Adair v City of Muskogee, Oklahoma

Adair appealed summary Judgment for City in his Americans with disabilities Act and retaliation case. The panel affirmed. It first held the parties and the district court applied the wrong law as the Act was amended in 2008 to eliminate any requirement that someone regarded as disabled prove anything beyond a physical or mental impairment which is not transitory or minor and that the employer was aware of and perceived the impairment at the time of the alleged discrimination. However, the panel held that this error did not provide Adair relief as his restrictions on lifting made him ineligible to be a firefighter as Oklahoma regulations require a firefighter to be babel to lift and carry a 200 pound adult, Adair cannot carry a 200 pound adult and his hazmat position was a firefighter position though Adair had not been called upon to fight fires for many years. The panel also held Adair offered no reasonable accommodation as eliminating an essential function is not an accommodation authorized by the Act. The panel affirmed judgment on Adair’s illegal medical exam claim under the Act as the functional capacity test was part of Adair’s workers compensation claim and was thus job related and consistent with business necessity. It also affirmed judgment on the retaliation claim as inability to do the job of firefighter was a legitimate reason for ending Adair’s employment under Oklahoma law.

United States v Bennett

The government appealed Bennett’s sentence and Bennett challenged a condition of supervised release. The panel, 2-1, reversed on the sentence and, 3-0, dismissed the challenge as not ripe. The panel held that the categorical approach applied here as there were no admissible charging documents or other approved sources to look at in determining whether Bennett’s Colorado conviction for possessing sexually explicit depictions of a minor qualified as an enhancing conviction for sentencing purposes. The majority held the Colorado conviction did trigger enhancement as the enhancing statute requires enhancement if a prior state conviction related to child pornography, relation to is a broadening term, Colorado’s statue covers all the images federal law does and some beyond federal law and recent United states supreme court precedent limiting state drug crimes which trigger deportation did not change the outcome because the immigration statute had a reference to the federal drug list while the enhancement statute does not, the immigration statute was stretched to the breaking point while the enhancement statute is not so stretched and there is no history of requiring parity of elements in the enhancement context as there is in the immigration context. The majority noted this decision was consistent with those of other circuits. The panel held Bennett’s challenge to the condition he submit to a certain test to be prudentially moot as a remand would require significant fact finding about the future, Bennett will not face the test for many years and the test may not be appropriate or even available once Bennett is released. The dissent argued the immigration precedent requires no enhancement here as the enhancement statute uses child pornography which is a defined term and incorporates only the federal definition and Congress could have included all state child pornography convictions but chose not to do so.