Kennedy v. Bowser

Kennedy, a D.C. fireman, had a beard. Department policy required him to shave it. Because of a medical condition, he could not do so without discomfort and infection. The Department refused to accommodate his condition. Kennedy sued, alleging 28 counts, including disability discrimination, arguing that his condition was a “disability” as defined by the Americans With Disabilities Amendments Act of 2008. The district court dismissed eight counts resting on that definition. Kennedy appealed that order on an interlocutory basis under 28 U.S.C. 1292(b), which provides an appellate court with jurisdiction to review an interlocutory order “if application is made to it within ten days after the entry of the order.” Kennedy filed a notice of appeal in the district court two days after the court denied reconsideration but waited several weeks before filing his application in the D.C. Circuit. The Circuit Court dismissed, rejecting Kennedy’s argument that the notice of appeal and the order denying reconsideration, both of which were transmitted to the Circuit Court within the statutory period, served the same purpose as an application. Even assuming the “functional equivalent” of an application satisfies section 1292(b) and Rule 5 of the Federal Rules of Appellate Procedure, the notice and order here did not meet that description. View "Kennedy v. Bowser" on Justia Law