Jacalyn Thornton v. McClatchy Newspapers, Inc.

292 F.3d 1045, 2002 Daily Journal DAR 6521, 2002 Cal. Daily Op. Serv. 5136, 2002 U.S. App. LEXIS 11096, 2002 WL 1275670

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 11, 2002
• Docket: 99-15857
• Status: Published

Opinions

ORDER SUPPLEMENTING OPINION

HAWKINS, Circuit Judge.

ORDER

We stayed the mandate of this case pending resolution of the Supreme Court’s decision in Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). Having solicited and considered the views of the parties on the impact of that case, we write to clarify the Opinion we earlier filed. Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789(9th Cir.2001).

We note first that although we earlier viewed as waived Thornton’s argument that she is substantially limited by the restriction she faces on continuous keyboarding and writing, see id. at 797 n. 5, we are now prepared to give this argument, in our view her strongest argument, consideration, and we do so for two reasons. First, á party may pursue an issue not raised earlier when a change in the law occurs after the brief was filed. Louisiana-Pacific Corp. v. ASARCO, Inc., 24 F.3d 1565, 1583, (9th Cir.1994). Here, the Supreme Court issued a new opinion clarifying the law in this area. More importantly, because of the supplemental briefing, the parties have had a full and fair opportunity to argue the merits of the issue. .. ■

That said, we are unpersuaded that Thornton’s inability to continuously keyboard or write is within the confines of what the Williams Court defined as a “substantial limitation.” The Court ruled that “to be substantially limited in performing manual tasks,’ an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance in most people’s daily lives.” Williams, 122 S.Ct. at 691.

While most lawyers or law office personnel would undoubtedly consider continuous keyboarding and handwriting to be activities of central importance to their fives, we cannot say that is so for “most people’s daily lives,” as Williams requires. Being restricted from continuous keyboarding and handwriting is different from what Judge Berzon describes in her dissent as the “ability to use one’s arms and hands to produce, by computer (or by handwriting), written communications and records.” 261 F.3d at 801. Thornton’s condition does not stop her from either activity; she simply cannot pursue them continuously.

We concede that Thornton’s life has been diminished by her inability to engage in continuous keyboarding or handwriting. But diminished is different from “substantially limited,” at.least as understood by Congress and the Supreme Court. For this reason, our earlier judgment — that the district court’s grant of summary judgment on Thornton’s ADA claims should be affirmed — was correct.

Order; Dissent by Judge BERZON.