Jacalyn Thornton v. McClatchy Newspapers, Inc.

ORDER SUPPLEMENTING OPINION

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…

dissenting.

The majority has come a long way in this case regarding whether Ms. Thornton may establish a disability because of an impairment in her ability to perform manual tasks. In its original opinion, the majority held that she could not possibly do so, no matter how severe her impediment in keyboarding and handwriting, because she could perform a few other manual tasks. Now, after the Supreme Court’s opinion in Toyota Motor Manufacturing v. *1047 Williams, 534 U.S. 184 , 122 S.Ct. 681 , 151 L.Ed.2d 615 (2002), the majority implicitly recognizes that it was incorrect in its quantitative approach to manual tasks disability, and that the inability to communicate in writing can, if sufficiently severe, constitute a manual tasks disability regardless of the ability to carry out other daily tasks.

This reconsideration of its original premises does not, however, lead the majority to reverse the grant of summary judgment to McClatchy. Instead, the majority now seeks instead to sustain its earlier result on a much more limited ground — that Ms. Thornton’s particular impairment in writing and keyboarding was not substantial enough to constitute a disability, because, the majority…

292 F.3d 1045 Jacalyn THORNTON, Plaintiff-Appellant, v. McCLATCHY NEWSPAPERS, INC., Defendant-Appellee. No. 99-15857. United States Court of Appeals, Ninth Circuit. Filed June 11, 2002. Before KOZINSKI, HAWKINS and BERZON, Circuit Judges. ORDER SUPPLEMENTING OPINION HAWKINS, Circuit Judge. ORDER 1 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). 2 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, a 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…