Thursday, March 15, 2012

2d Circuit quietly applies Amended ADA retroactively

In 2008, Congress amended the Americans with Disabilities Act to overturn Supreme Court decisions that had narrowly applied the statute. The Americans with Disabilities Amendments Act (ADAAA) took effect on January 1, 2009. Among other things, the ADAAA broadens the definition of who is "disabled" under federal law, making it easier for plaintiffs to win their cases. No court has applied the ADAAA retroactively ... until now.

The case is Hilton v. Wright, decided on March 9. I have summarized the case at this link. Briefly, Hilton was an inmate in state prison. He was diagnosed with Hepatitis C virus and wanted treatment at the jail. Dr. Hilton would not provide Hilton that treatment, so Hilton sued in federal court under the Eighth Amendment (cruel and unusual punishment) and the Americans with Disabilities Act. The Second Circuit vacated summary judgment because the district court issued a cursory decision that did not fully explain why plaintiff was not entitled to a trial.

In ordering the district court to resolve the motion again, the Second Circuit provided some guidance on remand, ruling that the ADAAA, not its predecessor, governs this case. As I wrote in yesterday's summary of the case,

Hilton also sues under the Americans with Disabilities Act. The Court says that under the old ADA, Hilton probably does not have a "disability" under the law, because "to avail himself of the 'regarded as' prong of the definition of 'disability' [Hilton] needed to show that he was perceived as both 'impaired' and 'substantially limited in one or more major life activity.'" Thus, "under the old regime, Hilton could survive summary judgment on his ADA claim only if he could raise a genuine issue of material fact about whether Dr. Wright and/or DOCS regarded him personally as being substantially limited in a major life activity. The record is devoid of any such evidence."

The ADA Amendments Act (ADAAA) changes the legal standard, making it easier for plaintiffs to win their cases. Under the new law, which applies to Hilton's case, "An individual meets the requirement of 'being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this Act 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." The difference between the new ADA and the old ADA is that to prevail under a "perceived as disabled" claim, the plaintiff need only show that the defendants believed he had an impairment, even if that impairment does not impair a major life activity.
This lawsuit was filed in 2005, so the Complaint does not raise any events post-dating January 1, 2009. The question in this case is whether DOCS violated Hilton's rights under federal disability law when Dr. Wright denied him treatment in 2005. Yet, the Court of Appeals expressly applies the ADAAA, which took effect four years later. The Second Circuit (Winter, Pooler and Hall) does not address whether the ADAAA has retroactive effect (and does not acknowledge cases from around the country that go the other way on this issue), but in applying the Amended Act, the Court is in fact applying it retroactively. This is significant, because no court, to my knowledge, has held the ADAAA has retroactive effect.

In 2009, a Southern District of New York judge noted, "Primmer acknowledges that all courts, in this Circuit and elsewhere, that have addressed the question of whether the ADAAA applies retroactively to claims filed before its effective date have answered in the negative." Primmer v. CBS Studios, Inc., 667 F. Supp. 2d 248, 257 (S.D.N.Y. 2009) (citing, inter alia, Lytes v. DC Water & Sewer Auth, 572 F.3d 936 (D.C. Cir. 2009); Milholland v. Sumner County Bd. of Educ, 569 F.3d 562, 567 (6th Cir. 2009)). And, in Villanti v. Cold Spring Harbor Cent. Sch. Dist., 733 F. Supp. 2d 371, 377 (E.D.N.Y. 2010), a judge noted that "While the Second Circuit has not yet addressed this issue in a published decision, it has held in multiple summary orders that the ADAAA does not apply retroactively. ... Moreover, other federal district and circuit courts have held almost universally that the ADAAA does not apply retroactively. ... The Court finds these cases to be persuasive. The ADAAA contains no language indicating that it applies retroactively, and it would work an injustice on parties to be held liable for conduct that they would have reasonably believed at the time was in compliance with the law."

So the question is, did the Second Circuit inadvertently apply the ADAAA retroactively? I doubt it. This case was argued in March 2011; the Court had a long time to think about this. It also noted that the parties did not brief this case under the ADAAA. That did not stop the Court of Appeals from resolving this case under the ADAAA anyway. 

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