Lujan

Opinion by Judge CANBY, JR.; Concurrence by Judge WEINER.

Arthur Lujan contends that he has been denied access, because of Ms physical disability, to longshore jobs that he could perform. He brought this action against the Pacific Maritime Association (“PMA”) and the International Longshoremen’s and Warehouse-men’s Union and two of its locals (“the Union”), 2 claiming violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213 , California’s Fair Employment and Housing Act (“FEHA”), Cal. Gov’t.Code § 12900 et seq., and state tort law of negligent infliction of emotional distress. The district court granted summary judgment to the defendants on the ground that Lujan was judicially estopped from bringing Ms claims because he had secured disability benefits under the Social Security Act by representing that he was unable to work. We reverse that decision on the authority of Johnson v. Oregon, 141 F.3d 1361 (9th Cir.1998), wMch was handed down after the district court had ruled. We also reject the contentions of the defendants that the summary judgment may be upheld on the ground that Lujan was physically unqualified for any longshore work. We conclude that…

concurring:

While I agree with the result reached by Judge Canby, and the “no per se estoppel” principle announced in Johnson v. Oregon, 141 F.3d 1361 (9th Cir.1998), I -write separately to discuss one point.

Judge Canby concludes, based on Johnson , that Lujan’s statement in his application for Social Security disability benefits — that he was “unable to work” — is more readily construed as an assertion that he was eligible for total disability benefits, rather than as an unconditional representation that he was completely disabled for all work-related purposes. Slip op. at 589-90. However, in a Social Security disability case, one attests that he meets a statutory requirement that he has some medically determinable basis for an impairment that prevents him from engaging in any “substantial gainful activity” for a statutory twelve-month period. 42 U.S.C. 423(d)(1). Thus, I would not construe such a statement as narrowly as would Johnson . Nonetheless, I agree that a representation of inability to work for Social Security purposes is not per se inconsistent with a claim of ability to work under ADA, since ADA provides for workplace accommodation while Social Security does not.…