not in the statute. It's in the case law that's been interpreting it since 1964. Qualifications the same issue under Title VII and under the ADA. Now, as far as to protect the burden to prove throughout. No, we do it exactly like Teamsters. Once we've proven our case in chief, our liability, that these practices that we allege in the court found sufficient reason for class purposes. Once we prove that it's on the merits, this is what UPS does, which we're confident we'll do. But there is Supreme Court language that the burden that prove always stays on the plaintiff and the ADA. The burden, yes, the burden of proof remains on the plaintiff, but once the plaintiff makes out its liability case, the presumption, it doesn't just disappear, as the Teamsters said. The presumption then shifts that every individual action was made in accordance with this unlawful policy. So, the plaintiff goes into the second tier armed with a presumption, which the defendants can read by showing not qualified just like they can show in Title VII, or they could show not a protected member in Title VII. And UPS says that the fact that qualification is in the statute and that disability is in the statute, how could you possibly find disability? There are so many different kinds of disability. There's only one kind of regarded as disabled, only one kind. And that means that the employer took action adverse to you because it regarded you as disabled, such as..

. It's in the case law that's been interpreting it since 1964. Qualifications the same issue under Title VII and under the ADA. Now, as far as to protect the burden to prove throughout. No, we do it exactly like Teamsters. Once we've proven our case in chief, our liability, that these practices that we allege in the court found sufficient reason for class purposes. Once we prove that it's on the merits, this is what UPS does, which we're confident we'll do. But there is Supreme Court language that the burden that prove always stays on the plaintiff and the ADA. The burden, yes, the burden of proof remains on the plaintiff, but once the plaintiff makes out its liability case, the presumption, it doesn't just disappear, as the Teamsters said. The presumption then shifts that every individual action was made in accordance with this unlawful policy. So, the plaintiff goes into the second tier armed with a presumption, which the defendants can read by showing not qualified just like they can show in Title VII, or they could show not a protected member in Title VII. And UPS says that the fact that qualification is in the statute and that disability is in the statute, how could you possibly find disability? There are so many different kinds of disability. There's only one kind of regarded as disabled, only one kind. And that means that the employer took action adverse to you because it regarded you as disabled, such as... That's assumed that you're right about that, and that Judge Conte was correct. How do you answer the cohesiveness argument? Because it would seem to me, and I was trying to figure out what a trial plan would look like in this case. It involved an individual determination on any number of issues for each climate case by case by case. No, sir. We don't think it would, and it actually couldn't, under the order that was certified by Judge Conte. She, as she did at every stage of this case, at every stage of the decision, adopted the most restrictive standards that were urged by the employer on every matter of law. So, she endorsed, or assumed that the third circuit would endorse the incidental bright line, Alison approach, rather than the Robinson ad hoc approach that we advocated. So, she said plaintiffs can go for equitable damages, for individual equitable make-hole damages, back pay, and an opportunity for reinstatement. But they have to meet a very strict protocol, the Alison protocol, that has to be incidental to the injunctive relief, and it has to be automatic and calculated on a type of formula. Okay, that's with the remedy. But before you get to that, aren't there going to be individual determinations, certainly unreasonable accommodation, unreasonable accommodation, that seemed to me that would have to be. No, I don't think that there would have to be. I think that is a practical matter. We're going to show through anecdotal evidence in the first phase that there were many disabled people who were refused the opportunity to even get through the door and show, engage in the interactive practice at this court, noted in Mijnjain, as a prelude to reasonable accommodation. There'll be many people who will be able to show that they were disabled, they were qualified, and it was impossible for them to get back to work

. That's assumed that you're right about that, and that Judge Conte was correct. How do you answer the cohesiveness argument? Because it would seem to me, and I was trying to figure out what a trial plan would look like in this case. It involved an individual determination on any number of issues for each climate case by case by case. No, sir. We don't think it would, and it actually couldn't, under the order that was certified by Judge Conte. She, as she did at every stage of this case, at every stage of the decision, adopted the most restrictive standards that were urged by the employer on every matter of law. So, she endorsed, or assumed that the third circuit would endorse the incidental bright line, Alison approach, rather than the Robinson ad hoc approach that we advocated. So, she said plaintiffs can go for equitable damages, for individual equitable make-hole damages, back pay, and an opportunity for reinstatement. But they have to meet a very strict protocol, the Alison protocol, that has to be incidental to the injunctive relief, and it has to be automatic and calculated on a type of formula. Okay, that's with the remedy. But before you get to that, aren't there going to be individual determinations, certainly unreasonable accommodation, unreasonable accommodation, that seemed to me that would have to be. No, I don't think that there would have to be. I think that is a practical matter. We're going to show through anecdotal evidence in the first phase that there were many disabled people who were refused the opportunity to even get through the door and show, engage in the interactive practice at this court, noted in Mijnjain, as a prelude to reasonable accommodation. There'll be many people who will be able to show that they were disabled, they were qualified, and it was impossible for them to get back to work. But for concept that you note of the back pay based upon a protocol that's applicable to the entire class, what could that be? Well, there are several things and she's mentioned a few of them throughout the decision. It could be, and we believe that it is actually, the more that we're learning about UPS's record keeping, that it's a procedure that is really contained within the very false and records that UPS keeps, of when people go out on disability, what the injury is, what the disability is, when they've asked for a return to work, when it's all in one system. That will be individualized. That would not like your security class action, where if you bought this stock at this point and in the class, then everybody gets X. You really can't do that in an ADA case, can you? Yes, you can, because we're asking the equitable remedy, the injunctive relief, is not in accommodation. It's the opportunity to make your case for an accommodation that these people were blocked for. And they go into stage two armed with that presumption that they were denied in accommodation because of the gateway unlawful practices. How may have it would proceed for an individual plan? An individual, after we've won at stage one, the individual one way, and I would like to mention that this is an interlocatory appeal, so we didn't have full discovery or any merits discovery, and that's why Judge Conti wisely preserved herself the discretion to manage his case under 23D, which she has. But one way would be to have, I think it was the Allison Court, that said, you need a computer and a good clerk to figure out the damages, that would be automatic. And you'd have, in this case, a computer and maybe a computer programmer sitting and looking at UPS's records and knowing what queries to ask it, which could determine everybody who was not allowed to come back. But they have to show their qualified individuals with a disability. The class has currently formed only, has people who got workers come. The class includes a lot of people that probably don't qualify for relief. Isn't that true under the current formulation? No, the class includes people who were out and were not allowed back, so it does include other people for the most part. People who had temporary, as I understand it, was primarily people on temporary disability, or as Judge Randallis said, people that were collecting workers come

. But for concept that you note of the back pay based upon a protocol that's applicable to the entire class, what could that be? Well, there are several things and she's mentioned a few of them throughout the decision. It could be, and we believe that it is actually, the more that we're learning about UPS's record keeping, that it's a procedure that is really contained within the very false and records that UPS keeps, of when people go out on disability, what the injury is, what the disability is, when they've asked for a return to work, when it's all in one system. That will be individualized. That would not like your security class action, where if you bought this stock at this point and in the class, then everybody gets X. You really can't do that in an ADA case, can you? Yes, you can, because we're asking the equitable remedy, the injunctive relief, is not in accommodation. It's the opportunity to make your case for an accommodation that these people were blocked for. And they go into stage two armed with that presumption that they were denied in accommodation because of the gateway unlawful practices. How may have it would proceed for an individual plan? An individual, after we've won at stage one, the individual one way, and I would like to mention that this is an interlocatory appeal, so we didn't have full discovery or any merits discovery, and that's why Judge Conti wisely preserved herself the discretion to manage his case under 23D, which she has. But one way would be to have, I think it was the Allison Court, that said, you need a computer and a good clerk to figure out the damages, that would be automatic. And you'd have, in this case, a computer and maybe a computer programmer sitting and looking at UPS's records and knowing what queries to ask it, which could determine everybody who was not allowed to come back. But they have to show their qualified individuals with a disability. The class has currently formed only, has people who got workers come. The class includes a lot of people that probably don't qualify for relief. Isn't that true under the current formulation? No, the class includes people who were out and were not allowed back, so it does include other people for the most part. People who had temporary, as I understand it, was primarily people on temporary disability, or as Judge Randallis said, people that were collecting workers come. No, the UPS has a system called the Tau's program that allows people with temporary disabilities who are in workers' comp to return to work. But that program is almost another per-safe violation, because it only allows you to return to work for 30 days, which means that you have a temporary disability and you're not qualified under the ADA. Once it's more than 30 days, you can't come back under the Tau's program. They reject you. So for the most part, the class members will be people out on longer term workers' comp or disability because of an illness or injury. And they will be looking for, it's primarily unskilled jobs. They will be looking to return to jobs that they know better than anyone else because of their returning workers. They know the jobs and they will be presumed to be qualified and they will be presumed to be regarded as disabled because UPS took adverse action against them that perfectly fits the definition of regarded as disabled. And as far as the applicability of the new law, I disagree with something that Mr. Perry said. It does go into effect January 2009 and that issue was not briefed. But it seemed to me from the very quick reading I did on the Lions graph case in some of its progeny that since this case is requesting prospective relief primarily, which is what it really is all about, Judge Conti will have to apply the laws that exist at the time. And the trial will be held in all likelihood after January 1st 2009. So the new act most likely will apply. The new act removes any doubt that Congress meant what it said in 1990 when they said we want this act to be given a broad interpretation

. No, the UPS has a system called the Tau's program that allows people with temporary disabilities who are in workers' comp to return to work. But that program is almost another per-safe violation, because it only allows you to return to work for 30 days, which means that you have a temporary disability and you're not qualified under the ADA. Once it's more than 30 days, you can't come back under the Tau's program. They reject you. So for the most part, the class members will be people out on longer term workers' comp or disability because of an illness or injury. And they will be looking for, it's primarily unskilled jobs. They will be looking to return to jobs that they know better than anyone else because of their returning workers. They know the jobs and they will be presumed to be qualified and they will be presumed to be regarded as disabled because UPS took adverse action against them that perfectly fits the definition of regarded as disabled. And as far as the applicability of the new law, I disagree with something that Mr. Perry said. It does go into effect January 2009 and that issue was not briefed. But it seemed to me from the very quick reading I did on the Lions graph case in some of its progeny that since this case is requesting prospective relief primarily, which is what it really is all about, Judge Conti will have to apply the laws that exist at the time. And the trial will be held in all likelihood after January 1st 2009. So the new act most likely will apply. The new act removes any doubt that Congress meant what it said in 1990 when they said we want this act to be given a broad interpretation. The legislative history of the new act says this act mirrors title seven. And the exact words in the act make it far easier burden to show qualification even under prong one that it's much easier to show a disability than the courts have interpreted the law to be. And in fact, it says that we want the courts to spend more attention looking at the defendants kind of. Do you think it applies to situations that occur before the law goes into effect? I think it does because I think it first it's a clarifying statute as they point out we're not creating new rights or obligations. We're just clarifying what we meant back in 1990. So it's not imposing new burdens on people as a surprise. And second, I think the issue of retroactive application might not even come up under one of the holdings in Lange's graph that says when prospective relief is an issue which it is here, you must apply the laws that exist at the time. You don't even get into looking at retroactivity. So you don't have to even do that difficult analysis. But the act says the new act has been said and it's thinking about individual cases here I believe not class actions necessarily. We want you judges to spend more time focusing on the defendants conduct rather than the extent of the plaintiffs' disability which fits perfectly and eases the burden of everybody on the second stage because most of our plaintiffs, class members will be class one, prong one, actual disabled under the act. Now as far as regarded as under the amendments there'll be no regarded as no the amendments left the three categories unchanged completely. There's still the three categories and they still use the same words for them record of and regarded as. Now under the regarded as Mr. Perry is correct

. The legislative history of the new act says this act mirrors title seven. And the exact words in the act make it far easier burden to show qualification even under prong one that it's much easier to show a disability than the courts have interpreted the law to be. And in fact, it says that we want the courts to spend more attention looking at the defendants kind of. Do you think it applies to situations that occur before the law goes into effect? I think it does because I think it first it's a clarifying statute as they point out we're not creating new rights or obligations. We're just clarifying what we meant back in 1990. So it's not imposing new burdens on people as a surprise. And second, I think the issue of retroactive application might not even come up under one of the holdings in Lange's graph that says when prospective relief is an issue which it is here, you must apply the laws that exist at the time. You don't even get into looking at retroactivity. So you don't have to even do that difficult analysis. But the act says the new act has been said and it's thinking about individual cases here I believe not class actions necessarily. We want you judges to spend more time focusing on the defendants conduct rather than the extent of the plaintiffs' disability which fits perfectly and eases the burden of everybody on the second stage because most of our plaintiffs, class members will be class one, prong one, actual disabled under the act. Now as far as regarded as under the amendments there'll be no regarded as no the amendments left the three categories unchanged completely. There's still the three categories and they still use the same words for them record of and regarded as. Now under the regarded as Mr. Perry is correct. They did say an employer has no obligation to accommodate a person who is solely and that's a huge word solely entitled to protection under this act as regarded as person. Now in the legislative history they explain that and they say as Mr. Perry said it's a compromise. But the reason we are willing to make this compromise even though this act is so important and should be so broadly interpreted we're willing to make this compromise because we think there'll be very few people in that category if they were discriminated against by their employer as every one of our class members were they will likely be found to be actually disabled under prong one because we've eased the burden so greatly. So it's only for those people as a practical matter when we go to the second stage here I think what will probably happen is those people who asked to return to work could not provide a hundred percent release but didn't need an accommodation but UPS said no no a hundred percent release we don't want you not a hundred percent they didn't even need an accommodation they would be regarded as employees and they wouldn't be asking for or needing an accommodation. What about the ones who might need an accommodation how would that be? I think there's also very false in records on what the accommodation is it's usually very minor things such as a step ladder power steering truck that UPS has not buying a new one but just the use of one that already has in its facility things that would be pretty ascertainable from the record these are workers that the difference between this class and some of the wide ranging classes in Title VII that have been approved this is really a very very narrow class it's big just by the magnitude of the defendants wrongdoing and by the number it's size the number of employees. The class doesn't even include in its definition that the people have to be qualified individuals with the disability the class includes people who have been out of work or filed for workers come which which means people who do not qualify for any relief under the ADA are included in this class how how can that be? Well that's not quite right your honor what what district the district judge conceded is she rewrote the class somewhat she modified the plaintiffs version which is this court knows is proper under Chang versus Venomine the court did it themselves and she took out any reference to the law because she knows of the circular reasoning of the ADA are you qualified and disabled well it gets into a circle so she made it very fact specific in the class includes those persons who have been out of work from UPS and have been unable to return because of one of these three reasons but they might may not be entitled to relief under the ADA they may not be qualified individuals with a disability which is your ticket to get into the ADA so the class is over inclusive and it includes people who really aren't entitled to relief doesn't it? No it doesn't anymore than a title seven case that would say all women like for example in dukes all women who have been denied promotions who have been denied training who have had their pay held back is our class that includes women who didn't deserve the promotion who were on qualify for the promotion it includes women who didn't want the training or couldn't do the training but they are women and the our plaintiffs are have a record of or is regarded as disabled every not the class that's not what the class definition is that class does not have any reference to qualified individuals with a disability disability includes regarded as so doesn't that definition have to include disabled persons as defined under the law which would include regarded as it has to encompass them factually which is exactly what this does if you're if you're out because of illness or injury and you can't come back because of a policy that doesn't let you even make a case for a reasonable accommodation that's a definition of it's regarded as you are being regarded as disabled by your employer in most instances these people because of UPS's false record keeping also have a record of disability which would be and that record will probably tremendously ease the the second stage of this trial if I could just quickly sum up if this case is not affirmed it would mean as a practical matter that you can have any ADA practice and policies class action in direct contravention to what Congress said in 1990 when they imported the statute and in complete contravention to what they said in 2008 it's a temporary 2008 when they said we met it when we said it we want the remedies to mirror the remedies of Title 7 and with this district court judge who was so careful to avoid reversal by an every turn doing going with the UPS that's not to be afraid of us you know how to quite that way was she she found the facts scrupulously she gave attention to the defendants facts she gave white to the plans facts and the reason that she did this is because facts are overwhelming intentional blatant discrimination of a kind that is very similar to no Irish need apply that's what our case is it's if you're not 100 percent don't come back and it's really an arrow class of just former workers who know their job well who want to come back and the ADA says they should and the problem of figuring out the second stage of the the hearing is to burn some cumbersome not cohesive and not manageable that's for the district court to decide she she has a discretion to decide that it's not before you this is an interdoctory briefing the full record is not before you it belongs with the district court where she left that's that's one other problem is that she left some items to be decided later on and the amendments to the civil rules in 2003 make pretty clear that district court is not supposed to do that supposed to make findings make determinations it prior prior to surgery it did your honor but if I may in the walk tell decision which very carefully said you have to define the class and the claims and the issues and the defenses it looked at the class and said this was well done the rest of it wasn't done at all but the class was well done and if you look at the class your honor it's attentive class the the district court said we're going to keep in all the HMO plans at this time we might change that as a case procedure which is really quite similar to what judge County said we're going to keep and junk to really at this time but I may change my mind thank you any other questions good the Skolnik thank you very much thank you sir thank you your honors judge and Dale this case is called hohider versus ups mark hohider is not disabled mark hohider is not qualified and ups did not fail to accommodate mark hohider an arbitrator after an evidentiary hearing made all of those findings it's in the record j-a-a-8 27 judge county made some factual findings she skipped a lot more factual findings she made no factual finding that the named plaintiff in a class action lawsuit is qualified to claim the entitlement of the statute she made no finding that the name plaintiff in a class action lawsuit was discriminated against by ups she made no finding that the 100% policy even exists she made no finding that anything these plaintiffs are complaining about adversely affected the name plaintiff in the lawsuit Mr. Chief Judge that leads to this team search question there are three ways to think about the team search question everybody agrees the Skolnik just agreed that disability qualification and failure to accommodate are elements of the plaintiffs cause of action option number one is that every class member must bear the burden of proving those things before liability judgment can be entered against ups that's ups's position based on the text of the statute option number two is that some significant number of class members must make those determinations before liability judgment can be entered that's teamsters if you actually look at teamsters in teamsters the government plaintiff proved actual specific instances intentional discrimination against 40 Hispanic surname truck drivers before any inference arose of discrimination against the 41st which leads us to number three option three which is that nobody no plaintiff any class member has to prove disability qualification or accommodation before some judgment of liability liability for what is a good question gets entered against ups that's judge counties position that's these plaintiffs decision that's not teamsters that has no basis in the law it has no basis in title seven option two teamsters true teamsters we don't think it's consistent with the ADA for reasons on our brief but at minimum the named plaintiffs have to prove qualifications that's the holding of the on bank nine circuit and bates I mean this court couldn't defer this certification without creating a square conflict with the on bank nine circuit on that precise question in an ADA class action involving this same company and you know we know that case pretty well too the plaintiffs seem to say seem to argue that the regarded as the way of looking at cleans up a lot of problems your honor they have a view of regarded as that is fundamentally flatly irreconcilable with the opinion that justice so Connor authored for the Supreme Court and Sutton which explained what regarded as means regarded as under the ADA is an individualized determination the employer must either regard an actual impairment as substantially limiting when it's not or regard a non-existent impairment as substantially limiting both of those are individualized as terminations there is no such thing as regarded as in gross there's no case that says that there's no theory that supports it it's not in the statute it's not in the amendments and nothing changes that that is Supreme Court precedent that their theory runs smack into they can't explain it they have no answer to that this notion that regarded as floats around anybody you don't let back to work as regarded as disabled is nonsense there's no case that says that and if it were then this class could be picked up and dropped lock stop and barrel to every at least manual service company that has people to go out on workers come isn't there reference in the bates and bank opinion to the effect that a 100% cure policy is discrimination per se the ninth circuit has a previous opinion called McGregor that held that in for a different company we we don't think that's right I don't personally don't think there's anything such thing as discrimination per se in the ADA but look at the 100% in this policy the most they can show is that if you have a hundred percent that is a full work release from your doctor you can go back to your previous position if you don't have that you have to go through the ADA compliance manual that's entirely process that's entirely consistent with the EOC's guidance that's not discrimination because remember the ADA is a self selection statute the employer is not even allowed to ask about impairments and medical conditions and mental conditions and so forth unless the employee self identifies as requiring an accommodation 100% has nothing to do with that our we have UPS has a formalized policy that lets people go into that which leads to the trial plan at some point in this litigation everybody 100% 10 step plan temporary alternate work anything has to prove that they are disabled qualified and not accommodated at some point in this litigation the plaintiffs bear that burden to prove judge Conti simply punted that question she said they're going to have some amorphous liability determination and then decide all that stuff later that's not acceptable after 2003 that's not acceptable under walk tell it is it is simply putting the hammer of a class action against this company without any showing that the actual case could be tried tried in a way that's good for the judicial system and tried in a way that protects the due process rights of the absent class members miss Kohlnick spoke for 20 minutes I didn't hear or talk about those absent class members it's a little odd for the company to be doing that but I think it's a very important thing is a mandatory no opt out class action that they proceed to try here we can win this case if they want to try this class action we can win it and we will try it UPS is not going to settle this case we tried baits for 10 years and baits is still going this judge is going to have to try this case she has shown no way that she can actually try it to the end to a verdict or something gets entered and is appealable as a final judgment to this court but I think that's something that this court could take into account miss Kohlnick Mr. Sheffead you asked her that question and she said well that's not before the court we'll have to work it out later the whole purpose of 23F appeals is to make sure that a class action is possible before it starts so that we don't run into the due process problems five years down the road so that we don't run back to this court on a mandamus petition or at 1292 B or something else because this is a case that can't be tried the amendments acts finally or honor if the court would like supplemental briefing I guess we'd be happy to do that I disagree on retroactivity and so forth but well we will discuss that and if we wish further briefing we will let the parties know any other questions very thank you very much thank you case was extremely well-briefed and extremely well argued we will take this matter under advisement I would like to have a transcript of the oral argument that's the parties to share and the cost of the transcript and check with the clerk's office and we'll tell you how to do that thank you both very much

Good morning everyone. Judge Rendell and I are thrilled to have sitting with us this week, the Honorable Sandra Day O'Connor. Justice O'Connor, you do us honor by joining with us and deciding these cases. And this is a memorable day in the history of the third circuit. We are very, very grateful to you. Thank you so much. Thank you Chief Judge. It's a great privilege for me to be here in this very distinguished circuit and sitting with the two of you. Thank you. Thank you. Thank you. Thank you very much. I have worked with Justice O'Connor on a number of civics education initiatives, so I want to express my appreciation not only to her, but also to Chief Judge Sarka for allowing me to be part of this panel. Good. The first matter this morning is Hoheider versus United Parsle. Mr. Perry. Thank you, Mr. Chief Judge, and may I please the court, if I may, I'd like to reserve five minutes for the panel. Your honours, the wildly divergent claims of tens of thousands of persons seeking highly individuated relief, including billions of dollars in money, cannot be certified as a class action under Rule 23B2. That is a central question in this case. That question has squarely been resolved against these plaintiffs by the decisions of the United States Supreme Court and this court. Isn't this a classic 23B2 where the class is complaining of three practices of UPS and they are seeking declaratory relief and junked of relief, training all kinds of equitable relief with very little mention of any monetary relief. Your honours, first on what they're actually seeking. These plaintiffs are seeking compensatory and punitive damages and back pay. The two named plaintiffs Hoheider and Dallow, their claim is a loan or for $3.75 million if we multiply that time to the class plus punitive damages we get up into the billions. Are punitive damages requested in the complaint? Yes, they are, Your Honor. But they were severed out. Where they severed out? They cannot be severed out. The rule for 23B2 on money certification is what relief, what relief the plaintiffs choose to seek in their complaint. Rule 23B2 only applies if injunctive or declaratory relief is appropriate for the class as a whole. Judge Rendell, this class does not seek anything for the class as a whole. It seeks money on an individual basis and even the injunctive relief sought is highly individuated. We have thousands of plaintiffs working scores of jobs with dozens of impairments, some of which may or may not be disabilities, seeking hundreds or thousands of accommodations and the injunctive relief sought by these plaintiffs is an individualized accommodation for each class member. What they clearly say in their brief and in their proceedings below is that at this mysterious phase two that everything complicated is going to get shoved into, the district judge is supposed to somehow fashion an individualized equitable remedy for every single class member. There is no- Isn't your complaint then as to the nature of the class certification and the application of teamsters. In other words, couldn't, didn't the court properly certify this for purposes of injunctive relief leaving the back pay issue as something that only would apply if there were a protocol relating to the class itself? No, your honor for two reasons. First, assume there's no monetary relief in this case, this still cannot be certified as a class action. A typical B2 case that might have a single impairment, deafness, for example, in the B8's case, and a single position driver in the B8's case might, in the appropriate case with an appropriate plan of be certifiable under B2 because the court could truly enter an injunction applicable to the class as a whole. That's the case in the B8's case out in the Ninth Circuit. So your position is that would make it more like the typical Title VII case if there were a single impairment. Your honor, the B2 case is the sign on the wall that says no Irish need apply. And the plaintiffs who were members of that class, Irish persons who are otherwise qualified to work for that company can go in and ask for an injunction to have that sign taken down and access to the workforce. Just like the deaf plaintiffs in B8's claim to have access to that single position to which the standard life, here on every vector, this case is different than that typical case. These are different jobs. I mean, the impairments here range from brain tumors to flat feet. The accommodations range from power steering to dollies to interpreters to all kinds of different things. There is no common thread that ties this class together. But if all of them were told you cannot return to work until you are 100% cured, isn't that just like no Irish need apply? No, your honor, it's not for two reasons. First, if we look at the named plaintiffs individualized circumstances, they clearly were not told that. They were run through the ADA compliance policy, the 10 step policy that at least on paper complies in every respect with the EEOC guidance here. So these plaintiffs, the named plaintiffs in the lawsuit, they weren't told they couldn't come back to work. They were told they would run through the ADA compliance policy. Second, even if these plaintiffs could prove that there is this so-called 100% policy, which they haven't, in which the district court did not find, expressly did not find that there is any such policy at UPS, and UPS vehemently denies that there's any such policy. That would only mean that each plaintiff would have to be accommodated. This is a failure to accommodate case. It's not an access to work case, ultimately. Their ultimate claim by these plaintiffs is that UPS is required to afford an individuated accommodation to each and every class member based on that class member's specific job, the tasks of that job, the impairments that that employee claims to preclude him or her from working at that job, and other factors that all devolve to the individual. Does that mean that, except for a single issue of disability, such as deafness, for example, that this kind of case is simply not eligible for a B2 certification at all. What would happen if there were a written policy, let's say 100%, 100% policy, you're saying that they would not be able to maintain a class action in this kind of a case. Your honor in an ADA 102B5 case, which refers to employment qualifications, Congress expressly authorized a class of persons to proceed under the ADA. We acknowledge, we've been acknowledged in our brief, and I believe Bates is actually an example. There's different problems in Bates, but Bates is an example of a qualification case that can be challenged in the appropriate case under B2. We are not saying there's no such thing as an ADA class action. This claim is not a B5 case. This is a 102B6 case. The core liability theory here is that UPS failed to accommodate each and every class member to prevail on that case, the class member in an individual case to take the easy example. It is undisputed under this course, precedence in Williams and Taylor and the Supreme Court's precedence in Sutton, that each individual would have to prove that he is disabled, that he is otherwise qualified for the position, and that he requested and was refused a reasonable accommodation. All individuated determinations, the employer then has the opportunity to defend based on undue hardship, based on business necessity, based on direct threat. Again, all individuated decisions, if all of those hoops can be jumped through, then we have the question of individuated, injunctive relief, back pay, compensatory, and punitive damages. At every stage of this lawsuit, the questions presented and the questions that must be answered by the trial are fact are highly and specifically tailored to the individual employee and his relation to the employer. I want you to have that even in Title 7 context, as to each individual, the company is going to have to show that there were legitimate basis for the firing of the person as compared to racial or gender or whatever it is. You are always going to have individual components. Question is whether a class could be certified at all for certain purposes, and here it would seem that the three practices that they are alleging would be common and would be something that is not individualized but could be proven for the benefit of the class as a whole. How else is this kind of case going to be pursued against a UPS that has these policies? I am asking you a several questions, but isn't this exactly what the class action is meant for, showing these kinds of pattern and practices? Your honor, it absolutely is not, and again, I will return to the prototypical no Irish need apply case. There are legitimate employment class actions. We don't dispute that. The ADA differs from Title 7. The nature of the inquiry is more individual specific at the outset. Disability, the core entitlement to claim the protection of the statute to say that one is disabled is a hotly contested issue. Employers win more of those cases in the appellate courts than employees. On the core question of disability, in a Title 7 case, I have never lit it a case, Your Honor, in this court has seen more cases than I have in which there is a serious question as to whether the claimants are women or African Americans or even if they share the religious belief sedition. Whereas in an ADA case, the core question, Mr. Holheider, he has back pain. He has been found by an arbitrator to not be disabled, yet he wants to bring a class action on behalf of a other group of persons who may similarly not be disabled. The plaintiffs recognize this problem, Your Honor. In their class definition, they identified the class as disabled persons within the ADA who have these other things. And that's a standard class definition in employment discrimination cases. A Title 7 case says all female employees of GM or all Hispanic employees of Chrysler. It doesn't say all employees. This claim, where they initially identified it as all disabled employees, the district court struck that element from the class definition precisely because it would require too many individuated determinations just to figure out who's in the class, just to figure out who can claim the entitlement to the protections of this statute before any liability or remedies. I ask a question, Mr. Perry. I think the ADA statute has been amended now by Congress. And as of January, the new provisions go into effect. Is that right? That's correct, Justice O'Connor. And they have substantially changed what constitutes a disability, have they not? It has changed it somewhat. And there is no mention of that new legislation in the briefs. Your Honor, it was enacted after the briefing. There's actually a mention of the pending legislation in our library from a footnote and the actual legislation was enacted later. Let me answer that two ways. First, the legislation itself does not apply, except to cases filed after January 1st. That's the interpretation of the EEOC and the OLC. But second, it is important to this case. Their core claim, Mr. Chief Judge, to return to your question on B2 certification, is that this is a claim for injunctive relief. They have abandoned any claim that they're actually disabled. This is only a regarded as disability case. You see that in their brief. They'll admit that when they get up. In the ADA Amendments Act, Congress very clearly says an employer need not accommodate a person whose sole claim to disability is being regarded as disabled. An employer need not accommodate recorded as disability persons. What injunction could these people possibly get after January 1st? If UPS has no statutory obligation, even if they can prove that every member of the class is regarded as disabled, UPS after January 1st has no obligation out of the ADA to give them any accommodation. And no federal court can order UPS to give an accommodation that's not required by the statute. Their entire claim for injunctive relief, Justice O'Connor, has been removed by this statute. They have no claim for injunctive relief. All that's left is money damages, back pay, and individual injunctive relief, such as reinstatement or adjustment of position, all of which run smack into the barn's decision, the problems of cohesiveness. Will that apply to cases filed before the effective date of the year? Your Honor, the core provisions of the amendments to only apply to cases filed afterwards. The accommodation provision is stated not as an element of the plaintiffs' cause of action, but rather as an obligation on the employer. It says, no covered entity, which is ADA-speak for an employer, need, provide, and accommodation to any person whose sole claim for a disability is being regarded as disabled. So it's removed the obligation on the employers, and this was a compromise struck during the legislative process between the- And that would apply even in this case- I would submit- I think or round-have-to-be mitigate. Your Honor, I would submit that if UPS has no statutory obligation to accommodate Judge Conti or any other district judge, has no power to order us to accommodate it, it would be an injunction beyond the power of the statute. And remember, before the amendments, that was the law in most circuits, the ninth circuit and the seventh circuit had held that there's no duty to accommodate regarded as persons. We raised that conflict in our briefs. This court in the Williams case, it gone the other way. Congress has now resulted on a prospective basis. But remember, in a B2 class, the court question is the prospective relief sought by the plaintiffs, because to get themselves into B2, they have to claim that they are seeking prospective relief applicable to the class of the whole. What if they- Excuse me, I don't have- What if the this- Injective class were limited to only back pay relief? Would it qualify? No, Your Honor. The statute rule 23 B2 says, injunctive or corresponding to the Claretory relief. Back pay is monetary relief. The fourth circuit in the Thorn case held clearest day, that a claim for back pay doesn't qualify on its own feet for B2 certification. This is- Why wouldn't it be incidental to our part of the injunctive relief? Well, there's no injun- There's no injunctive relief available and- No, the summit is something there were. You're under for two reasons. It is monetary relief and what's at issue here are the rights of the absent class members. They propose a class. Remember, UPS could win this mysterious phase one that the district court has proposed. All the absent class members' rights would be cut off. This is- The constitutional question, this Supreme Court confronted in the Thai court case and it has never answered whether monetary relief and a B2 kit. This court and the Barnes decision went a long way to answering it though by saying that if there's a significant risk that the absent class members' rights would be cut off. And second, if to get to that place, the court would have to resolve a large number of highly-individuated issues. Then we know that B2 isn't appropriate because the opponents, however, say that Barnes is a personal injury case and doesn't apply and the employment or disability context. So, you're under- And that's their only answer to Barnes and I would submit it's not a very good answer. This court has already held in several subsequent decisions that Barnes is a general 23 B2 case that's not limited to the personal injury context. And the rationale of Barnes is in no way tied to the cigarette addiction theory in that case. It is tied to the risks of the absent class members and the risk to the judicial system of trying thousands of highly-individuated claims in a mandatory, no opt-out, unconstitutional proceeding that could bind and deprive the absent class members of their rights. This is at bottom, Your Honor's, a B3 case. It's not a good B3 case, but it's a B3 case. It is a claim for money and individuated relief on behalf of a widely divergent group of persons, hundreds of jobs, thousands of issues. It just can't be tried as a class act. Aren't you, let me just ask one question, aren't you in essence saying there can never be a B2 action under the ADA? No, Your Honor, there can be either in two contexts in the 102 B5 qualifications context or in the single impairment, single position context like Bates, Deafness and Driving. I do think there's an appropriate place for B2 class actions. In an appropriate case, this just isn't that case, Your Honor. And it would require the court to not only break new ground, but to disavow numerous precedents of this court and the Supreme Court to get there. Thank you. Any other questions? Mr. Perry, thank you very much. Ms. Skolling. Good morning. Good morning, Your Honor's. I would like to beg the courts indulgence in putting up with my voice. I like my class members are less than 100 percent and I'm working through Laren Gytis. I hope it will not be too difficult to hear. Thank you, Tim. This case is about UPS's systemic company-wide practices that injure employees throughout the country and deprive them of the ability of the ability to return to work after illness or injury in violation of the ADA. The district court in this case may find things based on a luminous record and her findings were very carefully honed that UPS regularly, routinely as a standard operating procedure evades the prescriptions of the ADA by engaging in three unlawful acts. The first is 100 percent health or the 100 percent no-restrictional return to work rule. She found that this rule was applied across the country based on EEOC determinations that it was not only applied to the individual but that it was a company-wide practice. Based on declarations for more than 50 persons including supervisors who not only experienced the release themselves but the supervisors actually discussed in the declarations how they were coached and trained in the de facto practice of not letting anybody come back and absolute bar to UPS re-employment after illness or injury. It's DeAngelo is a supervisor in the Charleston district and it's JA367 in his declaration where he says that he was repeatedly told by the district safety manager, one of the people in charge with implementing the ADA. Miss Miskoni, can you prevail in this case if we do not accept your argument on the teamster's pattern or practice way of handling this class actually? It would make it more difficult and it would reject a framework of paradigm that's worked in 30 years in applications of many different cases. It has worked very well in Title VII and obviously the essential question that both of you have spent a lot of time on is is this like Title VII or is it something different? Is it structurally different? Because of the elements that a someone who alleges their disabled has to prove qualification, the disabledness and perhaps the reasonable accommodation. Does that make it just a different being entirely? No, it doesn't, Your Honor. Let me answer the first question that we do not need teamsters in order to prevail. The case of Hendrix Robinson in the 11th Circuit approved the certification of an ADA class action that was very, very similar to ours. It was not a qualification case, it was not a one disability case. It was a practice of refusing to let employees return to work after being off work for a year. They've reached their maximum medical capacity. If there's not a job, they're not going to accommodate them in any job. That's a case very similar to ours because it's blocked at the gateway kind of case. In that case, teamsters surprisingly, I don't think was even mentioned. We think that teamsters is the approved approach, which is not only used in Title VII, but in the ADA, in retaliation cases, it's been adapted in many different types of cases. The defendants like to say that the district judge improperly imported teamsters into the ADA, but that's not the facts, Your Honor. That's not the reality. The truth is that Congress imported pattern or practice ADA case into the ADA. It's in the statute that the remedies are certainly incorporated. The powers, the procedures, and the remedies. But teams are as a creature of the Supreme Court. It's not statutory. The burden shifting and the way it is applied, it really is a methodology. It's not a statutory scheme or a methodology that's incorporated in the statute, is it? Well, under the rules of statutory interpretation, if a statute adopts procedures and remedies and practices of another statute, Congress is presumed to know the existing law. It would be very difficult to not know a law like teamsters that was cited over a thousand times when the ADA was enacted in 1990. I think Congress knew exactly what they meant when they said patterns and practices litigation. That clause from the ADA is incorporated in full, I'm sorry, that clause from the Title VII is incorporated in full in the ADA. But how does it work when you get to the second phase, where presumably the pattern and practice has been proven? Under teamsters, it is up to the employer then to show that there was no violation. And with Title VII, that's showing the legitimacy of the firing or whatever. But here, should the employer be the one to have to un-unjump through the hoops, if you will, for the plaintiff with respect to all of these various aspects of disability, proven disability? It's not all these various aspects. Let me clarify one point that my opponent made. This is not just a prong-one case or prong-two case or prong-three case under the ADA. The ADA covers disabled people who are actually disabled, prong-one, two who have a record of disability, and three who are regarded as by their employer as disabled, whether or not they actually are, could be a mistake. Now, that's our class members. They have to be qualified. And that's going to be a determination of what they're capable of and what jobs were available at the time. Many, many hoops that a plaintiff of this kind has to jump through. In fact, Your Honor, there's no more hoops than the ordinary run-in-the-mill Title VII plaintiff has to jump through. The McDonald Douglas paradigm in Title VII includes qualification. The plaintiff has to prove as a prong-a-the-shakase that he or she is qualified for the job. In fact, if Title VII would say that non-qualified persons, just because they're a member of a protected minority group, can get a job that would probably have been struck down as that portion being unconstitutional. So, qualification is in Title VII. It's not in the statute. It's in the case law that's been interpreting it since 1964. Qualifications the same issue under Title VII and under the ADA. Now, as far as to protect the burden to prove throughout. No, we do it exactly like Teamsters. Once we've proven our case in chief, our liability, that these practices that we allege in the court found sufficient reason for class purposes. Once we prove that it's on the merits, this is what UPS does, which we're confident we'll do. But there is Supreme Court language that the burden that prove always stays on the plaintiff and the ADA. The burden, yes, the burden of proof remains on the plaintiff, but once the plaintiff makes out its liability case, the presumption, it doesn't just disappear, as the Teamsters said. The presumption then shifts that every individual action was made in accordance with this unlawful policy. So, the plaintiff goes into the second tier armed with a presumption, which the defendants can read by showing not qualified just like they can show in Title VII, or they could show not a protected member in Title VII. And UPS says that the fact that qualification is in the statute and that disability is in the statute, how could you possibly find disability? There are so many different kinds of disability. There's only one kind of regarded as disabled, only one kind. And that means that the employer took action adverse to you because it regarded you as disabled, such as... That's assumed that you're right about that, and that Judge Conte was correct. How do you answer the cohesiveness argument? Because it would seem to me, and I was trying to figure out what a trial plan would look like in this case. It involved an individual determination on any number of issues for each climate case by case by case. No, sir. We don't think it would, and it actually couldn't, under the order that was certified by Judge Conte. She, as she did at every stage of this case, at every stage of the decision, adopted the most restrictive standards that were urged by the employer on every matter of law. So, she endorsed, or assumed that the third circuit would endorse the incidental bright line, Alison approach, rather than the Robinson ad hoc approach that we advocated. So, she said plaintiffs can go for equitable damages, for individual equitable make-hole damages, back pay, and an opportunity for reinstatement. But they have to meet a very strict protocol, the Alison protocol, that has to be incidental to the injunctive relief, and it has to be automatic and calculated on a type of formula. Okay, that's with the remedy. But before you get to that, aren't there going to be individual determinations, certainly unreasonable accommodation, unreasonable accommodation, that seemed to me that would have to be. No, I don't think that there would have to be. I think that is a practical matter. We're going to show through anecdotal evidence in the first phase that there were many disabled people who were refused the opportunity to even get through the door and show, engage in the interactive practice at this court, noted in Mijnjain, as a prelude to reasonable accommodation. There'll be many people who will be able to show that they were disabled, they were qualified, and it was impossible for them to get back to work. But for concept that you note of the back pay based upon a protocol that's applicable to the entire class, what could that be? Well, there are several things and she's mentioned a few of them throughout the decision. It could be, and we believe that it is actually, the more that we're learning about UPS's record keeping, that it's a procedure that is really contained within the very false and records that UPS keeps, of when people go out on disability, what the injury is, what the disability is, when they've asked for a return to work, when it's all in one system. That will be individualized. That would not like your security class action, where if you bought this stock at this point and in the class, then everybody gets X. You really can't do that in an ADA case, can you? Yes, you can, because we're asking the equitable remedy, the injunctive relief, is not in accommodation. It's the opportunity to make your case for an accommodation that these people were blocked for. And they go into stage two armed with that presumption that they were denied in accommodation because of the gateway unlawful practices. How may have it would proceed for an individual plan? An individual, after we've won at stage one, the individual one way, and I would like to mention that this is an interlocatory appeal, so we didn't have full discovery or any merits discovery, and that's why Judge Conti wisely preserved herself the discretion to manage his case under 23D, which she has. But one way would be to have, I think it was the Allison Court, that said, you need a computer and a good clerk to figure out the damages, that would be automatic. And you'd have, in this case, a computer and maybe a computer programmer sitting and looking at UPS's records and knowing what queries to ask it, which could determine everybody who was not allowed to come back. But they have to show their qualified individuals with a disability. The class has currently formed only, has people who got workers come. The class includes a lot of people that probably don't qualify for relief. Isn't that true under the current formulation? No, the class includes people who were out and were not allowed back, so it does include other people for the most part. People who had temporary, as I understand it, was primarily people on temporary disability, or as Judge Randallis said, people that were collecting workers come. No, the UPS has a system called the Tau's program that allows people with temporary disabilities who are in workers' comp to return to work. But that program is almost another per-safe violation, because it only allows you to return to work for 30 days, which means that you have a temporary disability and you're not qualified under the ADA. Once it's more than 30 days, you can't come back under the Tau's program. They reject you. So for the most part, the class members will be people out on longer term workers' comp or disability because of an illness or injury. And they will be looking for, it's primarily unskilled jobs. They will be looking to return to jobs that they know better than anyone else because of their returning workers. They know the jobs and they will be presumed to be qualified and they will be presumed to be regarded as disabled because UPS took adverse action against them that perfectly fits the definition of regarded as disabled. And as far as the applicability of the new law, I disagree with something that Mr. Perry said. It does go into effect January 2009 and that issue was not briefed. But it seemed to me from the very quick reading I did on the Lions graph case in some of its progeny that since this case is requesting prospective relief primarily, which is what it really is all about, Judge Conti will have to apply the laws that exist at the time. And the trial will be held in all likelihood after January 1st 2009. So the new act most likely will apply. The new act removes any doubt that Congress meant what it said in 1990 when they said we want this act to be given a broad interpretation. The legislative history of the new act says this act mirrors title seven. And the exact words in the act make it far easier burden to show qualification even under prong one that it's much easier to show a disability than the courts have interpreted the law to be. And in fact, it says that we want the courts to spend more attention looking at the defendants kind of. Do you think it applies to situations that occur before the law goes into effect? I think it does because I think it first it's a clarifying statute as they point out we're not creating new rights or obligations. We're just clarifying what we meant back in 1990. So it's not imposing new burdens on people as a surprise. And second, I think the issue of retroactive application might not even come up under one of the holdings in Lange's graph that says when prospective relief is an issue which it is here, you must apply the laws that exist at the time. You don't even get into looking at retroactivity. So you don't have to even do that difficult analysis. But the act says the new act has been said and it's thinking about individual cases here I believe not class actions necessarily. We want you judges to spend more time focusing on the defendants conduct rather than the extent of the plaintiffs' disability which fits perfectly and eases the burden of everybody on the second stage because most of our plaintiffs, class members will be class one, prong one, actual disabled under the act. Now as far as regarded as under the amendments there'll be no regarded as no the amendments left the three categories unchanged completely. There's still the three categories and they still use the same words for them record of and regarded as. Now under the regarded as Mr. Perry is correct. They did say an employer has no obligation to accommodate a person who is solely and that's a huge word solely entitled to protection under this act as regarded as person. Now in the legislative history they explain that and they say as Mr. Perry said it's a compromise. But the reason we are willing to make this compromise even though this act is so important and should be so broadly interpreted we're willing to make this compromise because we think there'll be very few people in that category if they were discriminated against by their employer as every one of our class members were they will likely be found to be actually disabled under prong one because we've eased the burden so greatly. So it's only for those people as a practical matter when we go to the second stage here I think what will probably happen is those people who asked to return to work could not provide a hundred percent release but didn't need an accommodation but UPS said no no a hundred percent release we don't want you not a hundred percent they didn't even need an accommodation they would be regarded as employees and they wouldn't be asking for or needing an accommodation. What about the ones who might need an accommodation how would that be? I think there's also very false in records on what the accommodation is it's usually very minor things such as a step ladder power steering truck that UPS has not buying a new one but just the use of one that already has in its facility things that would be pretty ascertainable from the record these are workers that the difference between this class and some of the wide ranging classes in Title VII that have been approved this is really a very very narrow class it's big just by the magnitude of the defendants wrongdoing and by the number it's size the number of employees. The class doesn't even include in its definition that the people have to be qualified individuals with the disability the class includes people who have been out of work or filed for workers come which which means people who do not qualify for any relief under the ADA are included in this class how how can that be? Well that's not quite right your honor what what district the district judge conceded is she rewrote the class somewhat she modified the plaintiffs version which is this court knows is proper under Chang versus Venomine the court did it themselves and she took out any reference to the law because she knows of the circular reasoning of the ADA are you qualified and disabled well it gets into a circle so she made it very fact specific in the class includes those persons who have been out of work from UPS and have been unable to return because of one of these three reasons but they might may not be entitled to relief under the ADA they may not be qualified individuals with a disability which is your ticket to get into the ADA so the class is over inclusive and it includes people who really aren't entitled to relief doesn't it? No it doesn't anymore than a title seven case that would say all women like for example in dukes all women who have been denied promotions who have been denied training who have had their pay held back is our class that includes women who didn't deserve the promotion who were on qualify for the promotion it includes women who didn't want the training or couldn't do the training but they are women and the our plaintiffs are have a record of or is regarded as disabled every not the class that's not what the class definition is that class does not have any reference to qualified individuals with a disability disability includes regarded as so doesn't that definition have to include disabled persons as defined under the law which would include regarded as it has to encompass them factually which is exactly what this does if you're if you're out because of illness or injury and you can't come back because of a policy that doesn't let you even make a case for a reasonable accommodation that's a definition of it's regarded as you are being regarded as disabled by your employer in most instances these people because of UPS's false record keeping also have a record of disability which would be and that record will probably tremendously ease the the second stage of this trial if I could just quickly sum up if this case is not affirmed it would mean as a practical matter that you can have any ADA practice and policies class action in direct contravention to what Congress said in 1990 when they imported the statute and in complete contravention to what they said in 2008 it's a temporary 2008 when they said we met it when we said it we want the remedies to mirror the remedies of Title 7 and with this district court judge who was so careful to avoid reversal by an every turn doing going with the UPS that's not to be afraid of us you know how to quite that way was she she found the facts scrupulously she gave attention to the defendants facts she gave white to the plans facts and the reason that she did this is because facts are overwhelming intentional blatant discrimination of a kind that is very similar to no Irish need apply that's what our case is it's if you're not 100 percent don't come back and it's really an arrow class of just former workers who know their job well who want to come back and the ADA says they should and the problem of figuring out the second stage of the the hearing is to burn some cumbersome not cohesive and not manageable that's for the district court to decide she she has a discretion to decide that it's not before you this is an interdoctory briefing the full record is not before you it belongs with the district court where she left that's that's one other problem is that she left some items to be decided later on and the amendments to the civil rules in 2003 make pretty clear that district court is not supposed to do that supposed to make findings make determinations it prior prior to surgery it did your honor but if I may in the walk tell decision which very carefully said you have to define the class and the claims and the issues and the defenses it looked at the class and said this was well done the rest of it wasn't done at all but the class was well done and if you look at the class your honor it's attentive class the the district court said we're going to keep in all the HMO plans at this time we might change that as a case procedure which is really quite similar to what judge County said we're going to keep and junk to really at this time but I may change my mind thank you any other questions good the Skolnik thank you very much thank you sir thank you your honors judge and Dale this case is called hohider versus ups mark hohider is not disabled mark hohider is not qualified and ups did not fail to accommodate mark hohider an arbitrator after an evidentiary hearing made all of those findings it's in the record j-a-a-8 27 judge county made some factual findings she skipped a lot more factual findings she made no factual finding that the named plaintiff in a class action lawsuit is qualified to claim the entitlement of the statute she made no finding that the name plaintiff in a class action lawsuit was discriminated against by ups she made no finding that the 100% policy even exists she made no finding that anything these plaintiffs are complaining about adversely affected the name plaintiff in the lawsuit Mr. Chief Judge that leads to this team search question there are three ways to think about the team search question everybody agrees the Skolnik just agreed that disability qualification and failure to accommodate are elements of the plaintiffs cause of action option number one is that every class member must bear the burden of proving those things before liability judgment can be entered against ups that's ups's position based on the text of the statute option number two is that some significant number of class members must make those determinations before liability judgment can be entered that's teamsters if you actually look at teamsters in teamsters the government plaintiff proved actual specific instances intentional discrimination against 40 Hispanic surname truck drivers before any inference arose of discrimination against the 41st which leads us to number three option three which is that nobody no plaintiff any class member has to prove disability qualification or accommodation before some judgment of liability liability for what is a good question gets entered against ups that's judge counties position that's these plaintiffs decision that's not teamsters that has no basis in the law it has no basis in title seven option two teamsters true teamsters we don't think it's consistent with the ADA for reasons on our brief but at minimum the named plaintiffs have to prove qualifications that's the holding of the on bank nine circuit and bates I mean this court couldn't defer this certification without creating a square conflict with the on bank nine circuit on that precise question in an ADA class action involving this same company and you know we know that case pretty well too the plaintiffs seem to say seem to argue that the regarded as the way of looking at cleans up a lot of problems your honor they have a view of regarded as that is fundamentally flatly irreconcilable with the opinion that justice so Connor authored for the Supreme Court and Sutton which explained what regarded as means regarded as under the ADA is an individualized determination the employer must either regard an actual impairment as substantially limiting when it's not or regard a non-existent impairment as substantially limiting both of those are individualized as terminations there is no such thing as regarded as in gross there's no case that says that there's no theory that supports it it's not in the statute it's not in the amendments and nothing changes that that is Supreme Court precedent that their theory runs smack into they can't explain it they have no answer to that this notion that regarded as floats around anybody you don't let back to work as regarded as disabled is nonsense there's no case that says that and if it were then this class could be picked up and dropped lock stop and barrel to every at least manual service company that has people to go out on workers come isn't there reference in the bates and bank opinion to the effect that a 100% cure policy is discrimination per se the ninth circuit has a previous opinion called McGregor that held that in for a different company we we don't think that's right I don't personally don't think there's anything such thing as discrimination per se in the ADA but look at the 100% in this policy the most they can show is that if you have a hundred percent that is a full work release from your doctor you can go back to your previous position if you don't have that you have to go through the ADA compliance manual that's entirely process that's entirely consistent with the EOC's guidance that's not discrimination because remember the ADA is a self selection statute the employer is not even allowed to ask about impairments and medical conditions and mental conditions and so forth unless the employee self identifies as requiring an accommodation 100% has nothing to do with that our we have UPS has a formalized policy that lets people go into that which leads to the trial plan at some point in this litigation everybody 100% 10 step plan temporary alternate work anything has to prove that they are disabled qualified and not accommodated at some point in this litigation the plaintiffs bear that burden to prove judge Conti simply punted that question she said they're going to have some amorphous liability determination and then decide all that stuff later that's not acceptable after 2003 that's not acceptable under walk tell it is it is simply putting the hammer of a class action against this company without any showing that the actual case could be tried tried in a way that's good for the judicial system and tried in a way that protects the due process rights of the absent class members miss Kohlnick spoke for 20 minutes I didn't hear or talk about those absent class members it's a little odd for the company to be doing that but I think it's a very important thing is a mandatory no opt out class action that they proceed to try here we can win this case if they want to try this class action we can win it and we will try it UPS is not going to settle this case we tried baits for 10 years and baits is still going this judge is going to have to try this case she has shown no way that she can actually try it to the end to a verdict or something gets entered and is appealable as a final judgment to this court but I think that's something that this court could take into account miss Kohlnick Mr. Sheffead you asked her that question and she said well that's not before the court we'll have to work it out later the whole purpose of 23F appeals is to make sure that a class action is possible before it starts so that we don't run into the due process problems five years down the road so that we don't run back to this court on a mandamus petition or at 1292 B or something else because this is a case that can't be tried the amendments acts finally or honor if the court would like supplemental briefing I guess we'd be happy to do that I disagree on retroactivity and so forth but well we will discuss that and if we wish further briefing we will let the parties know any other questions very thank you very much thank you case was extremely well-briefed and extremely well argued we will take this matter under advisement I would like to have a transcript of the oral argument that's the parties to share and the cost of the transcript and check with the clerk's office and we'll tell you how to do that thank you both very muc