author: GRUENDER, Circuit Judge.

text:
    Curtis IGO, Plaintiff-Appellant v. Carolyn W. COLVIN, Acting Commissioner, Social Security Administration, Defendant-Appellee
    No. 16-1232
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 22, 2016
    Filed: October 13, 2016

      Counsel who presented argument on behalf of the appellant was Mary K. Hoefer, of Iowa City, IA. The following attorney(s) appeared on the appellant brief; Mary K. Hoefer, of Iowa City, IA.
    Counsel who presented argument on behalf of the appellee was James D. Sides, Special Assistant U.S. Attorney of Dallas, TX. In addition to Mr. Sides, the following attorney(s) appeared on the appellee brief; Kevin E. Vanderschel, Acting U.S. Attorney, Mary E. Luxa, AUSA, and Michael McGaughran, Regional Chief Counsel, Region VI—all of Dallas, TX.
    Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
   GRUENDER, Circuit Judge.

Curtis Igo appeals the decision of the district court affirming the administrative law judge’s (“ALJ”) denial of his application for disability insurance benefits under Title II of the Social Security Act. See 42 U.S.C. §§ 416(i), 423. Because the decision of the ALJ is supported by substantial evidence on the record as a whole, we affirm.

I. Background

Igo claims that he is disabled as a result of osteoarthritis and degenerative joint disease of the hips, degenerative disc disease of the lumbar and cervical spines, sensory and motor neuropathies, chronic shoulder pain and osteoarthritis, and carpal tunnel syndrome. Igo has an associate’s degree in digital electronics and worked steadily throughout his life until 2010. In December 2010, he began working part-time as a receptionist at a senior center. On April 18, 2013, Igo filed his claim for disability insurance benefits, alleging disability since September 1, 2009. Igo’s claim was denied initially, upon reconsideration, and after a hearing before the ALJ.

The ALJ evaluated Igo’s disability claim according to the five-step sequential evaluation process prescribed by the Social Security regulations. See Goff v. Barnhart, 421 F.3d 785, 789-90 (8th Cir. 2005); 20 C.F.R. § 404.1520(a)-(f). At the first step of the analysis, the ALJ examines the claimant’s work activity. If the claimant is performing “substantial gainful activity,” then he is not disabled within the meaning of the Social Security Act. 20 C.F.R. § 404.1520(b). Based on Igo’s monthly earnings, the ALJ concluded that Igo had not performed substantial gainful activity since his alleged onset date of September 1,2009, At the second step, the ALJ determines whether the claimant has a severe impairment that “significantly limits [the claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). The ALJ found that Igo had multiple severe impairments: degenerative disc disease of the lumbar and cervical spines, osteoarthritis and degenerative joint disease of the hips, carpal tunnel syndrome, and sensory neuropathy. The ALJ found that Igo’s mental impairments were nonsevere.

At the third step, the ALJ determines based on the medical evidence whether the severe impairments meet or equal the criteria of a “listed impairment,” which is presumed to be disabling. 20 C.F.R. § 404.1520(d). The ALJ concluded that Igo did not have an impairment or combination of impairments that met or equaled the criteria of a listed impairment. The ALJ did not specify which of the listed impairments he considered.

At the fourth step, the ALJ assesses the claimant’s residual functional capacity (“RFC”) and considers whether the claimant can do his past relevant work based on his RFC. See 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545 (defining RFC as “the most [a claimant] can still do despite” his “physical or mental limitations”). After a lengthy recitation of the testimony and medical evidence that he considered, the ALJ concluded that Igo retained the RFC to perform sedentary work. See 20 C.F.R. § 404.1567(a) (“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.”). Based on the RFC, the ALJ found that Igo was able to perform his past relevant work as a receptionist and, therefore, was not disabled under the Social Security Act. Thus, the ALJ did not reach the fifth step of the analysis.

The Social Security Appeals Council denied Igo’s request for review, making the ALJ’s decision the final decision of the Commissioner of the Social Security Administration (“Commissioner”). Igo then sought review in the district court under 42 U.S.C. § 405(g). The district court affirmed the decision of the Commissioner. Igo now appeals, arguing that (1) the ALJ should have found that Igo meets or equals the criteria of Listing 1.02A, which is the listed impairment governing major dysfunction of a joint, and (2) the ALJ erred in assessing Igo’s RFC.

II. Discussion

We review de novo the district court’s decision affirming the ALJ’s denial of benefits. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). In reviewing the ALJ’s decision, we examine whether it is supported by substantial evidence on the record as a whole and whether the ALJ made any legal errors. Id. “Substantial evidence is less than a preponderance of the evidence” and is “ ‘such relevant evidence as a reasonable mind would find adequate to support the Commissioner’s conclusion.’ ” Id. (quoting Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001)). We may not reverse simply because we would have reached a different conclusion than the ALJ or because substantial evidence supports a contrary conclusion. Id.

Igo first argues that the ALJ erred in failing to find that Igo’s impairments met or equaled the criteria of Listing 1.02A and in failing to mention this listing in his decision, However, even assuming that the ALJ erred by failing to mention Listing 1.02A, it is not necessarily, reversible error. See Brown v. Colvin, 825 F.3d 936, 940 (8th Cir.2016) (“The ALJ’s failure to identify and analyze the appropriate listing, although error, may not by itself require reversal so long as the record otherwise supports the ALJ’s overall conclusion.”). Thus, we will uphold the ALJ’s decision so long as “substantial evidence in the record supported the ALJ’s determination” that Igo’s impairments did not meet or equal the criteria of any listed impairment, including Listing 1.02A. See Boettcher v. Astrue, 652 F.3d 860, 864 (8th Cir. 2011).

“For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria.” Jones v. Astrue, 619 F.3d 963, 969 (8th Cir. 2010) (internal quotations and citations omitted). Listing 1.02 concerns the major dysfunction of a joint, which is characterized by: gross anatomical deformity; chronic joint pain and stiffness; and either joint space narrowing, bony destruction, or ankylosis shown by medically acceptable imaging. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.02. Listing 1.02A further requires the claimant to show that the impairment at issue involves at least “one major peripheral weight-bearing joint (i.e., hip, knee, or ankle)” and results in an “inability to ambulate effectively.” Id. at § 1.02A. In this case, substantial evidence supports the conclusion that Igo did not suffer from either a “gross anatomical deformity” or an “inability to ambulate effectively.”

Because the regulations do not define “gross anatomical deformity,” we must give the term its “ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). The common medical definition of “gross” refers to “coarse • or large” and “visible to the naked eye without the use of magnification.” Dorland’s Illustrated Medical Dictionary 819 (31st ed. 2007). Listing 1.02A also provides examples of a gross anatomical deformity: subluxation, contracture, bony or fibrous ankyloses, and instability. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.02A. Igo concedes that he did not have subluxation, contracture,. or bony or fibrous ankyloses, but he contends that he satisfies the listing because he has instability. However, any joint instability he may have had does not qualify as= “gross.” The ALJ considered evidence regarding the nature of the deformity and noted that X-rays revealed severe bilateral hip degenerative changes and joint space narrowing. Because Igo’s impairments were discovered through ra-diographic studies and were not obvious to the naked eye, there is at least substantial evidence supporting the conclusion that Igo did not suffer from a gross anatomical deformity.

An “inability to ambulate effectively” means that the impairment “interferes very seriously with [his] ability to independently initiate, sustain, or complete activities.” Id. at § 1.00(B)(2)(b). As the ALJ noted, Igo’s own testimony revealed that “on a typical day, he showered, took the bus to training, did clerical work, rode the bus home, and made dinner.” As late as May 2014, Igo “was able to ambulate and climb stairs with modified independence using a cane, and he was independent with most activities of daily living.” Therefore, substantial evidence supports the conclusion that Igo did not suffer from an inability to ambulate effectively.

Substantial evidence also supports the conclusion that Igo did not have a combination of impairments that medically equaled Listing 1.02A. A claimant can establish equivalency if the claimant has “a combination of impairments, no one of which meets a listing,” and the findings related to that combination “are at least of equal medical significance to those of a listed impairment.” 20 C.F.R. § 404.1526(b)(3). “To establish equivalency, a claimant ‘must present medical findings equal in severity to all the criteria for the one most similarly listed impairment.’ ” Carlson v. Astrue, 604 F.3d 589, 594 (8th Cir. 2010) (quoting Sullivan v. Zebley, 493 U.S. 521, 531, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990)). Igo points to no evidence, other than the x-ray results of his hips, that shows a combination of impairments equal in severity to the criterion of gross anatomical deformity. Igo argues that his multitude of spinal maladies caused limitations in his range of motion which, when combined with his hip impairment, rendered him unable to ambulate effectively. However, this claim is undermined by the evidence regarding Igo’s daily activities.

Igo also contends that the ALJ erred in failing to consider whether Igo’s pain helped him equal Listing 1.02A. However, the ALJ expressly discussed Igo’s pain complaints during his discussion of Igo’s RFC. Nevertheless, the ALJ found that the medical evidence did not support a finding that Igo suffered a disabling condition. Therefore, the ALJ did not err in concluding that Igo did not meet or equal any listed impairment.

Second, Igo argues that the ALJ erred in assessing Igo’s RFC. The ALJ’s RFC assessment must be based on “all the relevant evidence in [the] case record.” 20 C.F.R. § 404.1545(a). Even “non-severe” impairments must be considered in the RFC. Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008). In evaluating the ALJ’s RFC assessment, “we consider all of the evidence that was before the ALJ, but we do not re-weigh the evidence, and we defer to the ALJ’s determinations regarding the credibility of witnesses so long as such determinations are supported by good reasons and substantial evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005).

Igo contends that the ALJ failed to consider four pain-related limitations: a need to alternate positions, an inability to concentrate, restrictions in keyboarding, and restrictions in reaching. However, the ALJ expressly considered all four of these limitations and provided good reasons for discounting them. The ALJ acknowledged Igo’s claim that “he had to change positions” every five minutes, but the ALJ found this “very unlikely” because “the medical notes do not seem to ever mention that” and it “is contradicted by his apparent success in part time work.” The ALJ acknowledged Igo’s claim that his neck pain limits “raising his arms,” but the ALJ observed that “his cervical alignment is maintained” and “[h]e has full strength in all extremities,” which is “not consistent with his alleged arm restrictions.” The ALJ recognized Igo’s supervisor’s claim that he suffered “problems with concentration,” but the ALJ discounted this claim because “lay opinions based upon casual observation” are “given little weight.” Although the ALJ did not address keyboard limitations, that is likely because the ALJ recognized that Igo’s own treating physician admitted that he “could do keyboarding.” Because the ALJ expressly considered all of the limitations that Igo cites, we conclude that the ALJ did not err.

Igo further contends that the ALJ erred in failing to properly evaluate the opinions of Igo’s work supervisor, Kristin Kronaray. As Igo’s employer, Kromray is considered a “non-medical source[],” 20 C.F.R. § 404.1513(d)(4), who has not “seen the claimant in his or her professional capacity,” SSR 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006). Regarding evidence from such sources, the ALJ should “consider such factors as the nature and extent of the relationship, whether the evidence is consistent with other evidence, and any other factors that tend to support or refute the evidence.” Id. The ALJ is not required to explain the weight given to opinions from “other sources” unless they include “acceptable medical sources” or “‘non-medical sources’ who have seen the claimant in their professional capacity.” Id. Here, the ALJ concluded that Kromray’s opinion “lack[ed] substantial support from objective findings in the record” for the same reasons that Igo’s own allegations lacked substantial support. Thus, the same evidence that the ALJ cited in finding Igo’s complaints not fully supported likewise serves to discount Kromray’s opinion. Because the ALJ is not required to give substantial weight to Kromray’s opinion or to give a more detailed explanation for discounting it, the ALJ did not err in his evaluation of her opinion.

Igo also contends that the ALJ improperly discounted the opinion of Igo’s treating physician, Dr. Luke Gabe, M.D., that Igo was disabled. “A treating physician’s opinion should not ordinarily be disregarded and is entitled to substantial weight.” Cunningham v. Apfel, 222 F.3d 496, 502 (8th Cir. 2000). However, “an ALJ may discount or even disregard the opinion of a treating physician where other medical assessments are supported by better or more thorough medical evidence.” Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (quoting Goff, 421 F.3d at 790). Here, the ALJ concluded that Dr. Gabe’s opinion “contrasts sharply with the other evidence of record, and is without substantial support from the other evidence of record.” The ALJ noted that Igo’s medical reports revealed, among other things, that he had normal 5/5 motor strength in all extremities, his acuity seemed normal, his reflexes and fine fingering were normal, and he reported feeling fine. Therefore, good reasons and substantial evidence on the record as a whole support the ALJ’s decision to discount Dr. Gabe’s opinion.

Lastly, Igo contends that the ALJ improperly analyzed Igo’s credibility. However, “[s]ubjective complaints may be discounted if there are inconsistencies in the evidence as a whole.” Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001). “The credibility of a claimant’s subjective testimony is primarily for the ALJ to decide, not the courts.” Id. As the ALJ noted, Igo’s alleged limitations are inconsistent with his daily activities. The ALJ adequately explained this finding by pointing to Igo’s testimony and other medical evidence. Therefore, substantial evidence in the record as a whole supports the ALJ’s finding that Igo had the residual functional capacity to perform his past relevant work as a receptionist and thus was not disabled under the Social Security Act.

III. Conclusion

Because the denial of disability insurance benefits is supported by substantial evidence on the record as a whole, the judgment of the district court is affirmed.

      . The Honorable Charles R. Wolle, United States District Judge for the Southern District of Iowa.

      . Igo also contends that the ALJ erred by failing to consider a disability onset date later than the one Igo alleged in his application for benefits. Igo did not raise this argument before the district court, and we decline to consider it for the first time here. See Flynn v. Chater, 107 F.3d 617, 620 (8th Cir. 1997) ("Ordinarily, issues raised for the first time on appeal will not be considered unless the claimant can show that manifest injustice would otherwise result.”) (citations omitted).

      . Igo also claims that the ALJ erred in failing to consider evidence of Igo’s nonsevere mental impairments. However, Igo did not make this argument before the district court; Igo argued only that the ALJ erred in not classifying his mental impairments as severe. We decline to consider this argument for the first time on appeal. See Flynn, 107 F.3d at 620.

      . Igo also contends that the ALJ erred in according "very little weight” to Igo's orthopedic nurse practitioner, Catherine Stanforth. Igo did not raise this argument before the district court, and we decline to consider it on appeal. See Flynn, 107 F.3d at 620.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE: MISSOURI DEPARTMENT OF CORRECTIONS, Petitioner
    No. 16-3072
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 3, 2016
    Filed: October 13, 2016

      Chris Foster, Atty. Gen., Gregory M. Goodwin, Michael J. Spillane, Asst. Attys. Gen., Jefferson City, MO, for petitioner Mo. Dept, of Corrections.
    James W. Craig, Emily M. Washington, Roderick & Solange MacArthur Justice Center, New Orleans, LA, for respondents Richard Jordan and Ricky Chase.
    Aaron W. Sanders, Teresa Dale Pupillo, Blitz, Bardgett & Deutsch, L.C., St. Louis, MO,.for intervenor M7.

      Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.
   PER CURIAM.

The Missouri Department of Corrections (“MDOC”) has filed two petitions for writs of mandamus prohibiting the district court from enforcing discovery orders. The first order requires MDOC to produce a detailed privilege log, and the second order requires MDOC to reveal information regarding its use of pentobarbital in executions, including the identity of its anonymous supplier. The anonymous supplier has moved to intervene under the pseudonym M7 and has filed a motion for leave to file a petition of its own. For the reasons stated below, we grant both of MDOC’s petitions, and we deny as moot M7’s motion for leave to file a petition.

I. Background

Richard Jordan and Ricky Chase (“the inmates”) are Mississippi death-row inmates whom ■ Mississippi proposes to execute by the serial intravenous injection of three drugs: midazolam, vecuronium bromide, and potassium chloride. In a case presently pending in the United States District Court for the Southern District of Mississippi, these inmates are challenging this execution method as cruel and unusual punishment under the Eighth Amendment. After the court denied a motion to dismiss, the inmates served upon MDOC a third-party subpoena for documents and a Federal Rule of Civil Procedure (“FRCP”) 30(b)(6) deposition notice seeking information regarding MDOC’s use of pentobarbi-tal in lethal injections, including the identity of MDOC’s supplier of pentobarbital.

MDOC filed a motion to quash the subpoena in the United States District Court for the Western District of Missouri. In support of this motion, it submitted the affidavit of MDOC Director George Lombardi. Lombardi explained that because MDOC’s pentobarbital suppliers “require the assurance of confidentiality,” producing the information sought by the inmates would result in the state no longer being able to obtain the drug for use- in executions. In light of this risk, MDOC argued that the inmates’ subpoena represented an undue burden under FRCP 45(d)(3)(A)(iv). MDOC also raised other arguments based on sovereign immunity and the state secrets privilege.

The district court held a hearing on MDOC’s motion to quash. During the hearing, the district court questioned the reliability of Lombardi’s dire predictions, noting that there seemed to be no “effort to reach out to M7” and that “Lombardi could have said, I called up the pharmacy, I called up M7, and M7 if it’s ordered in this federal case, said they’re never, ever, ever going to sell again.” After considering MDOC’s arguments, the district court held that Lombardi’s affidavit was “insufficient to establish that Missouri’s supplier will no longer supply pentobarbital to Missouri if identified to Respondents” because Lombardi’s statement was “a bare, hearsay assertion unsupported by record evidence.” As a result, the district court rejected MDOC’s arguments, denied MDOC’s motion to quash the inmates’ subpoena, and ordered MDOC to produce the majority of information the inmates sought as well as a detailed privilege log.

MDOC then filed in this court petitions for writs of mandamus to prevent the enforcement of these orders. Along with these petitions, MDOC submitted a supplemental affidavit by Lombardi. In this affidavit, Lombardi acknowledged that “the district court questioned the sufficiency of my prior statements regarding this confidentiality.” He then declared, “To be clear, MDOC’s supplier(s) has advised that if the supplier’s identity is disclosed the supplier will no longer supply lethal chemicals to Missouri for use in executions and will not supply lethal chemicals to any other state.” Lombardi did not specify when the supplier made this statement or whether MDOC had contacted the supplier regarding this specific litigation.

Thus, in our original opinion, we held that this affidavit remained inherently speculative. As a result, we rejected MDOC’s claims that the information sought was irrelevant to the inmates’ claims, that disclosure would result in an undue burden on MDOC, and that the subpoena violated Missouri’s sovereign immunity. Furthermore, we noted that MDOC had failed to explain why any alternative means of relief, such as a protective order, would be inadequate. Therefore, we denied MDOC’s petitions for writs of mandamus.

MDOC then filed a petition for rehearing in which it reasserted its previous arguments and added a new argument explaining why it had no adequate alternative means of relief. In addition, M7 moved to intervene and proceed anonymously. M7 submitted a declaration which confirmed the suspicions of both the district court and this court that MDOC had not contacted M7 at any point during the litigation. Instead, M7 averred that MDOC had contacted M7 only after we originally denied MDOC’s petitions. Nevertheless, M7 confirmed that, “[i]f disclosure of M7’s identity is required, M7 will not supply lethal chemicals to the state of Mississippi. In fact, M7 will no longer supply lethal chemicals at all.”

In light of this new information, we vacated the original panel opinion, granted MDOC’s petition for rehearing, invited M7 to submit evidence, and allowed the inmates to respond. M7 also filed a motion for leave to file its own petition for a writ of mandamus, arguing that disclosure would result in an undue burden on M7 and a violation of M7’s First Amendment rights.

II. Discussion

Writs of mandamus are “useful ‘safety valves’ for promptly correcting serious errors.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 111, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 883, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994)). Thus, although discovery orders are not ordinarily appealable, “mandamus may issue in extraordinary circumstances to forbid discovery of irrelevant information, whether or not it is privileged, where discovery would be oppressive and interfere with important state interests.” In re Lombardi, 741 F.3d 888, 895 (8th Cir. 2014) (en banc). To obtain a writ of mandamus, the petitioning party must satisfy two prerequisites: his entitlement to the writ must be “clear and indisputable,” and he must have “no other adequate means to attain the relief he desires.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). “[I]f the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Id. at 381, 124 S.Ct. 2576.

We first address whether MDOC’s entitlement to the writ is clear and' indisputable. On this point; MDOC makes three arguments: (1) the information sought by the inmates is not relevant to their Eighth Amendment claims, (2) the disclosure would result in an undue burden on MDOC, and (3) the subpoena violates Missouri’s sovereign immunity. Each of these arguments represents an independently sufficient ground for holding that MDOC is entitled to the writ.

First, MDOC argues that the unique circumstances of this case will render the identity of MDOC’s supplier irrelevant to the inmates’ claim. In order to succeed on their Eighth Amendment claim, the inmates must identify an “available alternative method of execution” that Mississippi could use. See Glossip v. Gross, 576 U.S. -, 135 S.Ct. 2726, 2737, 192 L.Ed.2d 761 (2015). As M7 now has confirmed, M7 will cease to provide pentobar-bital to anyone, including Mississippi, once its identity is disclosed. Therefore, according to MDOC, disclosure of M7’s identity will not help the inmates establish the existence of an available alternative method of execution.

The inmates respond that the information remains relevant because the availability of pentobarbital is “at issue in the underlying case.” The inmates distinguish this case from In re Lombardi, where we granted a writ, by arguing that the complaint in that case “failed to propose an alternative method of execution.” Indeed, in In re Lombardi, we granted a writ to MDOC because the identity of its lethal chemicals supplier was “not relevant to any claim that should survive a motion to dismiss.” In re Lombardi, 741 F.3d at 895. The inmates point out that their claim alleged an available alternative and has survived a motion to dismiss.

However, this argument does not explain how M7’s identity will remain relevant once M7 indisputably refuses to make pentobarbital available to anyone. Although the requested identity information in In re Lombardi may have been irrelevant because the claim did not allege an available alternative, we did not draw a distinction between claims that survive a motion to dismiss and those that do not. Rather, we held simply that mandamus may issue to prevent discoveiy of “irrelevant information.” Id, The inmates’ allegations alone do not establish relevancy of information that is not “of consequence in determining the action.” Fed. R. Evid. 401. Therefore, because M7 would not supply pentobarbital to Mississippi once its identity is disclosed, we conclude that M7’s identity has no relevance to the inmates’ Eighth Amendment claim.

Second, even if M7’s identity had any relevance to the inmates’ claim, M7’s declaration also establishes that the disclosure of M7’s identity will result in an undue burden on MDOC. FRCP 45(d)(3)(A)(iv) prohibits the discovery of information “where no need is shown, or compliance would be unduly burdensome, or where harm to the person from whom discovery is sought outweighs the need of the person seeking discovery of the information.” Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket Matter No. 2, 197 F.3d 922, 925 (8th Cir. 1999) (quoting Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1323 (Fed. Cir. 1990)). A state has an interest in “exercising its sovereign power to enforce the criminal law.” In re Blodgett, 502 U.S. 236, 239, 112 S.Ct. 674, 116 L.Ed.2d 669 (1992). As M7’s declaration demonstrates, disclosure of M7’s identity will certainly harm this interest by preventing MDOC from acquiring pento-barbital for executions from M7. Without M7, Lombardi states that MDOC “would not be able to obtain the lethal chemicals necessary to carry out its lawful executions.” Meanwhile, the inmates have no need for M7’s identity because it has little, if any, relevance to their Eighth Amendment claim.

In response, the inmates do not address the harm posed by MDOC losing its pen-tobarbital supplier. Rather, they attempt to show that MDOC will be able to carry out death sentences even without maintaining M7’s secrecy. Specifically, they point to statements by pharmaceutical manufacturers to show-that suppliers are “not cowering in the wake of capital punishment abolitionists.” But even -if M7’s fears are unfounded, that does not change the fact that M7 has already declared a clear intention to cease supplying if M7’s identity is disclosed. Thus, we conclude that the harm to MDOC clearly outweighs the need of the inmates, and disclosure would represent an undue burden on MDOC. Because we hold that MDOC is clearly entitled to a writ on the grounds of relevancy and undue burden, we do not address MDOC’s sovereign immunity argument.

Next, we address whether MDOC has any other adequate means of relief. MDOC contends that we have previously granted a writ in similar circumstances. Indeed, in In re Lombardi, we granted a writ to prevent disclosure of the lethal chemical supplier’s identity instead of requiring a protective order. 741 F.3d at 897. MDOC also contends that the district court cannot prevent the inmates from responding to discovery requests from the Mississippi Department of Corrections (“MS-DOC”) and cannot limit further disclosure by MS-DOC.

The inmates respond that the district court can, in fact, include “a provision requiring third parties to agree to be bound by the terms of a protective order as a condition precedent to receiving documents produced under such an order.” The inmates cite protective-order clauses directed at individuals retained by lawyers or parties to provide assistance or testimony. See Karr v. Oil & Gas Transfer L.L.C., No. 1:16-CV-00053, 2016 WL 3621089, at *1 (D.N.D. June 28, 2016); Jochims v. Isuzu Motors, Ltd., 145 F.R.D. 499, 504-05 (S.D. Iowa 1992). However, even assuming that the district court can issue such an order directed at MS-DOC, the inmates fail to distinguish this case from In re Lombardi. There, we granted a writ based on Lombardi’s assertion that “it is likely that active investigation of the physician, pharmacy, and laboratory will lead to further disclosure of the identities.” 741 F.3d at 894. The inmates do not offer any assurances that they will be able to investigate the supplier any more subtly than the inmates in In re Lombardi.

Moreover, M7 has not indicated that M7 would continue to supply pentobarbital -so long as the district court issues a protective order. Rather, M7 has alleged that M7 will cease to supply pentobarbital “if disclosure of M7’s identity is required.” In light of this risk, as in In re Lombardi, we must conclude that MDOC “has no other adequate means to attain the relief [MDOC] desires.” Id. at 895.

Lastly, we address whether issuance of the writ is appropriate under the circumstances. The inmates argue that the doctrine of “unclean hands” bars MDOC’s request for mandamus if the request is designed to conceal M7’s violation of property and contract rights of others. Specifically, the inmates contend that “Akorn is the only approved manufacturer of pento-barbital” and that M7 may be “selling Akorn’s licensed product contrary to the manufacturer’s contract rights.” The only legal authority that the inmates cite is a 1945 Supreme Court case affirming the dismissal of a patent infringement action because the plaintiff acted in “bad faith relative to the matter in which he seeks relief.” Precision Instrument Mfg. Co. v. Automotive Mach. Co., 324 U.S. 806, 814, 65 S.Ct. 993, 89 L.Ed. 1381 (1945). There, it was “clear that [the plaintiff] knew and suppressed facts that, at the very least, should have been brought in some way to the attention of the Patent Office.” Id. at 818, 65 S.Ct. 993. Here, it is not “clear” that MDOC or M7 are requesting writs in bad faith. The inmates contend that MDOC may have purchased manufactured pentobarbital, but we do not find this contention sufficient to establish that MDOC has unclean hands. Therefore, we conclude that mandamus relief is appropriate.

III. Conclusion

Because MDOC is clearly entitled to the writ and has no adequate alternative means of relief and because it is appropriate to issue the writ, we grant both of MDOC’s petitions for writs of mandamus. Because this would provide the precise relief sought by M7, we deny as moot M7’s motion for leave to file a petition for a writ.

      . We grant the inmates' motion to file a portion of the district court hearing transcript under seal. However, we do not agree that the statements contained within the transcript prove that MDOC is requesting the writs in bad faith.


author: ARNOLD, Circuit Judge.

text:
    Salvador GONZALEZ-VEGA, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 15-3281
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 20, 2016
    Filed: October 14, 2016

      Matthew Lorn Hoppock, HOPPOCK LAW FIRM, LLC, Overland Park, KS, for Petitioner.
    Jeremy Michael Bylund, Karen Yolanda Drummond, Carl H. McIntyre, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration, Washington, DC, for Respondent.
    Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
   ARNOLD, Circuit Judge.

After an immigration judge denied Salvador Gonzalez-Vega’s request for administrative closure of his immigration proceedings, he asked the Board of Immigration Appeals to review the IJ’s decision and also asked the BIA to exercise its own independent authority to grant administrative closure. The BIA upheld the IJ’s decision but did not rule on Gonzalez-Vega’s second request, and he appealed. We affirm the BIA’s affirmance of the IJ’s determination, but we remand the case to the BIA to rule on his request for administrative closure.

Gonzalez-Vega is a Mexican citizen who entered the United States in 2004 without authorization. The Department of Homeland Security initiated removal proceedings in 2012, asserting that he was removable as an alien who was present in the country without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). Gonzalez-Vega conceded that he was removable.

Being ineligible for more prosaic forms of relief from removal like asylum or cancellation of removal, Gonzalez-Vega requested administrative closure from the IJ. When an IJ or the BIA grants administrative closure, the alien’s removal proceedings are temporarily removed from the IJ’s calendar or from the BIA’s docket, and no judgment on the merits is entered. Hernandez v. Holder, 606 F.3d 900, 904 (8th Cir. 2010). The case is simply on hold. The IJ and BIA use this procedural convenience to control the immigration docket. Administrative closure may be appropriate, for instance, in anticipation of an event relevant to the immigration proceedings that the parties cannot control and that may not occur soon. In re Avetisyan, 25 I. & N. Dec. 688, 692 (BIA 2012).

In support of his request, Gonzalez-Vega explained that his wife had given birth to his son in the United States in January, 2014, and that this son could sponsor a visa petition on Gonzalez-Vega’s behalf once the son turned 21. He also maintained that the son would suffer extreme hardship without Gonzalez-Vega’s paternal care and financial support; that potential future changes in law and executive policy could make his removal a lower administrative priority than the removal of other aliens; that his continued presence in the United States would allow him to support two other sons living in Mexico; that he has strong ties to the community; that Mexico is too dangerous to live in; and that he has an inconsequential criminal record. The IJ denied Gonzalez-Vega’s request for administrative closure, emphasizing that his infant son would not turn 21 within a reasonable time, and the lack of a pending visa application made the anticipated duration of closure indefinite.

We first consider whether we have jurisdiction. We held in Hernandez that we lack jurisdiction to review the denial of a motion for administrative closure because there was no meaningful standard by which to review that decision. Gonzalez-Vega maintains that the BIA supplied the missing standard after Hernandez when it promulgated the following non-exclusive considerations that an IJ and the BIA should contemplate when confronted with an administrative-closure request: the reason administrative closure is sought, the reason administrative closure is opposed, the likelihood the other action being pursued outside of removal proceedings will succeed, the anticipated duration of the closure, the responsibility of either party in contributing to any current or anticipated delay, and the ultimate outcome of the removal proceeding once it recommences. See Avetisyan, 25 I. & N. Dec. at 696.

The government argues that we reaffirmed our holding in Hernandez that denials of motions for administrative closure are unreviewable when we decided Diallo v. Holder, 715 F.3d 714, 716 (8th Cir. 2013) over a year after the BIA decided Avetisyan, meaning that Diallo requires us to reject Gonzalez-Vega’s argument. But nothing in Diallo indicates, that we considered Avetisyan’s potential effect on Hernandez; indeed, the court never even mentions Avetisyan nor did the parties raise the point. “[W]e are generally not bound by a prior panel’s implicit resolution of an issue that was neither raised by the parties nor discussed by the panel.” Streu v. Dormire, 557 F.3d 960, 964 (8th Cir. 2009).

We agree with Gonzalez-Vega that the BIA in Avetisyan supplied a useable standard for reviewing denials of motions for administrative closure. Balancing considerations is a common, workaday judicial function, even if in a given, base the balancing can be difficult. We therefore join the other circuits- that have held that circuit courts have jurisdiction to review denials of motions for ■ administrative closure, assuming, of course, that other judicial prerequisites (like finality) are satisfied. See Duruji v. Lynch, 630 Fed.Appx. 589, 592 (6th Cir. 2015) (unpublished); Santos-Amaya v. Holder, 544 Fed.Appx. 209, 209 (4th Cir. 2013) (unpublished per curiam).

We review the denial of a motion for administrative closure for abuse of discretion. See Santos-Amaya, 544 Fed. Áppx. 209. The BIA abuses its discretion when it makes a decision “without rational explanation, departs from established policies, invidiously discriminates against a particular race or group, or where the agency fails to consider all factors presented by the alien or distorts important aspects of the claim.” Habchy v. Filip, 552 F.3d 911, 913 (8th Cir. 2009). The BIA must consider the issues raised and decide in terms sufficient to allow us “to perceive that it has heard and■ thought and not merely reacted.” Omondi v. Holder, 674 F.3d 793, 800 (8th Cir. 2012).

Since the BIA essentially adopted the IJ’s reasoning on this point, we review the IJ’s decision- See Garcia-Gonzalez v. Holder, 737 F.3d 498, 500 (8th Cir. 2013). We discern no abuse of discretion here. The IJ explained that the Aveti-syan considerations govern and proceeded to hold that the two-decade closure period weighed heavily against closure, and we agree. The possibility of a successful visa petition was too remote: No application was pending, nor could one be for. almost 21 years. That the IJ weighed some considerations, like the anticipated duration of the closure, more heavily than Gonzalez-Vega would prefer does not mean that the IJ abused its discretion. Nor does an IJ have to recite the considerations mechanically when applying them to the facts. We require only that it be clear from the record that the IJ had the appropriate considerations in mind and committed no clear error of judgment in weighing them. We are convinced that the IJ had the Avetisyan considerations firmly in mind here and committed no clear error of judgment in weighing them: She recited each of them and referred to Avetisyan several times in her analysis. We also conclude that the IJ did not abuse its discretion by being unmoved by Gonzalez-Vega’s arguments in favor of administrative closure, so we affirm on this point.

Gonzalez-Vega also argues that the BIA abused its discretion by failing to address his request that it exercise its independent authority to grant administrative closure. Although the BIA need not write an exegesis on every contention a movant advances, it. must give an explanation specific enough that we can discern and evaluate its reasoning. Omondi, 674 F.3d at 800. Our- reading of the BIAs opinion reveals that it focuses only on the IJ’s decision: Nowhere does the BIA allude to Gonzalez-Vega’s request that it exercise its independent authority. The government maintains that the BIA implicitly rejected the request for administrative closure because it considered an argument about imminent immigration reform that Gonzalez-Vega did not advance before the IJ. Gonzalez-Vega correctly points out, however, that he made this argument to the IJ and that he broached the subject to the BIA to support his contention that the IJ erred. So it is unclear to us whether the BIA heard and thought about Gonzalez-Vega’s alternative request. We therefore remand the matter to the BIA to consider whether Gonzalez-Vega’s request “warrants a favorable exercise of the BIA’s discretion.” See Clifton v. Holder, 598 F.3d 486, 494 (8th Cir. 2010).

Affirmed in part and remanded in part.


author: KELLY, Circuit Judge. COLLOTON, Circuit Judge,

text:
    Roberta KOWITZ, Plaintiff-Appellant, v. TRINITY HEALTH; Douglas Reinertson; Mark Waldera, Defendants-Appellees.
    No. 15-1584
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 16, 2016
    Filed: October 17, 2016

      Counsel who represented the appellant was Mark V. Larson, of Minot, ND. Also appearing on appellant’s brief was Lori Broker of Phoenixville, PA.
    Counsel who represented the appellees was Sarah Andrews Herman, of Fargo, ND. Also appearing on appellees’ brief Kevin Ha of Minneapolis, MN.
    Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
   KELLY, Circuit Judge.

Roberta Kowitz appeals the district court’s adverse grant of summary judgment on her claims that her former employer, Trinity Health, and former supervisors, Douglas Reinertson and Mark Waldera, violated her rights under the Americans with Disabilities Act (ADA) and the North Dakota Human Rights Act. The district court concluded that Kowitz failed to show she was capable of performing the essential functions of her position, and that Trinity did not have a duty to reassign Kowitz to an alternate position. Because we conclude that Kowitz produced evidence that she could have performed the essential functions of her position with reasonable accommodation, we reverse.

I. Background

Kowitz began working for Trinity Health in 2007 as a respiratory therapist in the cardiopulmonary department. She later assumed additional duties as a lead technician in the blood gas laboratory. Her direct supervisor was Reinertson, and Rei-nertson’s direct supervisor was Waldera.

Kowitz had cervical spinal stenosis, a degenerative disease of the spine. On July 21, 2010, Kowitz requested leave under the Family and Medical Leave Act (FMLA) to have corrective neck surgery. Trinity approved her request to take leave from July 27, 2010 through September 10, 2010. On September 7, 2010, Kowitz’s doctor determined she could not return to work until October 18, 2010. Kowitz requested an extension of her leave time until October 19, 2010. Trinity granted this request. After the extension, Kowitz had used all of the leave time available to her under the FMLA.

When she returned to work, Kowitz provided Trinity with a Return to Work Form, in which her doctor outlined her physical restrictions. The form stated that up until November 29, 2010, Kowitz would be restricted to working eight-hour shifts, and lifting, carrying, pulling, or pushing no more than ten pounds, among other restrictions. Kowitz also verbally informed Reinertson that she would be unable to work twelve-hour shifts until approved to do so by her doctor. Trinity assigned Kow-itz to eight-hour shifts, rather than twelve-hour shifts, though Reinertson informed her that Trinity would not be able to accommodate the eight-hour shifts indefinitely.

On November 19, 2010, Reinertson posted a memorandum in the cardiopulmonary department’s communication book directing department employees to provide updated copies of their basic life support certifications by November 26, 2010. The memorandum stated, “If you are not up to date on your BLS you will need to submit a letter indicating why you are not up to date and the date you are scheduled to take the BLS class.” Several respiratory therapists, including Kowitz, did not have up-to-date basic life support certifications.

“Basic life support” refers to cardiopulmonary resuscitation, or CPR. Renewing a basic life support certification required taking a written examination and performing a physical demonstration of CPR. After Reinertson posted the memorandum, Kowitz took and passed the written examination. On November 30, 2010, Kowitz submitted a letter to Reinertson informing him that she would be unable to take the physical portion of the examination until cleared to do so by her doctor. Kowitz copied Waldera on the letter, as well as Trinity’s human resources department. The letter stated, in part,

This is to inform you that I will not be able to do the physical part of BLS until I have clearance from Dr[.] Transfeldt. I have an appointment with him on December 2.1 will inform you via fax hopefully that day.
Thank you for understanding .my condition. It has been very stressful for me these past months. I am trying my best but at the same time I want to protect the surgery I had on my neck. I do go home after a[n] 8 hour shift and I have a lot of tightness in my neck and times when we are very busy, I. have pain.

On December 2, 2010, Kowitz’s doctor determined that she would need to complete at least four additional months of physical therapy before she would be able to complete the physical portion, of the basic life support certification. Immediately after the appointment, Kowitz left Rei-nertson a voicemail message relaying her doctor’s instructions. On December 3, 2010, Reinertson and Waldera informed Kowitz that her employment was terminated because she was unable to perform basic life support.

Kowitz. brought suit against Trinity, Rei-nertson, and Waldera, alleging, among other things, that she was unlawfully terminated . on the basis of her disability. The district court granted summary judgment in favor of the defendants, concluding that Kowitz was not qualified to perform the essential functions of either of her positions .because she was not certified to provide basic life support. The district court additionally concluded that because Kowitz never requested a transfer to another position within Trinity, Trinity was under no obligation to reassign her to a position that did not require basic life support certification.

II. Discussion

The ADA and the North Dakota Human Rights Act prohibit employers from discriminating against employees on the basis of disability.' 42 U.S.C. § 12112(a); N.D. Cent. Code § 14-02.4-03(1). Because North Dakota courts look to case law interpreting the ADA for guidance in interpreting the state statute, see Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225, 227 (N.D. 1993), we will consider the claims together.

To establish a prima facie case of discrimination on the basis of a disability, a plaintiff must show that she “(1) has a ‘disability’ within the meaning of the ADA, (2) is a ‘qualified individual’ under the ADÁ, and (3) ‘suffered an adverse employment action as a result of the disability.’ ” Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 711 (8th Cir. 2003) (quoting Duty v. Norton-Acoa Proppants, 293 F.3d 481, 490 (8th Cir. 2002)). For an employee to be a qualified individual under the ADA, she must “(1) possess the requisite skill, education, experience, and training for h[er] position, and (2) be able to perform the essential job functions, with or without reasonable accommodation.” Id. at 712 (quoting Heaser v. Toro Co., 247 F.3d 826, 830 (8th Cir. 2001)).

Trinity argues that Kowitz was not a qualified individual under the ADA,, because performing basic life support was an essential function of both of her positions. Essential functions “are the fundamental duties of the job, but not its marginal functions.” Kallail v. Alliant Energy Corp. Servs., Inc., 691 F.3d 925, 930 (8th Cir. 2012). In determining whether a job function is essential, we consider several factors, including “what functions the employer thinks are essential, written job descriptions, how much time an employee spends on the job performing the function, the consequences of not having the employee perform the function, and whether other current employees in similar jobs perform the function.” Scruggs v. Pulaski Cty., 817 F.3d 1087, 1092 (8th Cir. 2016).

The job description for Kowitz’s position as lead technician in the blood gas laboratory states that basic life support certification is required. For the respiratory therapist position, Kowitz produced one job description that states basic life support certification is “preferred, but not required.” The defendants, on the other hand, submitted other versions of the job description, which state that basic life support certification is required, or would be required within 30 days of hiring. Additionally, Reinertson and Waldera both testified that certification was necessary for respiratory therapists to ensure the safety of their critically ill patients.

There is some dispute as to how often respiratory therapists might be required to perform chest compressions. Another respiratory therapist testified that she was required to perform basic life support independently up to five times per year, and as part of a team up to ten times per year. She testified that, depending on how many employees were assisting in administering basic life support, respiratory therapists could be required to perform chest compressions and airway management. Waldera, on the other hand, testified that he was unaware of any respiratory therapist performing chest compressions during his twelve years at Trinity. Nonetheless, Waldera testified that regardless of how frequently it was required, respiratory therapists were expected to perform basic life support independently when necessary to save a patient’s life. Finally, even though several respiratory therapists’ certifications had lapsed at the time Reinertson posted his memorandum, every respiratory therapist except for Kowitz obtained an updated certification by the November 26, 2010 deadline. Given this evidence, there was no genuine issue of material fact as to whether the certification was an essential function of both of Kowitz’s positions.

The question, then, is whether Kowitz could have performed this essential function with an accommodation, and if so, whether Trinity failed to reasonably accommodate her. According to Kowitz, Trinity should have allowed her additional time to complete her basic life support certification, or reassigned her to another position that did not require the certification. The district court rejected this argument, concluding that Kowitz produced no evidence that she ever requested an accommodation for her inability to perform basic life support.

When a disabled employee requests an accommodation for her disability, the employer must engage in an interactive process with the employee to determine whether a reasonable accommodation is possible. E.E.O.C. v. Convergys Customer Mgmt. Grp., Inc,, 491 F.3d 790, 795 (8th Cir. 2007). The employee is responsible for initiating the process “by making [her] employer aware of the need for an accommodation.” Id The employee “must provide relevant details of [her] disability and, if not obvious, the reason that [her] disability requires an accommodation” so that the employer can identify and propose potential options, but she need not use technical language to make the request or suggest what accommodation might be appropriate. Id. This is in keeping with the logic of the interactive process, which is intended to be “informal and flexible”—the employee is responsible for providing relevant information about her condition and needs, and once aware of those needs the employer is responsible for considering how best to accommodate them. Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1045 (8th Cir. 2005); see Convergys, 491 F.3d at 795.

Kowitz has presented sufficient evidence to raise a genuine issue of material fact as to whether she requested an accommodation. Upon being told that her basic life support certification was due, Kowitz notified her supervisor in writing that she was unable to complete the physical component of the certification until she had been cleared to do so by her doctor. At this point, Trinity was already aware of Kowitz’s disability based on her prior FMLA leave for neck surgery and the information provided in her Return to Work Form. Kowitz advised her supervisor that she had an appointment scheduled with her doctor in a few days, and would inform him of her clearance that day. Kow-itz also indicated that she was still experiencing neck pain, and thanked her supervisor for understanding her condition. After her doctor’s appointment, Kowitz called her supervisor'and left a voicemail notifying him that she required four months of physical therapy before she would be able to complete the life support certification. The next day, Kowitz was terminated from her position at Trinity,' with no further discussion.

Based on these facts, a reasonable jury could conclude that Kowitz had “[made her] employer aware of the need for an accommodation.” Convergys, 491 F.3d at 795. Though Kowitz did not ask for a reasonable accommodation of her condition in so many words, viewing the facts in the light most favorable to Kowitz, her notification to her supervisor that she would not be able to obtain the required certification until she had completed physical therapy implied that an accommodation would be required until then. Though we have held that an employer’s duty to accommodate an employee is not triggered until the employee clearly requests an accommodation, in those eases the ostensible requests were significantly more ambiguous. See E.E.O.C. v. Prod. Fabricators, Inc., 763 F.3d 963, 968 (8th Cir. 2014) (the employee said that he was “fine,” never requested an accommodation, and did not seek evaluation for his condition until after his termination); Ballard v. Rubin, 284 F.3d 957, 962 (8th Cir. 2002) (the employee specifically stated that he did not want an accommodation, while also stating that it was “appropriate” for him to consider his doctor’s recommendations); Mole v. Buckhom Rubber Prods., Inc., 165 F.3d 1212, 1216 (8th Cir. 1999) (the employee never requested an accommodation, but rather told her supervisor that she was “feeling fine” and had been approved to return to work).

By contrast, in this case there was evidence from which a jury could find that Trinity should have understood—or did understand—Kowitz’s communications to be a request for an accommodation. Trinity was aware of Kowitz’s specific condition, as well as the general nature of the limitations it placed on her. Kowitz referred to her surgery, prior leave, and ongoing pain in her written notification that she would be unable to complete'- the life support certification without medical clearance. Kowitz’s Return to Work Form, completed less than two months before her termination, stated that she could not lift, carry, pull, or push more than ten pounds. While the Return to Work Form did not explicitly say that Kowitz could not complete the physical component of basic life support certification, there is nothing in the record to show that she knew, at the time the form was completed, that she would be required to recertify by a date certain and before she was physically able to do so. Indeed, the evidence suggests that the certification requirement had not been rigorously enforced; rather, Reinert-son required an updated certification from employees only after realizing that several therapists had expired certifications. The record does show that Kowitz advised her supervisor of her inability to complete the certification requirement on November 30, and again on December 2—several days after the November 26 deadline for providing an up-to-date certification. But Kowitz’s delay is not dispositive of whether she made the request, and it is for a jury to decide how to reconcile that fact with the rest of the evidence.

An employee is required only to “provide[] the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation.” Ballard, 284 F.3d at 962 (quoting Taylor v. Phoenixville Sch. Dist., 174 F.3d 142 (3d Cir.), vacated on other grounds, 184 F.3d 296 (3d Cir. 1999)). This determination necessarily accounts for the employer’s knowledge of the disability and the employee’s prior communications about the disability, and is not limited to the precise words spoken by the employee at the time of the request. When Kowitz advised her supervisor that she would be unable to complete the physical requirements of her basic life support certification until she had done four months of physical therapy, she was not required to “formally invoke the magic words ‘reasonable accommodation’” to transform that notification into a request for accommodation. Id. (quoting Taylor, 174 F.3d at 158). Viewed in context, Kowitz’s written notification that she would be unable to complete the basic life support certification without medical clearance, and her statement that she required four months of physical therapy before completing the certification, could readily have been understood to constitute a request for a reasonable accommodation of her condition.

III. Conclusion

Because there remains a genuine issue of material fact as to whether Kowitz made a request for an accommodation sufficient to trigger Trinity’s duty to engage in the interactive process of identifying a reasonable accommodation, the judgment of the district court is reversed and remanded for further proceedings.

COLLOTON, Circuit Judge,

dissenting.

The court’s opinion is significant doctrinally, because it collapses two elements of a disability discrimination claim. The decision effectively eliminates what this court consistently has called a “predicate requirement”—ie., that an employee seeking a reasonable accommodation from her employer must clearly request accommodation before the employer has an obligation to engage in the “interactive process” contemplated by the Americans with Disabilities Act. Because Roberta Kowitz never requested an accommodation for the disability that made her unable to perform an essential function of her job, I would affirm the "judgment of the district court.

Kowitz could not perform basic life support, which was an essential function of her job as a respiratory therapist and lead technician in the blood gas lab at Trinity Health. Trinity required that all employees provide a basic life support certification by November 26, 2010, and Kowitz failed to do so. After Kowitz informed her supervisor on December 2 that she could not complete her certification until she had completed at least four months of physical therapy, Trinity terminated her employment.

Kowitz now argues that Trinity failed to make a reasonable accommodation of her disability. See 42 U.S.C. § 12112(b)(5)(A). Kowitz asserts that Trinity should have given her a longer grace period within which to obtain her basic life support certification or reassigned her to an open position that did not require performance of life support.

An employee alleging that an employer failed to make a reasonable accommodation must prove, among other things, two separate elements: (1) that the employer knew about her disability, and (2) that she requested an accommodation or assistance for her disability. Schaffhauser v. United Parcel Sem, Inc., 794 F.3d 899, 906 (8th Cir. 2015). A request for accommodation is a “predicate requirement” to initiate the interactive process. EEOC v. Prod. Fabricators, Inc., 768 F.3d 963, 971 (8th Cir. 2014); Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1045 (8th Cir. 2005); Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir. 2002); see also Walz v. Ameriprise Fin., Inc., 779 F.3d 842, 847 (8th Cir. 2015). Quoting the EEOC’s interpretive guidelines, we have explained: “Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation.” Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 951 (8th Cir. 1999) (emphasis added) (quoting 29 C.F.R. § 1630, App. § 1630.9).

This is not an onerous burden on the employee. There is no requirement to use magic words like “reasonable accommodation,” but the employee’s notice must “make it clear to the employer that the employee wants assistance for his or her disability.” Id. at 952 n.5 (emphasis added); accord Ballard, 284 F.3d at 962 (explaining that notice to the employer “must make clear that the employee wants assistance for his or her disability”) (emphasis added). We affirmed a summary judgment in Product Fabricators because the evidence did “not indicate that [the employee] made a specific request for an accommodation.” 763 F.3d at 971 (emphasis added). In the court’s favored precedent, EEOC v. Convergys Customer Management Group, Inc., 491 F.3d 790 (8th Cir. 2007), the employee did not merely notify his employer of an inability to wprk due to disability and then claim that the employer should have inferred a request for assistance; he “testified at trial that he requested an accommodation because of limitations created by his wheelchair, thus meeting his initial burden.” Id. at 795. The plaintiff in Ballard generated an issue of fact on the request element by asking the employer to account for his doctor’s recommendations of curtailing travel and to take his physical limitations into account before requiring out-of-town travel. 284 F.3d at 962.

It is undisputed that Kowitz never requested an accommodation for her inability to perform basic life support. She merely informed supervisor Reinertson that she was unable to attempt to obtain a basic life support certification until she had completed four months of physical therapy. That notification of Kowitz’s disability does not create a genuine issue of fact concerning whether Kowitz requested an accommodation. As the district court explained, “Kow-itz admits she never made a request or even mentioned to Waldera, Reinertson, or the Trinity Health HR Department she was interested in transferring to a vacant position within Trinity Health.” R. Doc. 75, at 14. And “Kowitz never applied for any positions with Trinity Health despite knowing job vacancies were posted on Trinity’s website which she was familiar with and had access to.” Id.

In rejecting the district court’s judgment, the court conflates the employer’s knowledge of an employee’s disability with the requirement that an employee must make a clear request for accommodation. Any employee who notifies an employer that she cannot work because of a disability can be said in some sense to have made her employer “aware of the need for an accommodation.” Ante, at 747. But we have never said that merely notifying the employer of a disability is an “implied” request, id. sufficient to trigger an employer’s duty to engage in the interactive process. We have said precisely the opposite: an employee must make it clear that she wants assistance or accommodation. Even where an employer previously has made reasonable accommodation, an employee who wants additional assistance cannot “expect the employer to read her mind and know she secretly wanted a particular accommodation and then sue the employer for not providing it.” Mole v. Buckhom Rubber Prods., Inc., 165 F.3d 1212, 1218 (8th Cir. 1999) (internal quotation and brackets omitted). It is not the court’s place to impose a rule based on how a beneficent employer would treat an employee who notifies the employer of a disability, even if some employers might well take it upon themselves to initiate an interactive process without a request from the employee.

People should be entitled to clarity in the law. Employers and employees rely on predictability to make efficient decisions and to avoid costly and burdensome litigation. There is no practical difference between asserting that this record creates a genuine issue of fact for trial, ante, at 748 n.l, and collapsing what heretofore have been two separate elements of a disability discrimination claim. By eliminating the requirement of a clear request for accommodation that is distinct from notice of disability, the court generates regrettable uncertainty. I would affirm the judgment.

      . The dissent asserts that this conclusion collapses the distinction between the requirement that the employer know of the employee’s disability, and the requirement that the employee request a reasonable accommodation. But our holding is not so broad: We conclude merely that a reasonable jury could find that Trinity understood Kowitz's communications to be a request for accommodation, and not simply an additional notification of her disability.


author: PER CURIAM:

text:
    ANIMAL LEGAL DEFENSE FUND, Plaintiff-Appellant, v. U.S. FOOD & DRUG ADMINISTRATION, Defendant-Appellee.
    No. 13-17131
    United States Court of Appeals, Ninth Circuit.
    Filed September 30, 2016
    Monte M.F. Cooper, Derek F. Knerr, and Scott Lindlaw, Orrick, Herrington & Sutcliffe LLP, Menlo Park, California, for Plaintiff-Appellant.
    Lindsey Powell and Michael S. Raab, Attorneys, Appellate Staff, Civil Division, Department of Justice, Washington, D.C.; for Defendant-Appellee.
    Caitlin Zittkowski and Cristina R. Stella, San Francisco, California, as and for Ami-cus Curiae Center for Food Safety.
    Before: SUSAN P. GRABER, KIM McLANE WARDLAW, and MARY H. MURGUIA, Circuit Judges.
   OPINION

PER CURIAM:

In Animal Legal Defense Fund v. FDA, No. 13-17131, 836 F.3d 987, 2016 WL 4578362 (9th Cir. Sept. 2, 2016) (en banc) (per curiam), the en banc court overruled our earlier precedents on the applicable standard of review in Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, cases decided on summary judgment. The court held that the usual summary judgment standard applies, so we must review the district court’s decision de novo. Accordingly, on summary judgment, “if there are genuine issues of material fact in a FOIA case, the district court should proceed to a bench trial or adversary hearing.” Animal Legal Def. Fund, 836 F.3d at 990, 2016 WL 4578362, at *2.

As we noted in our earlier opinion, Animal Legal Defense Fund v. FDA, 819 F.3d 1102, 1108-09 (9th Cir. 2016), the parties submitted competing declarations concerning the potential competitive effect of releasing egg-production information. In a per curiam concurrence, we also observed that, “if ordinary principles applied, summary judgment would not be appropriate because the record contains a disputed issue of material fact.” Id. at 1112. Following the en banc court’s decision, those ordinary principles now control this case. Applying the usual summary judgment standard, we conclude that there is a genuine issue of material fact in this case and, therefore, we must reverse and remand to the district court for further proceedings.

REVERSED and REMANDED.