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Court of Appeals Case No. 99-15857 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JACALYN THORNTON, Plaintiff/Appellant, v. McCLATCHY NEWSPAPERS, INC. Defendants/Appellees. Appeal from the United States District Court for the Eastern District of California Honorable Robert E. Coyle, United States District Judge District Court Case No. CV-F-97-6002 REC DLB APPELLEE’S SUPPLEMENTAL BRIEF PURSUANT TO COURT’S JANUARY 4, 2001 ORDER SEYFARTH, SHAW KATHRYN K. MORRISON. (Bar No. 1228845) MARTHA MICHAEL GATES (Bar No. 160002) TARA M. LEE (Bar No. 204221) 400 Capitol Mall, Suite 2350 Sacramento, California 94814 Telephone: (916) 448-0159 Counsel for Defendant/Appellee McClatchy Newspapers, Inc. On January 4, 2001, the Court requested additional briefing on two questions: 1) Is an inability to perform the manual tasks involved in handwriting and/or written communication an impairment of a “major life activity,” under the framework recognizing major life activities set forth by the Supreme Court and as applied by the Ninth Circuit? and 2) Is that question properly before this Court, or has it been waived by Appellant? The first question must be answered in the negative. Handwriting and/or written communication are not in themselves “major life activities” under the Americans With Disabilities Act (“ADA”). The significance of handwriting or keyboarding is simply not on par with those basic, essential human functions that have been held to constitute major life activities under the ADA. To the extent the Court is asking whether handwriting or written communication constitute the major life activity of performing manual tasks, that question must also be answered in the negative. Thornton’s limitations on handwriting or keyboarding do not involve a broad class of manual activities but rather are confined to a subset of manual tasks. As to the second question, Thornton failed to specifically and distinctly raise any argument that handwriting and/or written communication themselves are “major life activities” or together constitute the major life activity of performing manual tasks in her Opening Brief. Accordingly, these argument are waived and not properly before this Court. I. HANDWRITING AND/OR WRITTEN COMMUNICATION ARE NOT MAJOR LIFE ACTIVITIES UNDER THE ADA A. A Major Life Activity Under the ADA Must Be A Significant Basic Life Function In The Life of The Average Person Although the term “major life activity” is not defined in the ADA, the United States Supreme Court, relying directly on the ADA and Rehabilitation Act regulations, set forth a framework for determining if a proposed activity is a major life activity within the meaning of the ADA. See Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 2205 (1998). The Court concluded that the statute and regulations do not enunciate “a general principle for determining what is and is not a major life activity,” but instead provide a “representative list,” which is intended to be “illustrative, not exhaustive.” Id. This representative list defines the term “major life activity” by focusing on basic life-process “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” See 45 C.F.R. � 84.3 (j)(2)(ii)(1997); 28 C.F.R. � 41.31(b)(2)(1997). The Bragdon Court held that the plain meaning of “major” in the phrase “major life activity” “denotes comparative importance and suggest[s] that the touchstone for determining an activity’s inclusion under the statutory rubric is its significance.” 118 S. Ct. at 2196; See also McAlindin v. County of San Diego, 192 F.2d 1226 (9th Cir. 1999)(quoting Bragdon). The term “major life activity” by its ordinary and natural meaning, directs us to distinguish between life activities of greater and lesser significance. Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 151 (2nd Cir. 1998). Thus, in order for a proposed activity to fall within the framework of the ADA, it must have the same importance as those in the representative list. Additionally, major life activities must be significant in the life of the average person. McAlindin, 192 F.3d at 1234. In deciding whether a particular activity is a “major life activity,” the relevant question is whether the activity is a significant one within the contemplation of the ADA, rather than whether the activity is important to a particular plaintiff. Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir. 1999); see also Sinkler v. Midwest Property Mgmt. Ltd., 209 F.3d 678, 683 (7th Cir. 2000). We do not think that such major life activities as seeing, hearing, or walking are major life activities only to the extent that they are shown to matter to a particular ADA plaintiff. Rather, they are treated by the EEOC regulations and by our precedents as major life activities per se. Reeves, 140 F.3d at 152. In concluding that sleeping and sexual relations are major life activities, this Court in McAlindin considered the impact of these activities “in the lives of most people,” not a particular individual. 192 F. 3d at 1234 (“sexuality is a fundamental part of how we bond in intimate relationships” and “common sense suggests that sleeping is also a major life activity in the lives of most people”) (emphasis supplied). Indeed, the ADA�with its reference to “the major life activities”�implies that a corresponding case-by-case inquiry into the connection between the plaintiff and the major life activity is not necessary. The Supreme Court adopted this approach in Bragdon when it determined that reproduction is a major life activity without considering whether reproduction was an important part of the respondent’s life. Bragdon, 118 S. Ct. at 2204-05. In direct contravention of the Supreme Court’s holding in Bragdon, Thornton erroneously argues that the Supreme Court “has further clarified that what is a major life activity for one person may not be for another….” Appellant’s Post-Argument Brief (“Supp. Brf.”) at 1. Thornton’s entire argument in her Supplemental Brief is precariously balanced on the incorrect assumption�that “an individualized inquiry of the significance of written communication to Plaintiff” is necessary to determine whether writing is a major life activity under the ADA. Supp. Brf. at 2. However, whether an activity is a major life activity does not turn on the particular facts of the case; it is only in connection with the determination of whether an impairment “substantially limits” a particular plaintiff’s exercise of a major life activity that an individualized inquiry is required. Reeves, 140 F.3d at 152, and cases cited therein. Accordingly, the significance to Thornton is irrelevant to the instant issue. By suggesting that the significance of written communication to Thornton determines whether handwriting or written communication is a major life activity, Thornton tailors the definition of the major life activity to fit the circumstances of her impairment. This approach is contrary to common sense. For example, although courts have concluded that driving is not a major life activity, under Thornton’s analysis, driving would be a major life activity for certain people, such as truck drivers, taxi cab drivers, and bus drivers. See, e.g., Colwell v. Suffolk County Police Dept., 158 F.3d 635, 643 (2nd Cir. 1998). Moreover, Thornton’s individualized approach to defining a major life activity also is contrary to case law and results in an interpretation of the ADA that contravenes the Supreme Court’s expressed policy in Sutton v. United Airlines, 527 U.S. 471 (1999). In Sutton, the Court rejected an interpretation of the term “disability” that would have resulted in protection for a much larger class of persons. Id. Instead, it found that Congress intended to use a “functional limitation” concept in determining who is disabled and chose to interpret “disability” in such a manner consistent with the goal of Congress to protect a certain designated class of individuals. 527 U.S. at 483-488. Similarly, any approach that would either interpret major life activities by looking at what is important to the individual, a specific category of individuals or in any other manner that would include major life activities which are not basic life functions would be contrary to the reasoning in Sutton and the determined intent of Congress to protect the “isolated and segregated individuals,” who “as a group occupy an inferior status” and who are “severely disadvantaged socially, vocationally, economically, and educationally.” 42 U.S.C. � 12101(a). Thornton’s condition does not represent such a person. Thornton’s analysis would also render the regulations setting forth the test for a “substantial limitation” meaningless. Under the regulations, to show a substantial limitation, an individual must show either a complete inability to perform the major life activity “that the average person in the general population can perform” or show a significant restriction “as to the condition manner or duration as compared to how the average person in the general population can perform that same major life activity.” 29 C.F.R. � 1630.2(j)(1). If major life activities were determined in terms of what is important to each plaintiff, the requirement for comparative evidence required by the regulation would be meaningless. Finally, Thornton’s attempts to individualize and dilute the definition of a major life activity would undermine the role of the statute’s “substantial limitations” inquiry, which ensures that only impairments of some significance are protected. Depending on how narrowly the scope of the major life activity is framed, the ADA plaintiff’s burden of making an individualized showing of a substantial limitation will vary accordingly. [A]n ADA plaintiff could considerably lessen the burden of making an individualized showing of a substantial limitation were he able to define the major life activity as narrowly as possible, with an eye toward conforming the definition to the particular facts of his own case. Reeves, 140 F. 3d at 152. If the courts permit individual tailoring of the scope of the major life activity, the case-by-case inquiry into whether an impairment entails a “substantial limitation” is fixed from the outset because it will be, in short, pre-determined by any given plaintiff. B. Handwriting and Written Communications Are Not Significant Basic Life Functions Within The Meaning of the ADA Utilizing the Bragdon/McAlindin standard, handwriting and/or written communication simply do not have the same significance in the life of the average person as compared to other designated “major” life process activities such as walking, seeing, hearing, speaking, breathing, learning and working. Specifically, unlike walking or breathing, handwriting or keyboarding are not “essential, regular function[s].” See McAlindin, 192 F. 3d at 1234. Unlike sleeping, handwriting or keyboarding are not “indispensable to the maintenance of personal health” and the average person does not spend one-third of each 24 hour day handwriting or keyboarding. Id. Unlike sexual relations, handwriting or keyboarding are not “fundamental part[s] of how we bond in intimate relationships.” Id. Unlike reproduction, handwriting or keyboarding are not “central to the life process itself.” Bragdon, 118 S. Ct. at 2205. Handwriting and written communication are not so infused in the daily lives of the average person and do not rise to the level of significance in the “lives of most people” in the same sense as walking, breathing, seeing, hearing, sleeping, and sexual relations. In fact, many people go through their daily lives never touching a computer or typewriter and never writing anything more than their signature on an occasional credit card receipt. It is not surprising that there is no authority for the proposition that handwriting and written communication are cognizable as major life activities for the purpose of the ADA. While handwriting and written communication may be an important skill for learning or certain occupations, jumping to the conclusion that they are therefore major life activities within the meaning of the ADA is not supported by the spirit or letter of the ADA or the framework set forth in Bragdon or McAlindin. Handwriting and written communication are components of major life activities, such as working or learning�they are not major life activities in and of themselves. In order to raise handwriting and written communication to the level of a major life activity they must be equally significant to the listed activities set forth in the ADA regulations. Because neither are fundamental or central to the life process of the average person, they are not major life activities. C. Thornton’s Limitations on Handwriting and/or Written Communication Do Not Substantially Impair The Major Life Activity of Performing Manual Tasks. As a result of the Court’s use of the phrase “manual tasks” in question 1 of its Order for Supplemental Briefing, the question appears to ask whether by virtue of the inability to perform the “manual tasks involved in handwriting and/or written communication,” a person therefore is impaired in the major life activity of performing manual tasks. However, to show an impairment of the major life activity of “performing manual tasks,” Thornton must demonstrate a substantial limitation on a broad range or class of manual tasks. Chanda v. Engelhard/ICC, 234 F.3d 1219, 1223 (11th Cir. 2000). See also Appellee’s Answering Brief, pp. 30-35 and cases cited therein. In Chanda, the Court held that to be impaired in the major life activity of manual tasks, a plaintiff must show that he is substantially limited in a range of manual tasks rather than a narrow category of the same. The court focused not only on what plaintiff alleged his tendinitis precluded him from doing (turning handles, grasping, holding or lifting object, using a computer or writing with a pen), but also on the manual tasks plaintiff admitted he was able to perform, (assisting in household activities, attending school and taking notes, some writing, some computer use, and dressing, feeding and driving himself). Id. at 1222. The court concluded that Chanda’s tendinitis only rendered him unable to perform a narrow range of activities causing pain in his wrist. Similarly, in this case, Thornton has only identified a narrow range of activities causing pain (typing, handwriting, driving long distances, and “various other commonplace manual activities”). Appellant’s Opening Brief at 15. Additionally, Thornton is not precluded from handwriting or keyboarding. She is able to perform these tasks but experiences some pain in doing so. Thornton’s diminished activity tolerance for performing manual tasks does not constitute a disability under the ADA. Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220, 1228 (11th Cir. 1999). II. THORNTON WAIVED ANY ARGUMENT THAT HANDWRITING AND WRITTEN COMMUNICATION THEMSELVES CONSTITUTE MAJOR LIFE ACTIVITIES OR COMBINED CONSTITUTE THE MAJOR LIFE ACTIVITY OF PERFORMING MANUAL TASKS If an appellant fails to “specifically and distinctly” raise an issue or an argument in her opening brief, that issue or argument has been waived and cannot be then considered as an issue or argument on appeal. United States v. Real Property Known as 22249 Dolorosa St., Woodland Hills, Cal., 190 F.3d 977, 981 (9th Cir. 1999). This oft-quoted edict is attributed to the strict requirements of the Federal Rules of Appellate Procedure. See Hernandez v. City of Los Angeles, 624 F.2d 935, 937 n. 2 (9th Cir. 1980)(an issue not raised in an opening brief is not perfected for appeal in accordance with the Federal Rules of Appellate Procedure). Those rules require that the argument section of appellant’s opening brief specifically set forth appellant’s contentions with legal analysis and factual support. See Fed. R. App. Proc. 28(a)(9). It is this degree of specificity that courts have required in order to determine whether an issue has been raised in a “specific” and “distinct” enough manner in the opening brief to avoid waiver. Gagan v. American Cablevision, Inc., 77 F.3d 951, 965 (7th Cir.1996) (failure to cite any factual or legal basis for an argument waives it). It is not enough to mention an issue or argument in the opening brief. To satisfy the specificity requirement, the appellant must present both argument and discussion. In Peck v. Shell Oil Co., 142 F.2d 141 (9th Cir. 1944), the Court concluded that “(w)ith respect to many of the ‘points’ stated by appellants no argument or discussion is presented in their opening brief. Therefore, those ‘points’ are deemed abandoned and need not be considered herein.” Id at 143. In Collins v. City of San Diego, 841 F.2d 337 (9th Cir. 1984), plaintiff contended in her opening brief that she was appealing from the district court’s judgment on her Title VII claim, but she offered no argument and presented no authority on the issue. The Court deemed that issue waived: “(i)t is well established in this Circuit that claims which are not properly explored in the appellant’s brief are deemed abandoned.” Id. at 339, citing Kates v. Crocker Nat. Bank, 776 F.2d 1396, 1397 n. 1 (9th Cir.1985); see also Simpson v. Union Oil Co. of Cal., 411 F.2d 897, 900 n. 2 (9th Cir.), rev’d on other grounds, 396 U.S. 13, 90 S.Ct. 30, 24 L.Ed.2d 13 (1969) (issues not discussed in briefs, although referred to in statement of case and specifications of error, are deemed abandoned and need not be considered). Similarly, a conclusionary contention does not provide a sufficient basis for review. Kopczynski v. The Jacqueline, 742 F.2d 555, 560 (9th Cir. 1984) (conclusionary contentions of inadequacy of jury instructions not sufficient). Finally, issues are waived if not argued in the opening brief, despite the existence of supplemental briefing. See Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1110 n.1 (9th Cir. 2000) and Kreisner v. City of San Diego, 1 F.3d 775, 778 n.2 (9th Cir. 1993). A. Thornton Did Not Assert Handwriting or Written Communication as a Claimed Major Life Activity on Appeal Under the law of this Circuit, Thornton waived the issue whether handwriting and/or written communication are major life activities. Indeed, in Thornton’s opening brief she specifically limited the issues on appeal: “(p)laintiff is disabled because she is substantially impaired in the major life activities of working and �performing manual activities’.” Appellant’s Opening Brief, at p. 12. Thornton did not mention let alone specifically and distinctly address whether handwriting or written communication constituted a major life activity under the ADA. In fact, not only are Thornton’s opening and reply brief silent on this issue, they also fail to argue the necessary corollary that she was substantially limited in these alleged major life activities. Moreover, the Supreme Court in Bragdon, supra, made it clear that the court’s proper role is to analyze only the major life activity asserted by the plaintiff. 524 U.S. at 637-638; 118 S. Ct. at 2204-05. In Bragdon, despite acknowledging little doubt that “had different parties brought the suit” they may well have identified other major life activities impaired by HIV, the Court explicitly limited its analysis only to the major life activity of reproduction. Id. Clearly, the Bragdon Court resisted the considerable urge to re-frame the issue and re-name the major life activity, instead restricting its analysis to the major life activity asserted by plaintiff. Similarly, Thornton’s failure to assert handwriting or written communication as a major life activity precludes the Court’s consideration of the issue in this case. Having failed to assert this claim on appeal, Thornton now advances the somewhat novel theory that “for all intents and purposes, handwriting/written communication is merely a lesser-included major life activity of performing manual tasks” and because she mentioned “performing manual tasks” in passing in her opening brief, she has not waived the argument that handwriting and written communication are separate major life activities. Supp. Brf. at p. 3. However, appellate courts have explicitly rejected this “lesser-included” or “sub-species” argument against waiver. In Sinkler v. Midwest Property Management Ltd. Partnership, 209 F.3d 678 (7th Cir. 2000), the Court noted that plaintiff was trying to “re-characterize” the activity of “working” by focusing on the narrower “sub-species” activity of “getting to and from work assignments” and suggested that plaintiff had done so “in the hope that we will reach a more favorable determination of the extent to which her impairment limits this activity.” Id. at 684-685. The Court rejected this argument: “We conclude that “working” is the major life activity that Sinkler claims her impairment limits, and we will evaluate her claim…from that perspective.” Id. at 685. Similarly, Thornton’s claim that she raised the issue sufficiently in a “lesser-included” context must be disregarded. On appeal, she only raised working and manual tasks as major life activities. She never even mentions the activity of written communication. Her buried references to the term “handwriting” and the total absence of case law or factual support for the argument that the inability to handwrite or communicate in writing, alone, impairs or constitutes a major life activity, are insufficient to preserve an argument on appeal. Finally, Thornton’s buried references to handwriting and keyboarding as examples of manual tasks does not meet the specificity requirement to preserve the separate issue that each itself constitutes a major life activity on par with major life activities like breathing, walking and seeing. Indeed, by arguing that “handwriting/written communication is merely a lesser-included major life activity of performing manual tasks,” Thornton concedes that handwriting or written communication alone do not constitute a major life activity. Thornton also acknowledges that handwriting/written communication is but one “lesser” task in the broad range of manual tasks. By arguing that handwriting in combination with other manual tasks constitutes a major life activity, Thornton similarly concedes that handwriting (or written communication) alone is insufficient to constitute a major life activity. Accordingly, she failed to specifically and distinctly argue that either handwriting and/or written communication is a major life activity. B. Thornton’s Passing Reference To “Performing Manual Tasks” In Her Opening Brief Does Not Preclude Waiver Thornton mentions “performing manual tasks” only three times in her opening brief– once in a heading and two times as statements of conclusion that she is substantially impaired. Appellant’s Opening Brief at 12, 15, 16. Thornton offers no case law or legal argument. A summary assertion in the opening brief will not preserve the issue for appeal�appellant must provide reasoning for her position. Seattle School Dist. No. 1 v. B.S. , 82 F.3d 1493, 1507 (9th Cir. 1996). The federal appellate rules mandate that an appellant’s argument must contain contentions and the reasons for them, with citations to authorities and parts of the record on which the appellant relies. See Fed. R. App. Proc. 28(a)(9)(A). Despite this clear direction, Thornton’s opening brief fails to contain anything more than a passing reference to “manual tasks.” In Greenwood v. Federal Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994), this Circuit reiterated the rule of law requiring specific argument to preserve an issue by proclaiming “(w)e review only issues which are argued specifically and distinctly in a party’s opening brief. We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim…” (italics added), citing United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (per curiam). As the Seventh Circuit succinctly observed: “(j)udges are not like pigs, hunting for truffles buried in briefs.” Dunkel, 927 F.2d at 956. Indeed, Thornton would have the Court sniff out every potential major life activity briefly mentioned in passing or buried in every list of descriptive tasks with which it is presented. Thornton’s bare assertion that she was substantially impaired from performing manual tasks in her opening brief is not sufficient and certainly does not preserve the issue of whether handwriting or written communication are major life activities. Nor can Thornton revive the argument by addressing it in her reply brief. Although in her reply brief Thornton addressed the issue that writing and keyboarding are manual tasks under the ADA, she never argued they were of themselves major life activities. Moreover, her failure to address the issue in her opening brief is dispositive of the waiver issue. See Barnett v. U.S. Air, Inc., 228 F. 3d 1105, 1110 n. 1 (9th Cir. 2000); Kreisner v. City of San Diego, 1 F.3d 775, 778 n.2 (9th Cir. 1993). C. Thornton’s Argument Against Waiver Has No Merit To urge the Court to consider the issue despite her waiver, Thornton argues that this Court “has the discretion to entertain issues omitted from briefs if it would do so in the interests of justice.” This argument is misapplied. The case Thornton cites for this proposition, United States v. Holzman, 871 F.2d 1496, 1512 (9th Cir.1989), actually refers only to the power of the Court to affirm a district court’s decision on any ground finding support in the record. The Holzman court decided to affirm a district court ruling that a search was warranted on different grounds from those briefed by appellant, citing specifically to Smith v. Block 784 F.2d 993, 996 n.4 (9th Cir. 1986) (We may affirm a district court’s decision on any ground finding support in the record) and Bruce v. United States 759 F.2d 755, 758 (9th Cir. 1985) (If the district court’s decision is correct, it must be affirmed, even if the district court relied on the wrong grounds or reasoning). Nothing in the Holzman case reasoning or that of its progeny on this issue supports Thornton’s plea for this court to overturn the district court’s ruling on issues not raised in her Opening Brief. Indeed, the law is otherwise. Moreover, Thornton provides no legal authority or persuasive analysis as to why the interests of justice are served by ignoring the overwhelming case law in this instance. Thornton merely labels her failure to raise an argument on appeal as a “technicality” and an “error in nomenclature.” Supp. Brf. at 4. The only interests served here by considering an argument that has been waived are the interests of Thornton. If the Court were to conclude that Thornton’s “technicality” label alone justifies consideration of a waived issue, every appellant would be able to make the same argument. The interests of justice are not served by accommodating the self-serving interests of a single appellant. Accordingly, the circumstances here do not merit jettisoning the substantial body of case law that holds the failure to specifically and distinctly raise an argument in an opening brief constitutes waiver of the issue. III. CONCLUSION Under the framework set out by Bragdon, Sutton, and McAlindin, handwriting and written communication are not independently major life activities because they do not hold the same significance as those basic life process functions such as breathing, seeing, hearing, walking, sleeping, having sex, and reproducing. Additionally, handwriting and written communication collectively do not constitute the major life activity of performing manual tasks. Consequently, Thornton has failed to establish that any major life activity has been substantially limited by her impairment. Due to her failure to specifically and distinctly argue in her opening brief that handwriting and written communication are themselves major life activities under the disability discrimination laws or that handwriting and written communication constitute the major life activity of “performing manual tasks,” Thornton has indeed waived these arguments and thus these questions are not properly before this Court. Conclusionary contentions in Thornton’s opening brief do not preserve these issues for appeal. DATED: February 16, 2001 SEYFARTH, SHAW By MARTHA MICHAEL GATES Attorneys for Defendant/Appellee McCLATCHY NEWSPAPERS, INC.

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