Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

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Animals at Home and on Planes: The Oklahoma and DOT Views

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Col. Johnny

Hope everyone had a happy Memorial Day weekend. I have mentioned from time to time that I use a service dog in the house. But what does he look like? The above picture is the answer. Say hello to Col. Johnny, a four-year-old miniature poodle.

Today’s blog entry is about animals. I thought it would be interesting to look at recent Oklahoma legislation and then, explore a recent enforcement guidance from the Department of Transportation on Nondiscrimination on the Basis of Disability in Air Travel issued on May 23, 2018. DOT is also seeking comment on that. As usual, the blog entry is divided into categories and they are: Oklahoma legislation; my thoughts; DOT interim statement of enforcement priorities; and my thoughts on DOT’s enforcement guidance. The reader is free to focus on any or all of the categories.

I

Oklahoma Legislation

The Oklahoma legislation recently signed into law, HB 3282, and effective November 1, 2018, focuses on service animals and emotional support animals in the context of landlord and tenants. It isn’t a long piece of legislation. Its salient points are:

  1. “Assistance animal,” encompasses both what the ADA calls a service animal as well as an emotional support animal.
  2. If the person making the request has a disability or disability-related need for an assistance animal that is not readily apparent, then the landlord may request reliable supporting documentation that: 1) is necessary to verify the person meets the definition of disability under the Fair Housing Act; 2) describes the need for the accommodations; and 3) shows the relationship between the person’s disability and the need for the requested accommodation.
  3. The landlord can independently verify the authenticity of any supporting documentation.
  4. Supporting documentation acquired through purchase or exchange of funds for goods and services is presumed to be fraudulent supporting documentation.
  5. A landlord is not liable for injuries by a person’s assistance animal permitted on the landlord’s property as a reasonable accommodation to assist the person with disability.
  6. A person knowingly making a false claim of having a disability requiring the use of an assistance animal or making a claim by knowingly providing fraudulent supporting documentation in connection with such a claim, subjects themselves to procedures under the Oklahoma residential Landlord and Tenant Act, 41-132. Further, if the landlord proceeds to evict that person and prevails in the eviction, the court can award costs and fees, plus damages not to exceed $1000 from the tenant.

II

My Thoughts

  1. My concern with this legislation is ¶ 4. Presumably, whenever a physician or provider provides a note for an individual with a disability to support a service animal or an emotional support animal, one would think that there is a charge for that service. The plain language of this particular provision would make it impossible for such documentation to be obtained unless the provider did it for free. Obviously, the concern with the legislation was to stop people from buying documentation or vests from online suppliers without any individual analysis from a qualified professional being done first. However, the plain meaning of the legislation seems to go a lot further than that.
  2. Since any documentation or goods obtained through an exchange of funds is presumed fraudulent, that puts the burden of proof on the person with a disability to prove that the animal is an emotional support animal or a service animal. The plain meaning of the statute is such that a landlord can now force a person with a disability to go through legal proceedings first before they allow a service animal or an emotional support animal. Again, that could not have possibly been the intent of the legislation, but it literally suggests that. Such a reading arguably also interferes with federally protected rights, which do not contain any such requirements.
  3. I am not an Oklahoma attorney. So, be sure to consult one if you have any questions on this law.

III

Department Of Transportation’s Interim Statement of Enforcement Priorities

  1. Comments on the interim statement of enforcement priorities are due June 7, 2018, next week.
  2. DOT intends to exercise its enforcement discretion by focusing its resources on ensuring that U.S. carriers continue to accept the most commonly used service animals (dogs, cats, and miniature horses), for travel. Other kinds of animals will be enforced by DOT on a case by case basis.
  3. DOT is okay if airlines limit passenger to transporting one emotional support animal, and they are okay if airlines limit passengers to transporting a total of three service animals. So, what this means is that DOT is okay if airlines adopts a policy allowing a person to take anywhere between 1, 2, and or 3 service animals with them.
  4. With the exception of emotional support animals and psychiatric service animals, carriers may not otherwise require advance notice for passengers traveling with service animals.
  5. When deciding to accept an animal as a service animal, airlines have to determine both whether the passenger is an individual with a disability and whether the animal is a service animal.
  6. If a person’s status as an individual with a disability is unclear, i.e. not clearly visible, then the airline personnel may ask questions about the passenger’s needs for a service animal. Such a question might be, “how does your animal assist you with your disability?” A credible response mean that the passenger had given enough information to establish that he or she is a person with a disability and that the animal is a service animal. Airlines have a right to insist on the verbal assurance that the animal is a service animal in addition to any documentation.
  7. DOT will act if an airline requires that a passenger with a service animal check in at the ticket counter since passengers without a service animal do not have to do that.
  8. DOT intends to clarify what constitutes a direct threat through the rulemaking process.
  9. DOT will not pursue enforcement actions against airlines should they require proof of the animal’s vaccination, training, or behavior with respect to emotional support animal and psychiatric service animals.
  10. DOT will not take action against carriers imposing reasonable restrictions on the movement of emotional support animals in the cabin so long as the reason for the restriction is the concern for the safety of other passengers and crew. Restrictions may include requiring that the animal be placed in a pet carrier, the animal stays on the floor at the passenger’s feet, or requiring the animal to be on a leash or tether. The particular restriction should be appropriate for the animal’s size.

IV

My Thoughts on DOT Interim Enforcement Guidance

  1. To my mind, it is completely arbitrary to distinguish between service animals and psychiatric service animals. Both animals are service animals and the requirements should be the same for both. That is not the case as things stand now under the Air Carrier Access Act. It is the case under title II and title III of the final ADA implementing regulations.
  2. It will be interesting to see how direct threat comes up. A good place to start would be Chevron v. Echazabal.
  3. If through rulemaking it was decided that emotional support animals are out, Sen. Burr’s from North Carolina bill for example, a lot of people who would need an emotional support animal to fly on the plane simply will not fly and will need to take other transportation.
  4. DOT does not actually say in its enforcement guidance how to figure out whether an animal is a service animal. However, by the questions they suggest, they clearly seem to be focusing on establishing the animal as engaged in recognition and response in a way related to a person’s disability.

It’s a Plane, It’s a Bird, It’s a Bird on a Plane… What the…

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peacock
On a plane?

Airplane

What birds fly in?

A couple of weeks ago or so, a dog brought on a plane as an emotional support animal mauled a fellow passenger trying to get to his seat. Then, a New York artist tried to bring a peacock on the plane as her emotional support animal. The peacock situation went viral both in the legal blogosphere and on the Internet, including on LinkedIn. That created a lot of misperceptions about the applicable laws, what the laws require, and the reaction of airlines to that law. This blog entry will discuss all of that. As usual, it is divided into categories and they are: the Air Carrier Access Act; thoughts on Air Carrier Access Act regulations; airline reaction United and thoughts; airline reaction Delta and thoughts; what do title I of the ADA and the Fair Housing Act have to say; what about state laws and preemption; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

The Air Carrier Access Act

The situation of the dog and the peacock on the plane have absolutely zero to do with the ADA. The only applicable law is the Air Carrier Access Act and its implementing regulations. Let’s look at some of the key provisions.

  1. The Air Carrier Access Act by itself is not much of a law. As we have mentioned previously, it basically just sets forth what a disability is and leaves the rest to regulations issued by the Department of Transportation.
  2. 14 C.F.R. §382.25 prevents a carrier from requiring advanced notice that a person with a disability is taking an airplane flight.
  3. 14 C.F.R. §382.27(c)(8) allows for 48 hours advance notice for emotional support/psychiatric service animals.
  4. 14 C.F.R. §382.27(c)(9) allows for 48 hours advance notice for a service animal if a more than eight hour flight is involved.
  5. 14 C.F.R. §382.117(e) says that for emotional support or psychiatric service animals, an airline is not required to accept the animal for transportation in the cabin unless the passenger provides current documentation that is no older than one year from the date of the passenger’s scheduled initial flight on the letterhead of a licensed mental health professional stating that: the passenger has a mental or emotional disability recognized in DSM-IV; the passenger’s emotional support or psychiatric service animal is an accommodation for air travel and/or for activity at the passenger’s destination; the individual providing the assessment is a licensed mental health professional and the passenger is under his or her professional care; and the date and type of the mental health professional’s license and the State or other jurisdiction in which it was issued.
  6. 14 C.F.R. 382.117(f) says that airlines are never required, the regs actually uses the word “never,”, to accommodate certain unusual service animals such as, “snakes, other reptiles, ferrets, rodents, and spiders.” With respect to all other animals including unusual or exotic animals presented as service animals- such as miniature horses, pigs, or monkeys-, the airline has to determine whether any factors preclude their traveling in the cabin as service animals. Those factors include whether the animal is too large or heavy to be accommodated in the cabin, whether the animal poses a direct threat to the health or safety of others, whether it would cause a significant disruption of services, and whether it would be prohibited from entering a foreign country that is the flight’s destination. If there are no such factors precluding the animal from traveling in the cabin, the airline has to allow it. Finally, foreign carriers are not required to carry service animals other than dogs.

II

Thoughts on ACAA Regulations

  1. What immediately strikes me about these regulations is that the regulations equate psychiatric service animals with emotional support animals. There are also very different documentation requirements for service animals dealing with physical disabilities and for service animals dealing with mental health disabilities. At any rate, to say that emotional support animals and psychiatric service animals are equivalent is false; a point made clear by the ADA DOJ regulations. That has me wondering since the regulations make a not supportable distinction between different types of service dogs, whether this regulation is arbitrary or violates the equal protection clause as incorporated into the due process clause. If that is the case, then the question becomes what equal protection category, as discussed in this blog entry, persons with disabilities fall into with respect to this situation. Even assuming a rational basis category, could there be a rational basis for distinguishing between service dogs for physical disabilities and service dogs for mental health? I do get how a rational basis exists for emotional support animals, but not sure I follow how the distinction is rational with respect to service animals for people with MH conditions. For more analysis, check out this blog entry where I discuss whether the title II and title III DOJ service dog regulations could be subject to challenge.
  2. The Department of Transportation regulations do not define what a service animal is. As a preventive matter, adopting the DOJ version of service animal makes sense. That is, as discussed in this blog entry, is the animal engaged in recognition and response?
  3. The Department of Transportation regulations doesn’t say what are all of the unusual service animals an airline is never required to accommodate. The regulation specifically uses the phrase, “(example, snakes, other reptiles, ferrets, rodents, and spiders).” So, what else would be on the list? A turkey, a peacock?
  4. Same problem for unusual or exotic animals that an airline has to accommodate unless certain factors apply. The regulations uses the term, “(example, miniature horses, pigs, and monkeys).” Again, you are left wondering what else might be considered an unusual or exotic animal presented as a service animal that an airline would have to go through various factors before excluding. Also, miniature horses may be a different kettle of fish since miniature horses under the ADA DOJ regulations get very similar treatment as service animals.
  5. Direct threat is a term of art in the ADA world. So, as a matter of preventive law, when analyzing direct threat, it would be wise to go about it as if you were dealing with direct threat under the ADA. See this blog entry for example.

III

Airline Reaction: United Airlines and Thoughts

  1. For travel on or after March 1, for passengers traveling with an emotional support animal, passengers will need also to provide a veterinary health form documenting the health and vaccination record for the animal as well as confirming that the animal has appropriate behavioral training. Here is what is interesting, in the box on United’s website talking about the changes effective March 1, 2018, the term used by United is, “emotional support animal.” However, in the body of the document itself, the airline uses the term, “emotional support and psychiatric assist animals.” Therefore, you are left wondering whether United Airlines is engaged in the false equivalency of service dogs and emotional support animals, which as described above is wrong but currently permitted by DOT regulations. Paragraphs III2,3 below represent a continuation of existing United policy and are not changes.
  2. With respect to submitting and notifying United Airlines that you are traveling with an emotional support or psychiatric assist animal, United does allow for calling an 800 number or the United customer contact center and asking to be connected to the accessibility desk. With respect to documentation, there is a link to click on to get the required documentation and that documentation can either be emailed or faxed. United seems to be allowing for multiple different ways for persons with disabilities to do what they have to do with respect to being able to fly with their service animals; a step I highly recommend.
  3. United only recognizes trained and certified service animals. That is a bit odd as service animals are not certified in this country. They certainly go through extensive training and can receive a certificate at the end of that training, but that isn’t the same thing as certification. Service animals can also be trained by anybody.
  4. For therapy animals, standard pet-related regulations and restrictions apply.

IV

Airline Reaction: Delta Airlines and Thoughts

  1. For travel with a trained service animal or an emotional support/psychiatric service animal, Delta requires certain forms to be downloaded and uploaded to their website. They better make sure that this whole process is accessible to persons with disabilities. Otherwise, they are going to be dealing with a title III of the ADA lawsuit.
  2. If you run into trouble filling out the forms, Delta does have an accessibility assistance line, but the process is still entirely form driven.
  3. Service dogs or support animals in training are allowed if the service or support animal in training is traveling with a professional trainer on route to the owner or the animal in training is already a trained service or support animal traveling with a certified trainer for additional training
  4. With respect to the sky club, the policy for service and support animals is the same as the policy for those animals on a Delta aircraft.
  5. Delta is making the policy for service and support animals with respect to the sky clubs the same as for dealing with animals on the aircraft. That is interesting as the sky club at the airport would be governed by title III of the ADA and not the Air Carrier Access Act. In a way, it could be argued that Delta’s policy while not called for by the applicable laws, is a greater benefit to persons with disabilities than might otherwise be the case because by making the policy the same for aircraft and the sky club, a greater number of passengers can use the sky club.

V

What Does Title I of the ADA and the FHA Have to Say about All of This?

  1. As mentioned here, when it comes to employment, the EEOC is silent on service dogs/emotional support animals. Check out this blog entry for thoughts on how to handle that situation.
  2. With respect to the Fair Housing Act, check out this blog entry.

VI

What about State Laws and Preemption?

  1. States have their own approaches for dealing with service dogs. We discussed the Texas approach
  2. We discussed here just how far ACAA goes with respect to preempting state laws and remedies.

VII

Takeaways:

  1. The DOT regulations treat service animal for people with physical disabilities differently than service animals for people with MH issues, doesn’t make a lot of sense to me. It wouldn’t surprise me to see a challenge filed saying that those regulations allowing for such a distinction are arbitrary and/or violate the equal protection clause through the due process clause.
  2. As we have discussed numerous times in this blog entry, the Internet is frequently not accessible to people with disabilities. Airlines would do well to have a multiple variety of ways to allow persons with disabilities to go through the process of being able to bring their animal on the plane.
  3. Different rules from the Air Carrier Access Act apply to airline sky clubs located at the airport as sky clubs are covered by title III of the ADA. Since the ADA is a floor, there isn’t any problem with an airline saying they will go with the same rules as the Air Carrier Access Act in the sky clubs, but the airlines aren’t required to do so, though that approach would raise practical problems.
  4. The Air Carrier Access Act regulations leave a lot of room for interpretation when it comes to certain unusual service animals that are never allowed and certain unusual or exotic animal that are allowed absent any factors.
  5. The Air Carrier Access Act also leaves a lot of room for interpretation with respect to the certain unusual or exotic animals that are permitted absent factors precluding the animal from traveling in the cabin. That would seem to suggest that if any factors do allow the animal to travel in the cabin, the animal must be allowed even if other factors wouldn’t allow for the animal. Of course, the “no such factors,” language could also be read in the opposite. That is, an animal is not allowed to fly on the plane if any of the factors, whatever they may be since the list isn’t exclusive, prohibiting it does apply. I don’t envy airline attorneys trying to figure this one out.
  6. I have been surprised at the lack of empathy on LinkedIn, with respect to emotional support animals and people with disabilities on airplanes. Remember, empathy is always a good thing. This is not to say that fraud is not occurring with respect to emotional support animals, it most certainly is. Even so, for people with disabilities who truly need emotional support animals, they can be of great help.

ADA Compliance as a Delegable Duty: Did I really Say That?

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It isn’t one of my most popular blog entries, but in my opinion, it is one of my most important. I am referring to the blog entry talking about the ADA as a nondelegable duty, which can be found here. On April 24, 2017, the U.S. Court of Appeals for the Ninth Circuit came down with a decision that calls into question whether the Nevada Supreme Court in Rolf Jensen got it right.

The case of the day is City of Los Angeles v. AECOM Services, Inc. decided by the United States Court of Appeals for the Ninth Circuit on April 24, 2017. As is usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. Of course, the reader is free to concentrate on any or all of the categories.

I

Facts:

Two individuals with disabilities filed suit against the City of Los Angeles alleging that the City’s flyaway facility and service, a bus system providing transportation between Los Angeles International Airport and various locations, failed to meet accessibility standards set forth in title II of the ADA. The City subsequently filed a third-party complaint against AECOM Services and Tutor Perini Corporation. The complaint alleged that pursuant to the provisions of the contract entered into by the City and the company hired to design and construct the facility, that AECOM was obligated to defend, indemnify, and hold harmless the City against all suits, claims, losses, demand, and expenses to the extent that any such claims resulted from the negligent and/or intentional wrongful acts or omissions of AECOM, its subcontractors, officers, agents, servants, or employees. The City further alleged that Tutor, the successor in interest to another company retained by the City to construct the facility, was contractually obligated per the provisions of that contract to defend, indemnify, and hold harmless the City against all costs, liability, damage or expense sustained as a proximate result of the acts or omissions of Tutor or relating to acts or events pertaining to, or arising out of, the contract. The contract between the City and Tutor’s predecessor in interest also required that the contractor when performing its contractual obligations comply with all applicable present and/or future local, state and federal laws, statutes, ordinances, rules, regulation, restrictions and/or orders, including the ADA. It also stated that contractor shall be solely responsible for any and all damage caused, and/or penalties levied, as the result of the contractor’s noncompliance with such statutes, ordinances, rules, etc. The District Court threw out the case on the grounds the ADA preempted the indemnification claims (i.e. nondelegable duty essentially), and the City appealed.

II

Court’s Reasoning

In reversing and remanding the case for further proceedings, the Ninth Circuit reasoned as follows:

  1. In determining whether federal law preempts state law, the first thing to look at is the purpose of Congress.
  2. In all preemption cases, especially where Congress has legislated in a field where the States have traditionally occupied, the assumption is that the historic police powers of the States are not superseded by the federal act unless Congress clearly and manifestly says so.
  3. There are several ways federal law may preempt state legislation, including: 1) Congress stating so in express terms; 2) inferring preemption when federal regulation in a particular field is so pervasive as to make the reasonable inference that Congress left no room for States to supplement it, what is called field preemption. That is, the volume and complexity of federal regulation demonstrates an implicit congressional intent to displace all state laws. For a discussion of field preemption, check out this blog entry; 3) implying preemption when state law actually conflicts with federal law, or what is called conflict preemption; and 4) obstacle preemption.
  4. The presumption against preemption exists because respect for the States as independent sovereigns in our federal system leads to the assumption that Congress does not cavalierly preempt state law causes of action.
  5. Neither title II of the ADA nor §504 of the Rehabilitation Act contains a statement of express preemption.
  6. Field preemption doesn’t work because title II of the ADA specifically states that nothing in that chapter is to be construed to invalidate or limit the remedies, rights, and procedures of any State or political subdivision of any States or jurisdictions providing greater or equal protection for the rights of individuals with disabilities than afforded by title II of the ADA. Accordingly, the ADA expressly disavows field preemption of the disability rights field.
  7. Obstacle preemption, which is a subset of conflict preemption, does not apply here either for a host of reasons: the City is not seeking to allocate the full risk of loss to someone else; the City only assigned liability to the defendants to the extent that the defendants own actions gave rise to liability; and the greater concern is for potential contractors to shield themselves from any liability they cause under both States contract law and federal disability regulations if preemption is found to exist.
  8. Though the City is seeking indemnification for a contractor’s wrongdoing, that compensation only constitutes a portion of the City’s total liability under federal disability statutes. In other words, the relief sought may be complete indemnification from the perspective of the contractor’s liability, but it constitutes only partial contribution from the perspective of the City’s liability exposure.
  9. Cities implement policies and procedures as part of their standard operation. Were a court to permit a city to contract away liability to implement policies and procedures complying with federal disability laws and regulations, it would impermissibly be permitting delegation of an entity’s duties under the ADA.
  10. In this case, the City is seeking the redress for specific construction and design failure related to the facility. Cities often have no choice but to contract out designing and construction of public facilities because they do not have the expertise, personnel, or equipment necessary for such projects. Such a delegation is by necessity. Accordingly, an important component in a city doing all that it can to fulfill its duties under title II of the ADA and §504 the Rehabilitation Act is to require as part of its contracts with necessary third parties that the requirements of those statutes be met.
  11. Permitting enforcement of contract claims seeking to hold the contractor liable for duties necessarily delegated to it, does not raise the problem of entirely insulating public entities from ongoing title II of the ADA or §504 of the Rehabilitation Act liability posed by offloading all of the City’s responsibilities under those laws.
  12. If title II of the ADA is viewed as encompassing a public entity’s outputs, that supports the notion that Congress would not have intended to preempt claims for liability arising from tasks that a city does not do, but, in many cases, must instead contract with others to provide the service.
  13. Permitting claims for contribution commensurate with a third party’s wrongdoing does not pose the same obstacle as offloading all of the responsibilities of the ADA onto someone else.
  14. The presumption against preemption applies where a given area is one where the States have historically had the power to regulate, and in this situation, States have historically regulated in the area of civil rights, including the field of discrimination against persons with disabilities.
  15. Obstacle preemption, which applies when a given state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, doesn’t work here either because nothing in title II of the ADA or §504 the Rehabilitation Act addresses a claim for state law indemnification or contribution claims filed by a public entity against a contractor.
  16. Case law from other Circuits suggesting that congressional omission of a federal cause of action for indemnification is a reason to preempt state law claims, turns the presumption against preemption on its head. The basic premise of the presumption is that absent an affirmative indication to the contrary, a federal regulation does not preempt state law. The failure to provide a federal parallel to a state law cause of action doesn’t rise to that standard.
  17. Certainly, it is a valid concern that a public entity could contract out of title II or §504 compliance with respect to the public entity’s failure to maintain appropriate policies and practices (failure to take action solely within its control). Permitting a shift of liability to a party lacking the power to remedy the violation would frustrate the federal statutes regulatory purposes. For example, the legislative history of the ADA confirms that a landlord has an independent obligation to comply with the ADA that may not be eliminated by contract.
  18. The claims asserted by the City against the defendants in this case do not seek to shift liability for what the public entity can control onto somebody else.
  19. The City’s third-party claims seek only to collect for violations arising out of defendants own negligence or wrongdoing. In other words, the City despite how it styled its claim, is in actuality seeking contribution from the defendants. Allowing such claims does not plausibly pose an obstacle to the intended purpose and effect of either the ADA or the Rehabilitation Act. In fact, a finding of preemption would hamper the statutes regulatory purposes. If there is no preemption, then the most a public entity can be able to do is to expressly contract for compliance and from there, the entity best situated to ensure full compliance may well be the contractor tasked with designing or constructing the public resource. If you preclude contract clauses for contributions, you then reduce a contractor’s incentives to ensure that the applicable statutes, laws, and regulations are complied with.

III

Takeaways:

  1. Is this case really an overrule so to speak of our Mandalay Bay case? I’m not sure it entirely is for reasons that follow below.
  2. The court was very careful to style this as a contribution case rather than an indemnification case. The difference is important because contribution implies shared responsibility while indemnification implies sole responsibility.
  3. This case was a title II case and not a title III case. The difference is important because the range of responsibility for ADA compliance are far greater with respect to title II than they are with respect to title III.
  4. The court did note that responsibilities of landlords cannot be delegated.
  5. As mentioned above, if you are looking for where field preemption does work, check out this blog entry.
  6. This case does allow for indemnification where that indemnity is the result of the contractor’s own negligence/screw up.
  7. This case implies that failure of a contractor to understand the applicable ADA obligations necessary for a contractor to carry out their work may also be negligence. See also this blog entry.
  8. The critical question is whether the liability exposure from the perspective of the entity contracting out services is indemnification or just partial contribution.
  9. The court says that to permit a city to contract away liability to implement policies and procedures complying with federal disability regulations would impermissibly permit delegation of an entity’s duties under the ADA? Does that mean a public entity cannot contract out HR services or employee benefit services? Maybe. Certainly, means joint and several liability at a minimum.
  10. To my mind, it is a strong argument to say that contractors are often the best situated to ensure full compliance with the designing or constructing of public resources and that if contribution was precluded, a disincentive for complying with the applicable statute, laws, and regulations is created.
  11. The case seems to be strong in terms of its reasoning. With the current makeup of the Supreme Court and the nature of this case, I would think that the Ninth Circuit decision would be affirmed by the Supreme Court by at least a 6-3 majority. Unclear to me whether the Supreme Court would take the case in any event because there may not even be a conflict among the Circuits. For example, the Ninth Circuit went into elaborate detail as to why this case was different from the Fourth Circuit case.