Case Document

BNSF Railway v. EEOC Opposition to Certiorari

Date

Thursday, August 8, 2019

Document Type

Briefs - Miscellaneous

Attachments

BNSF Railway Co. v. EEOC Opposition to Certiorari

No. 18-1139

In the Supreme Court of the United States

BNSF RAILWAY COMPANY, PETITIONER

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT

NOEL J. FRANCISCO
Solicitor General

Counsel of Record

ERIC S. DREIBAND
Assistant Attorney General

THOMAS E. CHANDLER

Attorney

Department of Justice

Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals erred in concluding that petitioner perceived a job applicant as
having a physical impairment within the meaning of the Ameri- cans with Disabilities Act of 1990
(ADA), 42 U.S.C. 12101 et seq.

2. Whether the court of appeals erred in concluding that petitioner violated the ADA by
conditioning the ap- plicant’s job offer on his procuring an additional medical examination at his
own expense.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (W.D. Wash.):
EEOC v. BNSF Ry. Co., No. 2:14-cv-1488-MJP (Mar.
14, 2016)

United States Court of Appeals (9th Cir.):
EEOC v. BNSF Ry. Co., No. 16-35457 (Sept. 12, 2018)

(II)

TABLE OF CONTENTS
Page

Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 2
Discussion .................................................................................... 11
Conclusion ................................................................................... 30

TABLE OF AUTHORITIES

Cases:

Bond v. United States, 572 U.S. 844 (2014) ........................ 14
Braxton v. United States, 500 U.S. 344 (1991) ................... 29
Breland v. United States, 565 U.S. 1153 (2012) ................. 27
Cody v. CIGNA Healthcare of St. Louis, Inc.,
139 F.3d 595 (8th Cir. 1998) ............................................... 19
France v. United States, 136 S. Ct. 583 (2015) ................... 27
Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696
(4th Cir. 2001)...................................................................... 18
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) .............. 21
International Bhd. of Teamsters v. United States,
431 U.S. 324 (1977).............................................................. 21
Lanman v. Johnson Cnty., 393 F.3d 1151
(10th Cir. 2004).................................................................... 19
Lawrence v. Chater, 516 U.S. 163 (1996)............................. 26
O’Neal v. City of New Albany, 293 F.3d 998
(7th Cir. 2002)................................................................ 27, 28
Porter v. United States Alumoweld Co.,
125 F.3d 243 (4th Cir. 1997) ............................................... 27
Raytheon Co. v. Hernandez, 540 U.S. 44
(2003) .................................................................. 20, 21, 25, 26
Sanchez v. Henderson, 188 F.3d 740
(7th Cir. 1999), cert. denied, 528 U.S. 1173 (2000)........... 19

(III)

Cases—Continued: Page

School Bd. of Nassau Cnty. v. Arline, 480 U.S. 273
(1987) .............................................................................. 15, 16
Sullivan v. River Valley Sch. Dist., 197 F.3d 804
(6th Cir. 1999), cert. denied, 530 U.S. 1262 (2000)........... 18
Tax-Garcia v. United States, 572 U.S. 1112 (2014) ........... 27
Texas Dep’t of Hous. & Cmty. Affairs v.
Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507 (2015)....... 25
Tice v. Centre Area Transp. Auth., 247 F.3d 506
(3d Cir. 2001) ....................................................................... 18
Wisbey v. City of Lincoln, 612 F.3d 667
(8th Cir. 2010)...................................................................... 18
Wright v. Illinois Dep’t of Corr., 204 F.3d 727
(7th Cir. 2000)...................................................................... 18

Statutes, regulations, and rule:

ADA Amendments Act of 2008,
Pub. L. No. 110-325, 122 Stat. 3553:
§ 2(b)(3), 122 Stat. 3554................................................... 16
§ 4(a), 122 Stat. 3555 ....................................................... 15

Americans with Disabilities Act of 1990,
Pub. L. No. 101-336, 104 Stat. 327
(42 U.S.C. 12101 et seq.):
42 U.S.C. 12102(1) ............................................................. 2
42 U.S.C. 12102(1)(C)...................................................... 12
42 U.S.C. 12102(2) (2006)................................................ 15
42 U.S.C. 12102(2)(A) (2006) .......................................... 19
42 U.S.C. 12102(3) ......................................................... 3, 9
42 U.S.C. 12102(3)(A)............................................ 9, 12, 25
42 U.S.C. 12102(3)(B)................................................ 15, 17
Tit. I, 104 Stat. 330 ........................................................ 2, 4
42 U.S.C. 12111(2) ....................................................... 2

Statutes, regulations, and rule—Continued: Page

42 U.S.C. 12111(8) ....................................................... 2
42 U.S.C. 12112(a) (§ 102(a), 104 Stat. 331) ... passim
42 U.S.C. 12112(b) ....................................................... 3
42 U.S.C. 12112(b)(6)................................... 3, 8, 25, 26
42 U.S.C. 12112(d)(1)....................................... 4, 20, 23
42 U.S.C. 12112(d)(2)(A) ............................................. 4
42 U.S.C. 12112(d)(3)............................4, 11, 21, 23, 24
42 U.S.C. 12112(d)(3)(A) ........................... 4, 20, 21, 24
42 U.S.C. 12112(d)(3)(C) ............................................. 4
42 U.S.C. 12116 ............................................................ 3
42 U.S.C. 12117(a) ....................................................... 7
42 U.S.C. 12205a ................................................................ 3
5 C.F.R. Pt. 339, Subpt. C:
Section 339.301(a)............................................................ 28
Section 339.304(a)............................................................ 29
Section 339.304(b)............................................................ 29
29 C.F.R. Pt. 1630:
Section 1630.2(h)(1) ......................................... 3, 13, 14, 18
Section 1630.15(f) ............................................................ 17
App.................................................................. 13, 15, 16, 26
Sup. Ct. R. 10 ......................................................................... 29

Miscellaneous:

EEOC:
ADA Enforcement Guidance: Preemployment
Disability-Related Questions and Medical Examinations (Oct. 10, 1995), http://www.eeoc.
gov/policy/docs/preemp.html (last visited Aug. 8, 2019) .......................................... 4, 21

Miscellaneous—Continued: Page

Technical Assistance Manual on the Employ- ment Provisions (Title I) of the Americans with
Disabilities Act (Jan. 1992), https:// askjan.org/publications/ada-specific/Technical-
Assistance-Manual-for-Title-I-of-the-ADA.cfm (last visited Aug. 8, 2019)............................... 4
H.R. Rep. No. 485, 101st Cong., 2d Sess., Pt. 3 (1990) .......................................................... 14, 25
H.R. Rep. No. 730, 110th Cong., 2d Sess. (2008):
Pt. 1 ................................................................................... 16
Pt. 2 ................................................................................... 15

In the Supreme Court of the United States

No. 18-1139

BNSF RAILWAY COMPANY, PETITIONER

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-29a) is reported at 902 F.3d 916. The order of
the district court granting summary judgment (Pet. App. 30a-53a) is not published in the Federal
Supplement but is avail- able at 2016 WL 98510. The order of the district court granting injunctive
relief (Pet. App. 54a-59a) is unre- ported.

JURISDICTION

The judgment of the court of appeals was entered on September 12, 2018. A petition for rehearing
was de- nied on November 30, 2018 (Pet. App. 60a). The petition for a writ of certiorari was filed
on February 27, 2019. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. Title I of the Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336, 104 Stat.
330, prohib- its discrimination on the basis of disability in employ- ment. Its “general rule”
against such discrimination,§ 102(a), 104 Stat. 331 (capitalization omitted), is codi- fied at 42 U.S.C.
12112(a), which provides: “No covered entity shall discriminate against a qualified individual on the
basis of disability in regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.”

The ADA defines each of the key terms in that gen-eral prohibition against discrimination. It defines
“cov- ered entity” to mean, among other things,“an em- ployer.” 42 U.S.C. 12111(2). It identifies a
“qualified individual” as “an individual who, with or without rea- sonable accommodation, can perform
the essential func- tions of the employmentposition that such individual holds or desires.” 42 U.S.C. 12111(8).
And it provides that “[t]he term ‘disability’ means, with respect to an individual—(A) a physical or mental impairment
that substantially limits one or more major life activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)).” 42 U.S.C.
12102(1). Par- agraph (3), in turn, provides:

(A) An individual meets the requirement of “be- ing regarded as having such an impairment” if the
individual establishes that he or she has been sub- jected to an action prohibited under this
chapter be- cause of an actual or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity.

(B) Paragraph (1)(C) shall not apply to impair- ments that are transitory and minor. A transitory
impairment is an impairment with an actual or ex- pected duration of 6 months or less.
42 U.S.C. 12102(3).

Congress has granted the Equal Employment Op- portunity Commission (EEOC) the authority to issue
regulations implementing the ADA’s definition of “dis- ability.” 42 U.S.C. 12205a; see 42 U.S.C.
12116. Pursu- ant to that authority, the EEOC has issued a regulation defining “[p]hysical or
mental impairment,” in relevant part, as “[a]ny physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more body systems, such as neurological,
musculo- skeletal, special sense organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and
endocrine.” 29 C.F.R. 1630.2(h)(1) (emphasis omitted).

In addition to setting forth a general prohibition against discrimination in Section 12112(a), the
ADA identifies various actions that fall within that prohibi- tion. 42 U.S.C. 12112(b). Those
actions include:

using qualification standards, employment tests or other selection criteria that screen out or tend
to screen out an individual with a disability or a class of individuals with disabilities unless
the standard, test or other selection criteria, as used by the covered en- tity, is shown to be
job-related for the position in question and is consistent with business necessity.

42 U.S.C. 12112(b)(6).

The ADA also provides that the general prohibition against discrimination in Section 12112(a)
encompasses

“medical examinations and inquiries.” 42 U.S.C. 12112(d)(1). Section 12112(d)(3) specifically
addresses “[e]mployment entrance examination[s].” 42 U.S.C. 12112(d)(3) (emphasis omitted); see 42
U.S.C. 12112(d)(2)(A) (prohibiting preemployment examina- tions or inquiries “as to whether [a job]
applicant is an individual with a disability or as to the nature or sever- ity of such disability,”
except as provided in Section 12112(d)(3)). It provides that “[a] covered entity may require a
medical examination after an offer of employ- ment has been made to a job applicant and prior to
the commencement of the employment duties of such appli- cant, and may condition an offer of
employment on the results of such examination, if,” among other things, “all entering employees are
subjected to such an examina- tion regardless of disability,” 42 U.S.C. 12112(d)(3)(A), and “the
results of such examination are used only in accordance with [Title I of the ADA],” 42 U.S.C.
12112(d)(3)(C).

The EEOC has published guidance explaining that, consistent with those provisions, an employer that
“has obtained basic medical information from all individuals who have been given conditional offers
in a job cate- gory” may “ask specific individuals for more medical in- formation,” “if the
follow-up examinations or questions are medically related to the previously obtained medical
information.” EEOC, ADA Enforcement Guidance: Pre- employment Disability-Related Questions and
Medical Examinations (Oct. 10, 1995), http://www.eeoc.gov/
policy/docs/preemp.html (last modified May 9, 2019) (ADA Enforcement Guidance); see EEOC, A
Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with
Disabilities Act (Jan. 1992), https://askjan.org/publications/ada-specific/

Technical-Assistance-Manual-for-Title-I-of-the-ADA.cfm (“[T]he ADA does not require that the scope
of medical examinations must be identical. An employer may give follow-up tests or examinations
where an examination indicates that further information is needed.”).

2. Petitioner “operates one of the nation’s largest rail networks.” C.A. E.R. 504. In 2011,
petitioner posted openings for the position of senior patrol officer in Seattle, Washington. Ibid.
The responsibilities of the position include patrolling company property, re- sponding to safety
concerns, conducting investigations, identifying trespassers, and arresting suspects. Id. at
505. Russell Holt applied and interviewed for the job, id. at 446, 458, and petitioner extended him
an offer of employment conditioned on the outcome of a back- ground investigation and a medical
evaluation, id. at 460-461, 506.

Comprehensive Health Services (CHS), a private medical contractor, conducted Holt’s preemployment
medical evaluation on petitioner’s behalf. Pet. App. 6a. As the first step of that evaluation, CHS
asked Holt to fill out a medical questionnaire. C.A. E.R. 615-622; see id. at 527, 932. The
questionnaire asked whether Holt had “ever had a back injury.” Id. at 618. Holt answered “[y]es,”
explaining that he had suffered a “[b]ulging disk in 2007.” Ibid. The questionnaire also asked
whether Holt had “ever had any of the following muscu- loskeletal problems”—among them, “[b]ack
pain.” Id. at 619. Holt again answered “[y]es,” stating that he had experienced “[b]ack pain”
“[d]ue to the bulging disk in 2007.” Ibid.

After reviewing Holt’s responses, a nurse from CHS asked Holt to provide medical records relating
to his

back. C.A. E.R. 383, 544, 644; see id. at 528. Holt pro- vided an MRI from 2007, along with notes
from his primary-care physician and his chiropractor. Id. at 627- 632; see id. at 554, 644; Pet.
App. 7a. CHS also directed Holt to obtain a physical examination—including an oc- cupational health
assessment of his back, C.A. E.R. 547—from Dr. Marcia Hixson, a physician employed by CHS’s
subcontractor. Id. at 644, 647-653, 660-661; see Pet. App. 7a. Although Dr. Hixson was not provided
Holt’s 2007 MRI or other medical records, C.A. E.R. 1047, she was aware that Holt had reported
suffering a bulging disc, id. at 660. During her occupational health assessment of his back, Dr.
Hixson found “no apparent functional limitations.” Ibid. (capitalization omitted).

CHS then referred Holt’s medical file to petitioner’s medical department for additional review,
citing Holt’s history of a “[d]isc extrusion” in his “[b]ack.” C.A. E.R. 1006; see id. at 529-530.
In reviewing the file, peti- tioner’s medical officer, Dr. Michael Jarrard, id. at 521, found
Holt’s 2007 MRI to show a “disc extrusion at two levels,” id. at 552, where “the soft, jelly-like
material” that “should be contained inside a disc” had escaped through an opening into his spinal
canal, id. at 559. Dr. Jarrard was concerned that the extruded material could become “lodge[d]
against different nerve structures,” ibid., and “leave [Holt] very seriously impaired,” id. at
562. Given that “quite abnormal MRI,” id. at 573, Dr. Jarrard concluded that he needed more
information be- fore he could declare Holt “fit to do the heavy demands of th[e] job” of senior
patrol officer, id. at 575. In par- ticular, Dr. Jarrard needed “pro[of] that [Holt] doesn’t still
have major pathology,” id. at 561—such as proof

that, in the years since the 2007 MRI, the “extruded ma- terial had * * * been resorbed by [Holt’s]
body,” id. at 574.

Dr. Jarrard therefore drafted an email that peti- tioner sent to Holt, informing him that
“[a]dditional in- formation is needed * * * due to uncertain prognosis of your back condition.”
C.A. E.R. 624, 671. Among the additional information requested was “a current MRI scan” of Holt’s
back. Ibid. The email informed Holt that, if he supplied the additional information, peti- tioner
would “evaluate [his] condition again.” Ibid.

After receiving the email, Holt asked his primary- care physician to perform a new MRI, but his
physician told him that his insurance would not cover the MRI be- cause the MRI was not medically
necessary. C.A. E.R. 1358-1359. Without insurance coverage, an MRI would have cost Holt about $2500
out of pocket. Id. at 1359. Although petitioner had paid for the cost of Holt’s med- ical
evaluation up to that point, Pet. 6, it informed Holt that “[t]he cost for the MRI * * * [wa]s
[his] responsi- bility,” C.A. E.R. 962. When Holt did not provide the MRI or the other additional
information Dr. Jarrard had requested, petitioner treated Holt as having de- clined the conditional
job offer. Id. at 645, 1483.

3. After Holt filed a charge of disability discrimina- tion with the EEOC, First Am. Compl. ¶ 7,
the EEOC brought suit against petitioner in federal district court, alleging that petitioner had
“failed to hire” Holt “be- cause of his disability,” in violation of the ADA, id. ¶ 8; see 42
U.S.C. 12117(a). The EEOC sought monetary and injunctive relief. First Am. Compl. 6.

The district court denied petitioner’s motion to dis- miss. D. Ct. Doc. 28 (Jan. 29, 2015). The
court acknowl- edged that “medically-related follow-up examinations

of some entering employees are permitted” under the ADA. Id. at 5. The court reasoned, however,
that peti- tioner’s “requirement that Holt procure a follow-up MRI after the post-offer,
pre-employment examination functioned as a screening criterion that screened out an applicant with
a disability by imposing an expensive ad- ditional requirement not imposed on other applicants.”
Ibid. The court further reasoned that, according to the EEOC, “the MRI requirement was not
job-related and consistent with business necessity.” Ibid. The court therefore concluded that the
EEOC had stated a plau- sible claim under Section 12112(b)(6). Id. at 3, 6.

Following discovery, the district court granted the EEOC’s motion for summary judgment on
liability. Pet. App. 30a-53a. The court explained that, although it had relied on Section
12112(b)(6) in denying peti- tioner’s motion to dismiss, id. at 41a, it had come to con- clude that
the EEOC could not bring a disparate- treatment claim under Section 12112(b)(6) because only
disparate-impact claims could be brought under that provision, id. at 41a-43a. The court also
concluded that the EEOC had “not demonstrated that actual ‘qualifica- tion standards, employment
tests or other selection cri- teria’ were employed by [petitioner] to disqualify Mr. Holt.” Id. at
43a. The court reasoned, however, that “‘dis- crimination’ under § 12112(a) is not limited to the
cate- gories listed in § 12112(b).” Ibid. It then explained that to establish disparate treatment
under Section 12112(a), “the EEOC must show (1) that Mr. Holt is disabled within the meaning of the
ADA; (2) that he is a qualified individual with a disability; and (3) that he was discrim- inated
against because of his disability.” Id. at 46a.

The district court determined that the EEOC was entitled to summary judgment on liability because
the

EEOC had “provided sufficient undisputed evidence” on each of those elements. Pet. App. 52a.
Addressing the third element first, the court reasoned that peti- tioner’s “withdrawal of Mr.
Holt’s job offer when he failed to supply an updated MRI at his own cost consti- tuted facial
‘discrimination.’” Id. at 47a. The court then determined that petitioner had engaged in discrimina-
tion “because of Mr. Holt’s ‘disability.’” Id. at 48a. The court explained that Holt met “the
requirement of ‘be- ing regarded as having [a physical] impairment,’” ibid. (quoting 42 U.S.C.
12102(3)), because he “admitted to [petitioner] that he had a back injury and provided an MRI
showing a two-level disc extrusion, and [peti- tioner] halted the hiring process in response to
that in- formation,” ibid. Finally, the court noted that peti- tioner had made “no attempt to argue
that Mr. Holt was not otherwise a ‘qualified individual.’” Id. at 49a.

Following the district court’s decision, the parties stipulated to compensatory damages in the
amount of $62,500. D. Ct. Doc. 147, at 2 (Jan. 25, 2016). The court also awarded $32,833.37 in back pay, D.
Ct. Doc. 154, at 2 (Jan. 29, 2016), and issued a nationwide permanent injunc- tion requiring
petitioner to “bear the cost of procuring any additional information it deems necessary to complete
a medical qualification evaluation,” Pet. App. 57a.

4. The court of appeals affirmed the judgment of the district court as to liability, but vacated
the nationwide permanent injunction and remanded for further pro- ceedings on the proper scope of
injunctive relief. Pet. App. 1a-29a.

The court of appeals first concluded that petitioner had perceived Holt as having an impairment
within the meaning of Section 12102(3)(A). Pet. App. 13a-14a, 16a-

17a. The court found that, “[i]n requesting an MRI be- cause of Holt’s prior back issues and
conditioning his job offer on the completion of the MRI at his own cost, [petitioner] assumed that
Holt had a ‘back condition’ that disqualified him from the job unless Holt could dis- prove that
proposition.” Id. at 17a. The court also found that, “in rejecting Holt’s application because it
lacked a recent MRI, [petitioner] treated him as it would an ap- plicant whose medical exam had
turned up a back im- pairment or disability.” Ibid. Based on those facts, the court determined that
petitioner “chose to perceive Holt as having an impairment at the time it asked for the MRI and at
the time it revoked his job offer.” Ibid.

The court of appeals then concluded that petitioner had discriminated against Holt because of his
disability. Pet. App. 17a-24a. The court noted that the EEOC had “frame[d] the discriminatory act”
as the “rescission of [Holt’s] job offer.” Id. at 18a (brackets in original). The court, however, viewed
the “key question” as instead “whether [petitioner] was entitled to condition Holt’s continuation through
the hiring process on Holt provid- ing an MRI at his own cost.” Ibid. The court explained that, “[i]f [petitioner]
was entitled to do this, then dis- qualifying Holt because he failed to cooperate in the completion of
the medical screening process, whatever the reason he could not complete the process, was likely
permissible.” Ibid.

Having framed the “dispute” as one over “cost allo- cation,” Pet. App. 20a, the court of appeals
determined that Section 12112(a) prohibits an employer from “re- quest[ing] an MRI at the
applicant’s cost only from per- sons with a perceived or actual impairment or disabil- ity,” id. at
21a. The court acknowledged that, under the EEOC’s guidance, “follow-up exams are permissible so

long as they are ‘medically related to previously ob- tained medical information.’” Id. at 19a. The
court also stated that “follow-up exams will frequently be required of people with disabilities or
impairments because they have disabilities or impairments.” Id. at 20a. But the court viewed that
“additional burden” as “implicitly au- thorized by 12112(d)(3)’s authorization of medical ex- ams.”
Ibid. By contrast, the court reasoned, Section 12112(d)(3) “does not * * * authorize an employer to
further burden a prospective employee with the cost of the testing, however necessary the testing
may be.” Ibid. The court therefore concluded that Section 12112(a) “and the ADA’s policy purposes
should control on the issue of who must bear the costs of testing.” Id. at 20a-21a. And the court
determined that petitioner had violated Section 12112(a) by “impermissibly condi- tion[ing] Holt’s
job offer on Holt procuring an MRI at his own expense.” Id. at 25a.

Finally, the court of appeals determined that, although an injunction was appropriate, the district
court had failed to “make adequate factual findings to support the scope of the injunction” it had
issued. Pet. App. 28a. The court of appeals therefore vacated the injunction and remanded for
further factual findings. Id. at 29a.

DISCUSSION

Petitioner contends (Pet. 9-20) that it did not per- ceive Holt as having a physical impairment
within the meaning of the ADA. The court of appeals correctly re- jected that contention, and its
decision does not conflict with any decision of this Court or of another court of appeals.
Petitioner also contends (Pet. 23-26) that the court of appeals erred in concluding that petitioner
dis-

criminated against Holt on the basis of disability by re- quiring him to obtain a follow-up MRI at
his own ex- pense. The EEOC argued below that it was entitled to summary judgment on the issue of
discrimination. Upon further consideration, the United States agrees with petitioner that summary
judgment in favor of the EEOC was inappropriate. Because the government now takes the position that
the judgment reached by the court of appeals was incorrect, this Court should grant the petition
for a writ of certiorari, vacate the judgment below, and remand the case for further consideration
in light of the position asserted in this brief.

1. Petitioner contends (Pet. 9-20) that the court of appeals erred in concluding that petitioner
perceived Holt as having a physical impairment within the mean- ing of the ADA. That contention
does not warrant this Court’s review.

a. The court of appeals correctly concluded that pe- titioner perceived Holt as having a physical
impairment within the meaning of the ADA. Pet. App. 13a-17a.

i. Under the ADA, an individual with a “disability” is defined to include an individual who is
“regarded as having [a physical or mental] impairment.” 42 U.S.C. 12102(1)(C). An individual meets
that definition “if the individual establishes that he or she has been subjected to an action
prohibited under this chapter because of an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C.
12102(3)(A).

The EEOC’s implementing regulation defines “[p]hysical * * * impairment” to include “[a]ny physio-
logical disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more
body systems,

such as neurological, musculoskeletal, special sense or- gans, respiratory (including speech
organs), cardiovas- cular, reproductive, digestive, genitourinary, immune, circulatory, hemic,
lymphatic, skin, and endocrine.” 29 C.F.R. 1630.2(h)(1) (emphasis omitted). The EEOC’s interpretive
guidance explains that “[t]he definition of the term ‘impairment’ does not include physical charac-
teristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that
are within ‘nor- mal’ range and are not the result of a physiological dis- order.” 29 C.F.R. Pt.
1630, App. at 397. The guidance also identifies “hearing loss, osteoporosis, [and] arthri- tis” as
examples of “impairments.” Id. at 398.

A disc extrusion meets Section 1630.2(h)(1)’s defini- tion of a physical impairment. A disc
extrusion occurs when “[t]he disc material has ripped open,” and “the soft, jelly-like material
inside[] has been squeezed out
* * * into the spinal canal.” C.A. E.R. 559. That pro- cess is irreversible: once the jelly-like
material escapes through a crack in the disc, it cannot be regenerated or put back inside. Id. at
900. A disc extrusion is thus a negative abnormality in the spine. Id. at 1251. Much like
“osteoporosis” or “arthritis,” 29 C.F.R. Pt. 1630, App. at 398, it therefore qualifies as a
“physiological dis- order or condition * * * affecting” the “musculoskele- tal” system, 29 C.F.R.
1630.2(h)(1).

A 2007 MRI of Holt’s back showed that he had a disc extrusion at two levels. C.A. E.R. 629.
Petitioner un- derstood that Holt had suffered a disc extrusion, id. at 552, and expressly referred
to his “back condition” in asking that he provide a current MRI, id. at 671. Be- cause a disc
extrusion is a physical impairment, and be- cause petitioner understood Holt to have suffered one,

petitioner perceived Holt as having a physical impair- ment under Section 1630.2(h)(1).

ii. Petitioner does not dispute that Section 1630.2(h)(1) supplies a valid definition of the term
“physical impairment.” Petitioner argued below, how- ever, that a disc extrusion does not
necessarily meet that definition. Pet. C.A. Reply Br. 5-7. That is be- cause, petitioner contended,
a disc extrusion could be a “non-issue” if, for example, the extruded material avoided impinging on
a nerve. Id. at 5. And if that were the case, petitioner argued, the disc extrusion would not
qualify as a condition “affecting [a] body system[],” id. at 7 (brackets in original), because the
person would still have a “normally functioning spine,” id. at 6.

Petitioner’s reliance on the “affecting” clause of Sec- tion 1630.2(h)(1) is misplaced. To be sure,
a condition must “affect[] one or more body systems” adversely to be an “impairment.” 29 C.F.R.
1630.2(h)(1) (emphasis omitted); see Bond v. United States, 572 U.S. 844, 861 (2014) (considering
the “ordinary meaning of a defined term” in applying the definition). Petitioner’s reading of the
“affecting” clause, however, would require not just that the effect be adverse, but that it be so
severe as to limit a person’s “functioning.” Pet. C.A. Reply Br. 6.

The text of Section 1630.2(h)(1) forecloses peti- tioner’s reading. The “affecting” clause applies
not just to “[a]ny physiological disorder or condition,” but also to any “cosmetic disfigurement.”
29 C.F.R. 1630.2(h)(1). If the clause required showing that a “cosmetic disfig- urement” affected a
person’s functioning, scars from skin grafts or from severe burns, as well as other merely “cosmetic”
disfigurements, would never qualify as impairments—a result contrary to the regulation (which
petitioner does not challenge). Cf. H.R. Rep. No.

485, 101st Cong., 2d Sess., Pt. 3, at 30 (1990) (1990
House Report) (explaining that “severe burn victims of- ten face discrimination” “because of the
attitudes of oth- ers towards the impairment”); see also 29 C.F.R. Pt. 1630, App. at 411 (“To
illustrate how straightforward application of the ‘regarded as’ prong is, if an employer refused to
hire an applicant because of skin graft scars, the employer has regarded the applicant as an
individ- ual with a disability.”).

The text and history of the ADA confirm that the def- inition of “impairment” does not incorporate
peti- tioner’s functional test. Before Congress amended the ADA in 2008, the “regarded as” prong of
the statute’s definition of “disability” applied only to individuals re- garded as having an
“impairment that substantially lim- its one or more * * * major life activities.” 42 U.S.C.
12102(2) (2006). In 2008, Congress amended the “re- garded as” prong to eliminate any requirement
that “the impairment limit[] or [be] perceived to limit a ma- jor life activity.” ADA Amendments
Act of 2008 (ADAAA), Pub. L. No. 110-325, § 4(a), 122 Stat. 3555. As amended, the “regarded as” prong
requires only that the impairment not be “transitory and minor.” 42 U.S.C. 12102(3)(B). Given that requirement—
which Congress intended to exclude “claims at the lowest end of the spectrum of severity,” H.R. Rep. No. 730,
110th Cong., 2d Sess., Pt. 2, at 18 (2008) (2008 House Report)—it would make little sense to read a distinct
functional re- quirement into the term “impairment” itself.

Moreover, when Congress amended the ADA in 2008, it did so for the express purpose of
“reinstat[ing] the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480
U.S. 273 (1987)[,] which set forth a broad view of the third prong of the definition

of handicap under the Rehabilitation Act of 1973,” ADAAA, § 2(b)(3), 122 Stat. 3554 (italicization
added)— a prong parallel to the “regarded as” prong of the ADA’s definition of “disability.” In
Arline, the Court reasoned that a “‘visible physical impairment’” “might not diminish a person’s
physical or mental capabilities, but could nevertheless substantially limit that person’s ability
to work as a result of the negative reactions of others to the impairment.” 480 U.S. at 282-283
(citation omitted). That reasoning, which the 2008 amendments reinstated, makes clear that a
condition need “not di- minish a person’s physical or mental capabilities” to qualify as an
“impairment” in the first place. Id. at 283; see 2008 House Report Pt. 1, at 13-14 (“[T]here is no
functional limitation requirement under the ‘regarded as’ prong of the definition.”).

The statutory and regulatory text, as well as the his- tory of the 2008 amendments, thus indicate
that, “to qualify for coverage under the ‘regarded as’ prong, an individual is not subject to any
functional test.” 29 C.F.R. Pt. 1630, App. at 411. The extent to which petitioner was uncertain
about whether Holt’s back was “function- ing” “normally” in 2011, Pet. C.A. Reply Br. 6—or would
instead “prevent him from safely performing the duties of a Senior Patrol Officer,” Pet.
19—therefore is irrelevant under the “regarded as” prong. Petitioner understood that Holt had
suffered a disc extrusion, and that is enough to establish that petitioner perceived him as having
a physical impairment, no matter what peti- tioner “belie[ved] concerning the severity of the
impair- ment.” 29 C.F.R. Pt. 1630, App. at 411.*

__________

* Although petitioner perceived Holt as having a physical impair- ment, Holt would not be covered
by the “regarded as” prong of the

iii. Petitioner reads (Pet. 9) the court of appeals’ de- cision as resting on a different
rationale: that “when an employer requires an individualized medical examina- tion as a condition
of employment, that requirement in itself establishes that the employer regards the appli- cant or
employee as impaired within the meaning of the ADA.” Petitioner’s reading of the court’s decision
is mistaken. The court’s decision rested not on the fact that petitioner “request[ed] an MRI
because of Holt’s prior back issues and condition[ed] his job offer on the completion of the MRI at
his own cost,” but rather on the fact that, in doing so, petitioner “assumed that Holt had a ‘back
condition’ that disqualified him from the job unless Holt could disprove that proposition.” Pet.
App. 17a. In concluding that petitioner “chose to perceive Holt as having an impairment,” the court
thus quoted— and relied on—the email that petitioner sent Holt, in which petitioner expressly
referred to Holt as having a “back condition.” Ibid.; see id. at 8a (quoting the same email). Given
the court’s reliance on the particular facts of this case, petitioner errs (Pet. 2) in
characterizing the court’s decision as establishing a “per se” rule about when an “employer
‘regards’ [a] prospective employee as disabled within the meaning of the ADA.”

To be sure, the court of appeals “decline[d] to parse the nature of Holt’s medical condition,”
deeming “irrel- evant” whether “Holt’s disc extrusion was a permanent condition.” Pet. App. 17a.
In context, however, that

ADA’s definition of “disability” if, as an objective matter, the im- pairment were “transitory and
minor.” 42 U.S.C. 12102(3)(B); see 29 C.F.R. 1630.15(f) (“Whether the impairment at issue is or
would be ‘transitory and minor’ is to be determined objectively.”). Peti- tioner has never
attempted to show that Holt’s impairment is “tran- sitory and minor.” See 29 C.F.R. 1630.15(f)
(placing the burden on the employer to establish the defense).

passage should be understood as declining only to re- solve the “uncertainty as to the actual state
of Holt’s back” in 2011. Ibid. As explained above, the severity of his impairment at that time is
irrelevant under the def- inition of the term “impairment.” See pp. 14-16, supra. Regardless of how
Holt’s back was functioning in 2011, petitioner understood that Holt had a disc extrusion. It thus
perceived him as having a “physiological * * * con- dition * * * affecting” the “musculoskeletal”
system. 29 C.F.R. 1630.2(h)(1).

b. Contrary to petitioner’s contention (Pet. 10-17), the court of appeals’ decision does not
conflict with any decision of another court of appeals. Petitioner’s asser- tion of a circuit split
(Pet. 10) rests on its characteriza- tion of the court of appeals’ decision as announcing a per se
rule that “requiring an individualized medical exam- ination as a condition of employment
establishes that the employer ‘regards’ the prospective employee as dis- abled.” As explained
above, that characterization of the court’s decision is mistaken. See pp. 17-18, supra. And because
the court’s decision turned not on any per se rule, but rather on the particular facts of this
case, pe- titioner’s assertion of a circuit split is likewise mistaken.

The decision below does not conflict with the other published ADA decisions petitioner cites (Pet. 10-15)
for another reason: All of those other published deci- sions involved the ADA’s definition of “disability” be-fore
Congress amended the statute in 2008. See Tice v. Centre Area Transp. Auth., 247 F.3d 506, 512, 514
(3d Cir. 2001); Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 702-703 (4th Cir. 2001); Sullivan
v. River Valley Sch. Dist., 197 F.3d 804, 810 (6th Cir. 1999), cert. denied, 530 U.S. 1262 (2000);
Wright v. Illinois Dep’t of Corr., 204 F.3d 727, 730 (7th Cir. 2000); Wisbey v. City

of Lincoln, 612 F.3d 667, 672 (8th Cir. 2010); Cody v. CIGNA Healthcare of St. Louis, Inc., 139
F.3d 595, 598 (8th Cir. 1998); Lanman v. Johnson Cnty., 393 F.3d 1151, 1156 (10th Cir. 2004); see
also Sanchez v. Hender- son, 188 F.3d 740, 744 (7th Cir. 1999) (involving the Re- habilitation
Act’s parallel definition of “disability” in ef- fect at the time), cert. denied, 528 U.S. 1173
(2000). Thus, in each of those other cases, the question was whether an employer “regarded” an
individual as hav- ing “a physical or mental impairment that substantially limits one or more of
the major life activities of such individual,” 42 U.S.C. 12102(2)(A) (2006) (emphasis added)—not
whether the employer perceived the individ- ual as having any physical or mental impairment at all.

Indeed, petitioner identifies only one decision, Lan- man, in which another court of appeals
addressed the latter question. Pet. 16 (citing Lanman, 393 F.3d at 1157). And even there, the Tenth
Circuit “resolve[d] the case” on a different “basis,” explaining that, “even if [it] were to
conclude [that the employee] has sufficiently demonstrated that she was regarded as impaired, she
simply has not shown a genuine issue of fact[] exists as to whether the [employer] believed the
perceived im- pairment substantially limited her in at least one major life activity.” Lanman, 393
F.3d 1157. In any event, petitioner’s contention (Pet. 9) that the decision below conflicts with
Lanman rests on the premise that the de- cision below “held that when an employer requires an
individualized medical examination as a condition of em- ployment, that requirement in itself
establishes that the employer regards the applicant or employee as im- paired within the meaning of
the ADA.” Because that premise is erroneous, see pp. 17-18, supra, no conflict exists.

2. Petitioner also contends (Pet. 23-26) that the court of appeals erred in concluding that
petitioner dis- criminated against Holt, in violation of the ADA, by “condition[ing] Holt’s job
offer on Holt procuring an MRI at his own expense.” Pet. App. 25a. Although the EEOC took the
position below that it was entitled to summary judgment on the issue of discrimination, the United
States now agrees with petitioner that summary judgment in favor of the EEOC was inappropriate.

a. “This Court has consistently recognized a distinc- tion between claims of discrimination based
on dispar- ate treatment and claims of discrimination based on dis- parate impact.” Raytheon Co. v.
Hernandez, 540 U.S. 44, 52 (2003). A disparate-treatment claim alleges that the employer has
“treat[ed] some people less favorably than others because of” a “protected characteristic” such as
disability. Ibid. (brackets and citation omitted). “Liability in a disparate-treatment case
‘depends on whether the protected trait . . . actually motivated the employer’s decision.’” Ibid.
(citation omitted). “By con- trast, disparate-impact claims ‘involve employment practices that are
facially neutral in their treatment of different groups but that in fact fall more harshly on one
group than another and cannot be justified by business necessity.’” Ibid. (citation omitted).
“Under a disparate- impact theory of discrimination, ‘a facially neutral em- ployment practice may
be deemed illegally discrimina- tory without evidence of the employer’s subjective in- tent to
discriminate that is required in a “disparate- treatment” case.’” Id. at 52-53 (brackets and
citation omitted).

i. Disparate-treatment claims are cognizable under the ADA. Raytheon, 540 U.S. at 53; see, e.g., 42
U.S.C.

12112(a), (d)(1), and (d)(3)(A). Because “[p]roof of dis- criminatory motive is critical” under a
disparate- treatment theory, such a claim cannot succeed unless the plaintiff can identify a
decision by the employer that was motivated by disability. International Bhd. of Teamsters v.
United States, 431 U.S. 324, 335 n.15 (1977). Petitioner made three relevant decisions here:
(1) the decision to require Holt to obtain a follow-up MRI; (2) the decision to treat Holt as
having declined his job offer; and (3) the decision to require Holt to pay for the follow-up MRI.

No one argues that petitioner acted with a discrimi- natory motive in requiring Holt to obtain a
follow-up MRI. Under 42 U.S.C. 12112(d)(3), an employer may “require a medical examination” if “all
entering employ- ees are subjected to such an examination regardless of disability.” 42 U.S.C.
12112(d)(3)(A) (emphasis added). The EEOC has long taken the position that an employer may require
job applicants to undergo “follow-up exam- inations” (like MRIs) that are “medically related to
pre- viously obtained medical information,” without running afoul of the ADA’s prohibition on
disparate treatment. ADA Enforcement Guidance; see Pet. App. 19a. That is because a policy of
obtaining all medically relevant information about applicants is a facially neutral one. And
although an impairment might be “correlated with” a need for follow-up examinations under such a
policy, such correlation does not establish discrimination on the basis of disability itself. Hazen
Paper Co. v. Big- gins, 507 U.S. 604, 611 (1993); see Raytheon, 540 U.S. at 54 n.6. It is therefore
uncontested that petitioner’s decision to require the additional MRI did not, by itself, violate
the ADA. See Pet. App. 19a-20a (“[I]t would be

an odd and incomplete medical exam that could not in- clude follow-up inquiries or testing based on
red flags raised in the initial exam.”); id. at 20a (“[T]he EEOC concedes that [petitioner] could
have required Holt to get an MRI if [petitioner] had offered to pay for the MRI.”).

In its brief below, the EEOC identified the relevant discriminatory act as petitioner’s decision to
treat Holt as having declined his job offer. See EEOC C.A. Br. 37. The court of appeals, however,
correctly declined to adopt that “fram[ing]” of the “discriminatory act.” Pet. App. 18a. A policy
of conditioning job offers on “com- pletion of the medical screening process” is a facially neutral
policy. Ibid. And the record shows that, in treating Holt as having declined his offer, petitioner
simply applied such a policy here; as the EEOC itself acknowledged, petitioner “rescinded the offer
because Holt did not provide a current MRI.” EEOC C.A. Br. 38; see id. at 35 (“Holt’s inability to
procure the MRI was what caused [petitioner] to rescind his job offer.”);
C.A. E.R. 461 (Holt acknowledging that his job offer was conditioned on satisfying “medically
related” re- quirements). Because petitioner’s decision to treat Holt as having declined the offer
was based on his failure to complete the medical screening process—not on disability—that decision
did not violate the ADA.

Having rejected the EEOC’s framing of the relevant discriminatory act, the court of appeals
affirmed the grant of summary judgment on a different theory: that the discriminatory act was
petitioner’s decision to re- quire Holt to pay for the follow-up MRI. Pet. App. 19a. The record,
however, does not support that theory. As explained above, there is no dispute that petitioner’s
de-

cision to require the follow-up MRI was not discrimina- tion on the basis of disability. See pp.
21-22, supra. And there is no evidence that petitioner declines to pay for only some applicants’
follow-up MRIs. Rather, the rec- ord indicates that petitioner has a general policy of de- clining
to pay for any follow-up MRI and that Holt was subjected to the cost of paying for the MRI simply
be- cause a follow-up MRI was required. See C.A. E.R. 602 (deposition testimony of Dr. Jarrard
suggesting that the refusal to pay for Holt’s MRI reflected a general policy of not paying for
evaluations that fall in “the world of the treating providers”); id. at 603 (deposition testimony
of Dr. Jarrard stating that paying for addi- tional tests “becomes the candidate’s responsibility”
when petitioner “need[s] more information than * * * what [it] typically would get” through its
“occupational” assessments). Given the lack of evidence to the con- trary, summary judgment in the
EEOC’s favor was in- appropriate.

In reaching a contrary conclusion, the court of ap- peals reasoned that although Section
12112(d)(3) “au- thorizes testing that may disproportionately affect per- sons with disabilities,”
it is “silent as to who must bear the costs of testing” and therefore does not “authorize an
employer to further burden a prospective employee with” such costs. Pet. App. 20a. That reasoning
misun- derstands the statutory scheme. Section 12112(d)(3) does not except “testing” from the ADA’s
general pro- hibition against disparate treatment. Ibid. On the con- trary, Section 12112(d)(1)
provides that the ADA’s gen- eral “prohibition against discrimination * * * shall in- clude medical
examinations and inquiries.” 42 U.S.C. 12112(d)(1) (emphasis added). And Section 12112(d)(3)

provides that an employer may “require a medical ex- amination” if “all entering employees are
subjected to such an examination regardless of disability.” 42 U.S.C. 12112(d)(3)(A) (emphasis
added). Requiring Holt to ob- tain a follow-up MRI was lawful not because it was au- thorized by
Section 12112(d)(3), but because it did not constitute disparate treatment on the basis of
disability; as explained above, it reflected the application of a fa- cially neutral policy, with
no discriminatory motive. See pp. 21-22, supra. And if, as the record indicates, requir- ing Holt
to pay for the follow-up MRI was likewise the application of a facially neutral policy, with no
discrimi- natory motive, then it was lawful for the same reason: because it did not constitute
disparate treatment on the basis of disability. See pp. 22-23, supra.

The court of appeals also reasoned that “[w]here * * * an employer requests an MRI at the applicant’s
cost only from persons with a perceived or actual im- pairment or disability, the employer is imposing
an ad- ditional financial burden on a person with a disability because of that person’s disability.” Pet.
App. 21a (em- phasis added). But the record contains no evidence that petitioner declines to pay for a
follow-up MRI only when the applicant is perceived as having an impairment. Ra- ther, the record indicates
that petitioner has a general policy of declining to pay for any follow-up MRI, whether the applicant is perceived
as having an impair- ment or not. See C.A. E.R. 602-603.

Moreover, to the extent that the court of appeals was concerned that such a general policy would
have a dis- parate impact on individuals with disabilities, that con- cern was misplaced. The EEOC
forfeited any disparate- impact claim by not pursuing, or presenting evidence to support, such a
claim below. See EEOC C.A. Br. 53-54;

Raytheon, 540 U.S. at 53. And in any event, disparate- impact claims are incompatible with the
“regarded as” prong of the ADA’s definition of “disability.” Unlike the other two prongs of that
definition, the “regarded as” prong turns on the “perception” of the employer; liabil- ity will not
lie unless the individual is “treated as if he has an impairment.” 1990 House Report Pt. 3, at 30.
Unlike the other two prongs, moreover, the “regarded as” prong contains its own language specifying
the nec- essary relationship between the employer’s action and the protected trait: It requires a
showing that the indi- vidual “has been subjected to an action prohibited un- der this chapter
because of an actual or perceived phys- ical or mental impairment.” 42 U.S.C. 12102(3)(A) (em-
phasis added). Although this Court has recognized disparate-impact liability under other statutes’
provi- sions containing the phrase “because of,” it has done so only when the provisions in
question “refer[red] to the consequences of actions and not just the mindset of ac- tors.” Texas
Dep’t of Hous. & Cmty. Affairs v. Inclu- sive Cmtys. Project, Inc., 135 S. Ct. 2507, 2518 (2015).
The “regarded as” prong does not refer to such conse- quences; rather, it refers exclusively to the
employer’s perception and to actions taken because of that percep- tion. Accordingly, the “regarded
as” prong is naturally understood to encompass only disparate-treatment claims.

ii. Because the court of appeals concluded that the EEOC was entitled to summary judgment on its
claim that petitioner had violated Section 12112(a)’s general prohibition against discrimination,
the court did not reach the EEOC’s alternative argument that petitioner had violated Section
12112(b)(6)’s prohibition against the use of certain “qualification standards, employment

tests, or other selection criteria,” 42 U.S.C. 12112(b)(6). Pet. App. 25a n.12. Section
12112(b)(6), however, can- not serve as an alternative basis for the court’s judg- ment. The EEOC
pursued a Section 12112(b)(6) claim below, but did so only on a disparate-treatment theory. See
Pet. App. 41a-42a; EEOC C.A. Br. 49-54. To the extent that such a theory may be pursued under
Section 12112(b)(6), liability would still require a showing of dis- criminatory motive. See
Raytheon, 540 U.S. at 52. Given the lack of evidence of such motive, see pp. 21-24, supra, summary
judgment in the EEOC’s favor on its Section 12112(b)(6) claim is likewise unwarranted.

Moreover, Section 12112(b)(6) applies only to the use of “qualification standards, employment tests
or other selection criteria,” 42 U.S.C. 12112(b)(6), and the re- quirement that Holt pay for a
follow-up MRI was none of those things. Pet. App. 43a. The reason petitioner did not “select[]”
Holt for the job was his failure to complete the medical screening process. 42 U.S.C. 12112(b)(6);
see p. 22, supra. Completion of the medical screening process—not the requirement to pay for the
follow-up MRI—was thus the “selection criteri[on]” used in this case. 42 U.S.C. 12112(b)(6); see 29
C.F.R. Pt. 1630, App. at 424 (giving “safety requirements, vi- sion or hearing requirements,
walking requirements, [and] lifting requirements” as examples of “selection criteria”). Section
12112(b)(6) therefore cannot be in- voked to support the judgment below.

b. Because the government now agrees with peti- tioner that the EEOC was not entitled to summary
judgment, it would be appropriate to grant the petition for a writ of certiorari, vacate the
judgment below, and remand the case (GVR) for further consideration in light of the position
asserted in this brief. See Lawrence

v. Chater, 516 U.S. 163, 165-175 (1996) (per curiam). The Court has previously issued a GVR in
cases in which the United States confessed that the judgment reached by the court of appeals was
incorrect. See, e.g., France v. United States, 136 S. Ct. 583 (2015) (No. 15-
24); Tax-Garcia v. United States, 572 U.S. 1112 (2014)
(No. 13-8627); Breland v. United States, 565 U.S. 1153 (2012) (No. 11-6912). The Court should
follow the same course here.

Contrary to petitioner’s contention, plenary review is not warranted at this time. Petitioner errs
in assert- ing (Pet. 21-22) that the decision below conflicts with Porter v. United States
Alumoweld Co., 125 F.3d 243 (4th Cir. 1997), and O’Neal v. City of New Albany, 293 F.3d 998 (7th
Cir. 2002). Porter involved an employee who injured his back while working as a machine oper- ator.
125 F.3d at 245. His employer put him on a leave of absence and required him to undergo a
“functional capacity evaluation” at his own expense before he could be permitted to return to work.
Ibid. After the em- ployee failed to undergo the evaluation, his employer terminated him. Id. at
245-246. The employee sued his employer, alleging that his termination violated the ADA. Id. at
245. The Fourth Circuit concluded that “the ADA allowed [the employer] to request a medical
examination from [the employee] and, therefore, the [employer’s] decision to terminate him did not
violate the ADA.” Id. at 246. Because the employee did not challenge—and the Fourth Circuit did not
address—the employer’s decision to require the employee to pay for the evaluation, the Fourth
Circuit’s decision does not conflict with the decision below.

There is likewise no conflict between the decision be- low and the Seventh Circuit’s decision in
O’Neal. The

plaintiff in O’Neal had applied to be a police officer. 293 F.3d at 1002. During a post-offer,
preemployment med- ical examination, a physician concluded that the plaintiff had various “heart
problems.” Ibid.; see id. at 1008- 1009. The defendants made the plaintiff’s job offer con- tingent
on his undergoing additional medical tests at his own expense. Id. at 1002. After the plaintiff
failed to undergo those tests, the defendants declined to hire him. Ibid. The plaintiff sued,
alleging that the defend- ants had violated the ADA “by rejecting him from em- ployment based on
conditions identified by [the physi- cian] wholly unrelated to his ability to perform as a po- lice
officer.” Id. at 1009-1010. The plaintiff “con- cede[d],” however, “that he d[id] not have a
disability; nor d[id] he argue that the defendants regarded him as having one.” Id. at 1010. The
Seventh Circuit therefore concluded that the plaintiff had “not shown that the de- fendants used
his medical examination results in viola- tion of the ADA.” Ibid.

Because neither Porter nor O’Neal addressed whether the employers’ decisions to require the plain-
tiffs to pay for their medical examinations violated the ADA, petitioner’s asserted circuit
conflict does not ex- ist. And even if it did, a GVR here would vacate the only decision on one
side of the asserted split, thereby elim- inating any need for plenary consideration of the issue
at this time.

Petitioner also asserts (Pet. 26-32) that the decision below conflicts with federal regulations
promulgated by the Office of Personnel Management (OPM). No such conflict exists. OPM’s regulations
permit federal agen- cies to require applicants for certain federal positions to undergo “[a]
routine pre-employment medical examina- tion.” 5 C.F.R. 339.301(a). The regulations provide that

the “agency must pay” for that examination, “whether conducted by the agency’s physician or medical
review officer, an independent medical evaluation specialist (e.g., occupational audiologist)
identified by the agency, or a licensed physician or practitioner chosen by the ap- plicant.” 5
C.F.R. 339.304(a). The regulations further provide that if the applicant wishes to provide “supple-
mental” medical information, the applicant “is responsi- ble for payment” of any “further
examination.” 5 C.F.R. 339.304(b). Providing supplemental information, how- ever, is optional; the
agency will “render a final medical determination” whether supplemental information is provided or
not. Ibid. The court of appeals’ conclusion that petitioner “impermissibly conditioned Holt’s job
offer on Holt procuring an MRI at his own expense,” Pet. App. 25a, therefore has no bearing on the
validity of OPM’s regulations, which do not make providing supplemental information a condition of
completing the medical screening process. In any event, a conflict between a court of appeals’
decision and federal regulations—which are within the government’s power to revise—is not the type
of conflict that would warrant this Court’s review. See Sup. Ct. R. 10; cf. Braxton v. United
States, 500 U.S. 344, 348 (1991) (explaining that the Court is “more restrained and circumspect” in
granting review of issues involving the Sentencing Guidelines, which the Sentencing Commission can
amend).

CONCLUSION

The petition for a writ of certiorari should be granted, the judgment of the court of appeals
vacated, and the case remanded to the court of appeals for fur- ther proceedings in light of the
position asserted in this brief.

Respectfully submitted.

NOEL J. FRANCISCO
Solicitor General

ERIC S. DREIBAND
Assistant Attorney General

THOMAS E. CHANDLER
Attorney

AUGUST 2019

Updated April 18, 2023