[00:00:00] Speaker 02: I have a little bit of housekeeping before we jump in today. [00:00:05] Speaker 02: The first case on the calendar, I should say cases, 22-1647, 22-16849, and 23-35119 is a bit peculiar time-wise. [00:00:20] Speaker 02: Our understanding is that we're going to hear first from, this would be Mr. Westler, is that right? [00:00:27] Speaker 02: And then we're going to hear from three different defense counsels, is that right? [00:00:33] Speaker 02: Ten minutes each on the clock and then you'll reserve whatever you want for rebuttal. [00:00:36] Speaker 02: Is that the game plan? [00:00:38] Speaker 02: Okay. [00:00:38] Speaker 02: We're ready to hear your argument. [00:00:44] Speaker 02: I shouldn't say game plan. [00:00:45] Speaker 02: I think any football references are sensitive in San Francisco this week. [00:00:51] Speaker 02: Go right ahead. [00:00:52] Speaker 01: Thank you. [00:00:52] Speaker 01: May it please the court, Matthew Wessler, for the appellants in all three of these appeals. [00:00:57] Speaker 01: With the court's permission, I'd like to reserve eight minutes for rebuttal. [00:00:59] Speaker 02: Just keep an eye on the clock. [00:01:00] Speaker 01: I will. [00:01:01] Speaker 01: Thank you, Your Honor. [00:01:02] Speaker 01: American pipe tolling is not a cynical game of gotcha. [00:01:05] Speaker 01: When the parties to a class action, the district court, the named plaintiffs, and the defendant all agree that a certain group of absent class members are included within the class. [00:01:16] Speaker 01: then those absent class members are entitled to rely on that fact for tolling purposes when they later file an individual identical lawsuit after the class has been decertified. [00:01:26] Speaker 01: In such a case, which is what we have here, the doctrine does not permit a defendant to later turn around and pull the rug out from underneath those absent class members by offering some theoretical post-hoc interpretation about the class definition [00:01:41] Speaker 01: that somehow controls, even though it remained hidden throughout the entirety of the underlying class case. [00:01:47] Speaker 01: Were it otherwise, absent class members would be forced to file duplicative individual lawsuits to preemptively protect their rights, which would frustrate the very principal function of a class action altogether, and it would inundate the courts with a flurry of additional and unnecessary lawsuits. [00:02:03] Speaker 01: Because the district courts ran afoul of these basic principles in denying American pipe tolling to the absent class members here, this court should reverse. [00:02:11] Speaker 01: I just want to I'm sorry my time the clock is is not on and so I'm just I'm not certain if it's running Thank you, please be seated Sorry about that. [00:02:21] Speaker 02: Give us just one minute. [00:02:22] Speaker 02: We'll stop rustling papers and then you can Resume where you're only a minute in I think so what could we just start over? [00:02:30] Speaker 02: of course, okay, we're gonna pretend that didn't happen start over and [00:02:38] Speaker 02: All set. [00:02:40] Speaker 01: Thank you for the appellants and I'd still like to reserve eight minutes of rebuttal. [00:02:43] Speaker 01: That's right ahead. [00:02:45] Speaker 01: American pipe tolling is not a cynical game of gotcha. [00:02:48] Speaker 01: When the parties to a class action the district court the named plaintiffs and the defendants all agree that a certain group of absent class members are included within the class which is what happened here. [00:02:59] Speaker 01: and those absent class members are entitled to rely on that fact for tolling purposes when they later file an identical individual lawsuit after the class has been decertified. [00:03:08] Speaker 01: And I'd like to start by focusing on the standard that applies whenever a court is asked to decide if American pipe tolling [00:03:14] Speaker 01: As in these cases applies 50 years ago when the Supreme Court decided American pipe it adopted what it thought was a bright line clear rule, which is that the commencement of a class action told the limitation period for all asserted members of the class that's that's quoting from the Supreme Court's. [00:03:32] Speaker 01: opinion until a district court either refuses to certify the class or it's later decertified. [00:03:38] Speaker 01: In adopting this rule, the court sought to balance two competing goals. [00:03:42] Speaker 01: The first is fairness and notice to a defendant. [00:03:45] Speaker 01: Statutes of limitation as a general matter are principally designed to prevent plaintiffs from sitting on their rights and bringing claims long after memories have faded or evidence has been lost. [00:03:55] Speaker 01: But American Pipe's tolling rule recognizes that a limitations period must give way to certain Rule 23 concerns. [00:04:02] Speaker 01: When a class action is filed, unlike in an individual case, the named plaintiff has taken care of a defendant's notice and fairness concerns, not just regarding the substantive claims that are brought in that case, but also the, and again, I'm quoting from the Supreme Court's opinion, the number and generic identities of the potential plaintiffs who may participate. [00:04:21] Speaker 01: So, absent class members are entitled to be thought of as parties to the suit in a class action for limitations purposes unless and until they receive notice that they are no longer in the case. [00:04:31] Speaker 02: So, when did the defendants put on notice that a particular plaintiff is or is not a member of the class? [00:04:38] Speaker 01: Well, here, if we're talking just as a general matter, that can be true. [00:04:41] Speaker 02: I'm just talking as a general matter because that's the devil's in the details, right? [00:04:45] Speaker 02: That definition can morph. [00:04:47] Speaker 01: Yes, it can. [00:04:48] Speaker 01: So in general, that happens at the commencement of a lawsuit where the plaintiffs, the name plaintiffs identify in their view what the class definition should, the number and type of class members that are included within the definition. [00:05:02] Speaker 01: yes it can morph. [00:05:03] Speaker 01: I will say that the Supreme Court has identified the triggering point for statute of limitations at when absent class members get noticed that they are no longer in the class. [00:05:15] Speaker 01: And so you can find some examples [00:05:18] Speaker 01: in the wake of American Pipe where courts have said, well, tolling can be lost, for instance, at the time that a named plaintiff files a motion for class certification where they have unambiguously narrowed the scope of the definition to exclude certain absent class members. [00:05:33] Speaker 01: Now, we are not in that territory here. [00:05:36] Speaker 01: I don't think this court has to weigh in on that. [00:05:38] Speaker 01: I do think that the Supreme Court has never adopted that rule. [00:05:41] Speaker 01: Instead, what the Supreme Court has said is, [00:05:43] Speaker 01: It should be when absent class members receive notice, either after the class has been certified or district court refuses to certify. [00:05:54] Speaker 01: But yes, it can morph. [00:05:55] Speaker 01: Here, though, there really isn't any meaningful dispute that the plaintiffs that are the subject of these appeals were always within the scope of the class that the named plaintiffs sought to represent. [00:06:08] Speaker 06: That is the dispute, right? [00:06:10] Speaker 01: Well, I think Union Pacific disputes that. [00:06:13] Speaker 01: Yes. [00:06:13] Speaker 01: Yes. [00:06:14] Speaker 06: That's why we're here. [00:06:15] Speaker 01: Yes. [00:06:16] Speaker 01: But I think if you look at the record in Harris, the underlying class action, what you see is a consensus. [00:06:24] Speaker 01: At no point during the underlying class litigation did Union Pacific ever dispute that these plaintiffs were actually in the class. [00:06:32] Speaker 03: But are we expecting- Talk about the original class. [00:06:34] Speaker 03: Sorry? [00:06:35] Speaker 03: The original class. [00:06:36] Speaker 01: the original class and the class that the district court actually certified. [00:06:41] Speaker 06: Mr. Wessler, let me ask you to help us out. [00:06:46] Speaker 06: When you all narrowed the proposed class definition, who in your view was unambiguously excluded by the change in the definition? [00:06:56] Speaker 01: I think that the answer to that would be any worker who was subject to a fitness for duty examination that was not in some way connected to a reportable health event. [00:07:06] Speaker 01: And I think that's true. [00:07:07] Speaker 01: You can see that if you look at the course of the party's communications from when the plaintiffs filed their original complaint where they didn't tie the class definition in any way to the reportable health event. [00:07:23] Speaker 01: And then what happened after that is that Union Pacific came back and it said, look, that could potentially encompass hundreds of thousands of our workers. [00:07:33] Speaker 06: People taking, just taken off the job to be tested. [00:07:36] Speaker 06: Correct. [00:07:37] Speaker 01: And so in response to that, what the plaintiff said was, okay, we will refine the definition to connect the fitness for duty exams up to the reportable health events. [00:07:50] Speaker 06: Could I ask you to help us out? [00:07:53] Speaker 06: I understand much of your argument is based on, in essence, the track record in Harris and the behavior of the parties and the briefing in that case and so on. [00:08:06] Speaker 06: If you could focus for a moment just on the text of the class definition as it changed, how do you parse that definition so as to include these plaintiffs? [00:08:19] Speaker 01: Sure. [00:08:20] Speaker 01: So I think there are sort of two parts to that definition. [00:08:23] Speaker 01: The first is this phrase related to. [00:08:25] Speaker 01: And in our view, and I will just emphasize that this is the view that parties and the district court took in Harris, I'm sorry, as a result of, that's the phrase. [00:08:35] Speaker 01: That phrase as a result of in the class definition was used to convey, it was indistinguishable from the phrase related to. [00:08:45] Speaker 01: And so the parties and the district court understood that definition to include anyone who was subject to a fitness for duty exam that was related to a reportable health event. [00:08:54] Speaker 06: Now, a reportable health event is the other, I think, key phrase in this definition, and the reportable health event was not intended to be read so narrowly, so as to only... Okay, let me ask you to try to restrain yourself from talking about intent, and we'll get to that, and I don't want to discourage you, I think that's fair game, but let's talk text first. [00:09:21] Speaker 01: Sure, so as I said, the first, as a result of phrase, [00:09:24] Speaker 02: means any anyone who is subject to a fitness for duty exam related to a reportable health event text forgive me for interrupting but should I when you say fitness for duty exam should I understand that to mean subjected to a light cannon test correct there's nothing more to a fitness for duty exam for these plaintiffs other than the light cannon that's correct okay yeah all right so back to the text sorry and then reportable health event basically means any [00:09:54] Speaker 01: Anyone who had some, underwent some change or event that triggered them into the fitness for duty program. [00:10:04] Speaker 06: In your view, as I understand it, that does not necessarily require a physical change in the vision. [00:10:11] Speaker 06: Correct. [00:10:11] Speaker 06: That's correct. [00:10:12] Speaker 06: That would be included, but the concept is broader than that. [00:10:14] Speaker 01: That's correct. [00:10:15] Speaker 06: And I think that... The supervisor notices behavior. [00:10:19] Speaker 06: Correct. [00:10:21] Speaker 06: calls for a further test. [00:10:23] Speaker 01: That's correct and I think that comes directly from the testimony of Union Pacific's chief medical officer who was deposed about precisely who would be subject to a fitness for duty exam based on a reportable health event and he said it's broader than just a physical change. [00:10:39] Speaker 01: It could be an observation that someone has [00:10:42] Speaker 01: about a particular condition, and that observation could compel us to put them into the fitness for duty. [00:10:49] Speaker 06: And suppose, I don't know if this happens, but suppose a conductor or an engineer saw a private physician had an Ishihara test and failed it. [00:11:00] Speaker 06: Would that be considered a reportable health event? [00:11:03] Speaker 01: I think it would under the broader definition. [00:11:06] Speaker 01: I think you can ask any specific. [00:11:07] Speaker 01: I will. [00:11:07] Speaker 01: Yes, whether that would. [00:11:09] Speaker 01: But from our perspective, the point is it's broader than just a physical change. [00:11:14] Speaker 01: And I think you can understand that from the text of this definition. [00:11:19] Speaker 01: But what I think American pipe tolling asks you to do is to put yourself in the shoes of an absent class member. [00:11:27] Speaker 01: And Judge Niemeyer, in one of the decisions from the lower courts that considered American pipe tolling in a case called Bridge, [00:11:33] Speaker 01: identified the way I think that courts ought to be thinking about this question. [00:11:39] Speaker 01: He said, what would it be objectively reasonable for an absent class member looking at the class certification decision and the litigation conduct of the parties to believe or rely on the named plaintiffs and understand that their interests were being protected? [00:11:57] Speaker 01: And I think the problem here, what went wrong in these cases, is that the district courts [00:12:03] Speaker 01: just attempted to divorce this class definition from the broader context. [00:12:09] Speaker 01: And I don't think you even need to get to litigation conduct. [00:12:11] Speaker 01: I think what matters for purposes of American pipe tolling is what the district court said about this definition in its class certification order. [00:12:20] Speaker 01: It used the exact definition we're talking about right now. [00:12:23] Speaker 01: It didn't change anything about the definition. [00:12:26] Speaker 01: And it said, I'm adopting that definition for purposes of the class. [00:12:30] Speaker 01: And it was very explicit about who were going to be class members under this definition. [00:12:35] Speaker 01: You actually, it's not all that often that you get a class certification decision like this one where there is a list of potential class members that fall within the scope of the defined class. [00:12:48] Speaker 01: And here you have a class list [00:12:51] Speaker 01: the district court said these are all the people that are class members in this case under this definition and they included in this list included Mr. Blankenship one of the name plaintiffs in this case Mr. Goss Mr. Campbell all of those all of those individuals were on the class list in addition to the class list which again the district court [00:13:13] Speaker 01: called a list of class members. [00:13:17] Speaker 01: The plaintiffs included 44 declarations of class members to support their motion for class certification. [00:13:24] Speaker 01: One of those declarations was Mr. Donahue, another plaintiff in this case. [00:13:29] Speaker 01: So put yourself in Mr. Donahue's shoes back when the Harris litigation is ongoing. [00:13:36] Speaker 01: What he has to ask himself is, can I rely on what the plaintiffs are saying, what the district court is saying about whether I am in this class? [00:13:45] Speaker 01: His declaration was included as a member of the class. [00:13:50] Speaker 01: And the district court, in its class certification order, said explicitly, everyone who [00:13:55] Speaker 01: entered a declaration into this case is a class member. [00:13:59] Speaker 01: I submit to you that there is no possible way that anyone who is either on that list or who had a declaration put into the record as part of the class certification motion could think anything other than that they were in the class. [00:14:15] Speaker 06: And then from your perspective, if I understand it correctly, Mr. DeFries, who later would have come under that definition, was similarly situated. [00:14:25] Speaker 01: He was similarly situated. [00:14:26] Speaker 01: And I don't think you'll hear. [00:14:28] Speaker 01: Again, you can ask them. [00:14:29] Speaker 01: But I don't think Union Pacific takes the position that he was different in some way other than that the list predated his removal and movement into the fitness for duty program. [00:14:40] Speaker 03: So what do we do with the state of the record on this? [00:14:42] Speaker 03: Because everything you've just said is out there in the Harris litigation, but it wasn't before the various district courts. [00:14:54] Speaker 03: So how do we deal with the differing records that we have from the three district courts or the ones in our circuit? [00:15:01] Speaker 01: Sure, so a couple of responses to that, Your Honor. [00:15:03] Speaker 01: First, I mean, just to be really clear, the arguments about whether tolling applies to all of these plaintiffs were absolutely made in front of the district courts all at summary judgment. [00:15:15] Speaker 03: I get that. [00:15:16] Speaker 03: The question is to the extent to which we can consider the Harris litigation materials that were not presented to the district court or the district court didn't rule on in one case. [00:15:28] Speaker 01: Well, I think the district courts, it was all presented to the district courts. [00:15:31] Speaker 01: Now it came up after summary judgment on a motion for reconsideration. [00:15:36] Speaker 01: It did not come up on a motion for reconsideration into freeze. [00:15:40] Speaker 01: So the whole record was in front of the district court into freeze. [00:15:44] Speaker 01: It is in front of this court now. [00:15:46] Speaker 01: This court could take judicial notice of all of that record. [00:15:49] Speaker 01: I would submit that I don't think to reach a result here in any of these cases that you actually even need the record in the underlying Harris case. [00:15:59] Speaker 01: There's no dispute that what was put in front of all of the district courts in this case was the class certification decision itself. [00:16:06] Speaker 01: And that, I think, is outcome determinative here because it specifically identified these plaintiffs as within the scope of the class based on the definition that we're talking about and that was in front of the district court in Harris. [00:16:20] Speaker 01: And I think that sort of begins and ends the inquiry. [00:16:24] Speaker 01: If the district court is certifying a class and is explicit that certain absent class members are part of that class, it is objectively reasonable for those absent class members to rely on that representation and not file separate individual suits while waiting to see what happens in the certified class. [00:16:41] Speaker 06: Mr. Wessler, could I ask you to back up for a couple of minutes? [00:16:44] Speaker 06: You referred to an opinion by Judge Niemeyer, and I think you said it was bridge. [00:16:48] Speaker 06: Correct. [00:16:49] Speaker 06: And I don't have that off the top of my head. [00:16:52] Speaker 06: The phrase has resonated with me. [00:16:56] Speaker 06: The logic resonated. [00:16:57] Speaker 06: Which case was that? [00:16:58] Speaker 01: It's called bridges. [00:16:59] Speaker 01: Sorry, bridges, Your Honor. [00:17:00] Speaker 01: I'm excited in our brief. [00:17:02] Speaker 01: Sorry. [00:17:03] Speaker 01: The phrase that I think resonates for me is he called it the reasonable class member rationale. [00:17:10] Speaker 01: So what we ask is, what would a reasonable class member understand about whether they needed to file an individual lawsuit or they were entitled to rely on named plaintiffs to represent their interests? [00:17:21] Speaker 01: And in some cases, maybe that's, it would be unreasonable for an absent class member to rely on named plaintiffs. [00:17:29] Speaker 01: In an example, the Union Pacific cites two cases that it says support its views, Sawtell and Smith. [00:17:35] Speaker 01: In those cases, for instance, there was an original class that was multi-state class. [00:17:43] Speaker 01: I think it was maybe Minnesota and another state filing of the underlying complaint. [00:17:48] Speaker 01: When the plaintiffs later filed their motion for class certification, they narrowed the class only to include Minnesota residents. [00:17:56] Speaker 01: So in that situation, what the plaintiffs [00:17:58] Speaker 01: courts have said is it would be unreasonable for, you know, an Arizona plaintiff to rely on the named plaintiffs in a class that has been narrowed down to just Minnesota residents. [00:18:10] Speaker 01: I actually think under American Pipe it may be improper to rely on what the plaintiffs say at the class certification motion. [00:18:18] Speaker 01: I think it matters what the district court says. [00:18:20] Speaker 01: at class certification, but I don't think you have to go even that far in this case, because here you have a class certification decision that is explicit about who is in the class, and it includes all of the plaintiffs in these appeals in these cases. [00:18:35] Speaker 01: And so from an objectively reasonable standpoint, would it have been objectively reasonable for the absent class members to rely, I think the answer here has to be yes. [00:18:44] Speaker 06: Can you remind us what the record shows about whether these named plaintiffs in this case actually received notice of the district court's class certification in Harris? [00:18:55] Speaker 01: Yes, so I don't think they received the district court in its class certification just in order that notice be sent, but what happened the [00:19:03] Speaker 01: just the trajectory of that underlying case is that the Union Pacific filed a 23F petition seeking review in the A circuit of the class certification decision, which was granted. [00:19:14] Speaker 01: And I think at that point, everything halted in the district court. [00:19:18] Speaker 01: My understanding is no notice. [00:19:20] Speaker 01: The district court, in its class certification decision, did order that notice be sent, and it ordered that notice be sent to everyone on the class list, which included [00:19:30] Speaker 01: there was a all but all but defreeze as among those who would receive notice. [00:19:39] Speaker 01: I think I just want to sort of put just one more sort of point on this, and then I'll reserve the rest of my time for rebuttal unless the panel has further questions. [00:19:48] Speaker 01: But it is, to me, quite remarkable that in its response, Union Pacific doesn't really contest any of what we just discussed. [00:19:56] Speaker 01: It doesn't contest that the district court's class, when it was certified, included these plaintiffs. [00:20:01] Speaker 01: It doesn't contest that Mr. Donahue was a declarant who was called a class member. [00:20:09] Speaker 01: The only thing it says is that you should divorce this class definition from the rest of the context and interpret it post-hoc on a fresh clean slate without considering anything about what happened in the underlying case and then use that to deny these plaintiffs the ability to file their claims. [00:20:29] Speaker 01: I think in addition to contradicting what the district court said and what the named plaintiff said, it is also quite remarkable that it contradicts what Union Pacific itself said in the underlying Harris litigation. [00:20:41] Speaker 01: When it sought that 23F appeal up to a circuit, one of the grounds it used, the reasons it said [00:20:48] Speaker 01: the Eighth Circuit should reverse the class certification decision was because the class that was certified included this diverse range of different kinds of workers. [00:20:57] Speaker 01: It explicitly referenced the 7,000 class members that were included in the class list as being among those within the class that the district court certified. [00:21:07] Speaker 01: And so for it to now turn around and say, you're supposed to ignore all of that, [00:21:10] Speaker 01: I think quite undermines both the sort of institutional interest regarding Rule 23 and also requires the court to just fundamentally ignore everything that was said in the Harris litigation and that would have informed absent class members about what they needed to do. [00:21:26] Speaker 02: The district courts know that and I guess my follow-up question is do we have any kind of a, I won't see one. [00:21:32] Speaker 02: a judicial estoppel argument? [00:21:36] Speaker 01: There hasn't been a judicial estoppel argument made. [00:21:38] Speaker 01: This information was put in front of the district courts, albeit not in all of the cases. [00:21:44] Speaker 01: It didn't come in on summary judgment. [00:21:45] Speaker 01: It did come in in front of the district court at summary judgment in defrees. [00:21:50] Speaker 01: There's no forfeiture or estoppel argument made, certainly in that case. [00:21:54] Speaker 01: And I would submit that at least as an exercise of this court's discretion, it can look at those documents and rely on them when resolving this question across the board for all these plaintiffs. [00:22:02] Speaker 03: We can do that. [00:22:03] Speaker 03: I mean, why should we reverse a district court based on new evidence that we're hearing on appeal? [00:22:11] Speaker 03: I mean, I know we're considering all these together, but it's awfully difficult to say, okay, in this other case, we have evidence in front of us that you didn't consider and nobody put in front of you, and we're going to reverse you on that. [00:22:26] Speaker 01: So I understand that concern. [00:22:28] Speaker 01: I don't think this court needs to look at that evidence to reverse. [00:22:31] Speaker 03: I know you said that, but then you keep arguing that if you look at the Harris as a whole, that it's obvious question. [00:22:39] Speaker 03: Now, you have some good points. [00:22:44] Speaker 03: My question to you is, in the cases where the district court did not consider the evidence and it wasn't put in front of them, how do we resolve that on appeal? [00:22:53] Speaker 01: Well, so I do think it was put in front of them. [00:22:57] Speaker 01: It was just done so on a motion for reconsideration, which is the problem. [00:23:00] Speaker 01: Well, but this court reviews that decision for abusive discretion. [00:23:03] Speaker 01: And I would submit that a legal error, which is what I think happened here, is an abuse of discretion. [00:23:09] Speaker 01: And so I think that would be the path that you could take to review those decisions. [00:23:14] Speaker 01: Now, if you read, for instance, the district court's decision on reconsider... Sorry. [00:23:19] Speaker 01: Go ahead. [00:23:19] Speaker 01: If you read the district court's decision, for instance, in Mr. Blankenship's case on reconsideration, [00:23:25] Speaker 01: The court says, I've considered all of this. [00:23:28] Speaker 01: I've looked at the definition. [00:23:30] Speaker 01: I've looked at what happened in Harris, and I don't think anything that you've put in front of me changes my perspective that, to use its words, the named plaintiffs abandoned the claims of these absent class members. [00:23:41] Speaker 01: I think that was error at the time the district court reached that decision at summary judgment, and I think it doubled down on that decision at the reconsideration stage. [00:23:49] Speaker 01: the abuse of discretion standard would apply, but it would allow you to say, look, that was a legal error because we don't divorce this class definition from the record in the way that it came up and what it told absent class members. [00:24:01] Speaker 03: And your best case for that is? [00:24:03] Speaker 01: Well, I don't think we have a case. [00:24:04] Speaker 01: I think I would rely, Your Honor, on this court's discretion to do that. [00:24:07] Speaker 02: So I'm asking a slightly different question. [00:24:09] Speaker 02: And when you say, you're speaking a little bit loosely and fairly in response to the question about the district court saying, I know what happened in Harris. [00:24:17] Speaker 02: So there's Harris. [00:24:19] Speaker 02: And then there's Harris. [00:24:20] Speaker 02: I'm trying to figure out whether any of the district court judges, I think they'll decline to look at the additional evidence about the class lists and matters specific to these plaintiffs in the district court. [00:24:34] Speaker 02: But what about the Eighth Circuit opinion? [00:24:37] Speaker 02: There's a separate argument, and you've now conceded that we don't have a judicial estoppel argument based upon the railroad's position that it took in the Eighth Circuit. [00:24:49] Speaker 02: But did the district courts consider that? [00:24:52] Speaker 01: Again, I think it was put in front of them. [00:24:54] Speaker 01: I don't think they explicitly considered it. [00:24:57] Speaker 02: When was it put in front of them? [00:24:58] Speaker 01: In two of the cases, it was at the motion for reconsideration stage. [00:25:01] Speaker 02: That answers my question. [00:25:02] Speaker 01: In DeFries, it was in front of the district judge at summary judgment. [00:25:06] Speaker 02: Wait, wait, wait. [00:25:07] Speaker 02: The Eighth Circuit's opinion and the fact that the railroad took a different position in front of the Eighth Circuit, at least that's your presentation. [00:25:14] Speaker 02: Yes. [00:25:14] Speaker 02: That was in front of the district. [00:25:16] Speaker 01: In defreeze, and there is no, just to be clear, there is no, Union Pacific fashions it as a forfeiture argument, but that's not, there's no argument like that in defreeze. [00:25:26] Speaker 02: Okay, so if I could just get to my last follow-up, which is, in the DeFries case, in the district court, what you're telling me is that, I think, is that the district court was aware that the railroad, at least allegedly, took a different position in front of the Eighth Circuit than they're arguing here today. [00:25:41] Speaker 02: Yes. [00:25:42] Speaker 02: Was there a judicial estoppel argument made to the district court in DeFries? [00:25:46] Speaker 01: I don't believe so, Your Honor. [00:25:47] Speaker 02: Okay. [00:25:49] Speaker 02: I think you've answered my question. [00:25:50] Speaker 06: But just to be, I want to make sure I understand what you told us earlier that the Harris certification order was in front of all three of these district courts. [00:26:03] Speaker 01: Absolutely, in all three of these cases, trial court order. [00:26:07] Speaker 01: The order certifying the client. [00:26:08] Speaker 01: Correct. [00:26:09] Speaker 01: Union Pacific made this argument, American pipe tolling doesn't apply. [00:26:15] Speaker 01: That was the argument that Union Pacific made at summary judgment in all of these cases. [00:26:20] Speaker 01: And the plaintiffs responded by saying, no, these plaintiffs are unequivocally part of the class because this is the class that the district court in Harris certified. [00:26:27] Speaker 02: Okay, you are well below the eight minutes that you wanted to save, so we'll hear from opposing counsel at this point. [00:26:33] Speaker 02: Gentlemen, I'm not sure which order you're going to proceed in. [00:26:37] Speaker 02: If you could let us know which case you're speaking to, that would be helpful. [00:26:39] Speaker 04: Absolutely, Your Honor. [00:26:40] Speaker 04: I'm going to be speaking to Donahue, and just to clarify the timing, we agreed amongst ourselves that I'm going to take 15 minutes. [00:26:47] Speaker 04: Mr. Moore is going to proceed on blank and shift for 10 minutes, and then Mr. Walsh will follow up with the freeze for five minutes. [00:26:54] Speaker 02: As long as Madam Clerk has that and the clock is working, we're good. [00:26:58] Speaker 02: And it seems to be so. [00:26:59] Speaker 02: Thank you for the clarification. [00:27:18] Speaker 04: Good morning, Your Honors. [00:27:19] Speaker 04: May it please the court? [00:27:21] Speaker 04: The district court correctly held an American pipe that appellants disparate treatment claim [00:27:26] Speaker 04: was time barred and not saved by American Pipe tolling. [00:27:30] Speaker 04: The court in American Pipe set forth the rule that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action. [00:27:47] Speaker 04: In the court's view, this tolling rule served the purposes of class actions under Rule 23, which is to promote [00:27:54] Speaker 04: efficiency and economy of litigation, and the tolling rule was consistent with the functional operation of a statute of limitations, which includes preventing plaintiffs from sleeping on their rights. [00:28:08] Speaker 04: As the court stated in ANC's securities case, [00:28:11] Speaker 04: Statute of limitations are designed to encourage plaintiffs to pursue diligent prosecution of known claims. [00:28:19] Speaker 06: Given the reference to Mr. Donahue in the certification order in Harris, how was Donahue sleeping on his rights? [00:28:28] Speaker 04: Mr. Donahue was sleeping on his rights because [00:28:32] Speaker 04: despite the reference to his declaration in the Harris order, which was done during the court's analysis of adequacy of the representation portion. [00:28:44] Speaker 04: He was sleeping on his rights because the quarter unambiguously certified a definition, class definition, in which he did not fit. [00:28:53] Speaker 04: And that definition was all individuals who have been or will be subject to a fitness for duty examination as a result of a reportable health event. [00:29:02] Speaker 04: And his declaration itself specifically said, I was subject to a fitness for duty examination because of my routine FRA recertification process. [00:29:12] Speaker 02: So that's failing the Nishihara, right? [00:29:14] Speaker 02: That's the certification process? [00:29:16] Speaker 04: Well, the FRA certification process is a two-pronged process, Your Honor. [00:29:20] Speaker 06: So he should have figured this out himself. [00:29:25] Speaker 02: I'm trying to figure out how that's not a reportable health event. [00:29:27] Speaker 02: The railroad, understandably so, thought that was, certainly acted like that's a really important event, and that's what subjected him to the light cannon, right? [00:29:35] Speaker 02: It seems entirely circular to me. [00:29:37] Speaker 04: No, not at all, Your Honor, because the FRA regulations require that first the conductors and engineers undergo a pre-approved scientific test, in this case the Ishahara test, [00:29:52] Speaker 04: at which point under the regulations, if they do not pass, they are not actually qualified as having the necessary color visual acuity to perform as conductors or engineers. [00:30:03] Speaker 04: But then the regulations separately require Union Pacific or any railroad to offer a subsequent field test to show that despite this failure, the employee actually does have the visual acuity necessary. [00:30:19] Speaker 04: And so it's not a reportable health event, your honor, because [00:30:22] Speaker 04: For one, most color vision deficiencies are hereditary. [00:30:27] Speaker 04: They don't change over time. [00:30:30] Speaker 04: And so the only thing that's changed in this scenario is previously all of these appellants failed the Ishahara. [00:30:38] Speaker 04: They underwent a subsequent field test. [00:30:41] Speaker 04: All that changed was the nature of the field test, not their vision. [00:30:44] Speaker 02: Well, what would change from their perspective is that the railroad, their employer certified them as capable of performing a safety sensitive job and now has decided because they failed both the Ishahara and the light cannon that they're not qualified to [00:31:00] Speaker 02: perform that job. [00:31:02] Speaker 02: If one takes a step back, it's really tough to understand how the railroad is arguing with a straight face that failing the Ishahara in this very sensitive safety position is not a reportable health event. [00:31:14] Speaker 02: We have to really look at the, and of course we have squinted hard and read through your definition, and I understand how you get there. [00:31:22] Speaker 02: I'm trying to figure out how that is workable for our class members. [00:31:27] Speaker 04: Well, I mean, I think there's two things, Your Honor. [00:31:31] Speaker 04: One, a reportable health event as it relates to color vision requires a significant change in the person's color vision. [00:31:43] Speaker 04: So the failure of the Ishihara in and of itself, again, does not demonstrate a significant change of color vision. [00:31:50] Speaker 06: Well, then nobody has a significant health change, right? [00:31:53] Speaker 04: No, not at all, Your Honor. [00:31:55] Speaker 06: Because you've just told us it's hereditary. [00:31:59] Speaker 04: Most of the time that's true, but there are circumstances in which, for example, somebody could fail an exam because of glaucoma or cataracts or some other eye condition that has developed, at which case there would be a significant change in their color vision acuity. [00:32:15] Speaker 04: And in that scenario, that would be a reportable health event. [00:32:19] Speaker 02: Well, the conversation I've been having with my law clerk for the last week is that when we get into these weeds, we're not talking about whether these folks really do or do not satisfy the test, whether they should or should not be in the class, whether they're going to be able to keep these jobs. [00:32:30] Speaker 02: We're talking about the American pipe rule, and what's fair for tolling purposes. [00:32:35] Speaker 02: And that opinion cries out for the need for a bright line rule, because that's what's fair. [00:32:40] Speaker 02: The clock's either running or not running on their time to file a claim. [00:32:45] Speaker 02: So that's why I'm very concerned about [00:32:49] Speaker 02: looking back at this definition now for a person in the field whose job is on the line to say failing the Nishihara is not a reportable health event seems to me like, to say that it's counterintuitive is perhaps even kind. [00:33:04] Speaker 02: So what's your best shot at convincing me that they should have known? [00:33:08] Speaker 04: Well, it's not a matter of whether they should have known. [00:33:12] Speaker 04: In terms of setting forth a- I'm sorry, but it is. [00:33:15] Speaker 06: It is. [00:33:16] Speaker 06: You're saying that Donahue, for example, who's cited in the district court's class certification order, was sleeping on his rights. [00:33:26] Speaker 06: How should he have known? [00:33:30] Speaker 04: He should have known because at the moment, [00:33:35] Speaker 04: the appellants revised the class definition in their motion for class certification, that definition excluded him. [00:33:45] Speaker 06: He should have understood what the district judge in Harris did not, apparently, and what your brief in the Eighth Circuit did not, right? [00:33:54] Speaker 06: We at least get, in the DeFries case, we get to talk about the Eighth Circuit brief, right? [00:34:00] Speaker 06: That's in there. [00:34:03] Speaker 06: And do you recall that that brief does refer to, it does cite a Mr. Barkmire's declaration, correct? [00:34:11] Speaker 04: It does cite to Mr. Barkmire's definition. [00:34:14] Speaker 06: And Mr. Barkmire, is Mr. Barkmire situated differently from any of these named plaintiffs? [00:34:19] Speaker 06: That is somebody who was consistently flunking the Ishihara test and consistently passing the field test before the change here. [00:34:27] Speaker 04: That's not in the record, Your Honor. [00:34:29] Speaker 06: I will say, though, that Mr. Barkmire's declaration, I mean, you cited it in your brief. [00:34:39] Speaker 06: The brief is in the record. [00:34:40] Speaker 06: Are you saying we're not allowed to look at what you cited in your brief? [00:34:43] Speaker 04: No. [00:34:43] Speaker 04: What I'm saying is his declaration does not set forth the information in response to the questions you've asked. [00:34:53] Speaker 06: My medical status did not prevent me from performing my job at Union Pacific. [00:34:57] Speaker 06: In fact, in the past, I passed Union Pacific's color vision testing each time I completed my FRA certification. [00:35:04] Speaker 06: My treating physician also cleared me to take a retest. [00:35:13] Speaker 06: That's not good enough? [00:35:15] Speaker 06: He's the color vision plaintiff you specifically referred to in your Eighth Circuit brief. [00:35:21] Speaker 04: He was cited in the brief, yes, Your Honor. [00:35:23] Speaker 06: So he was clearly a member of this class? [00:35:28] Speaker 04: That's not what the Eighth Circuit brief and the citation to it say, Your Honor. [00:35:32] Speaker 06: So why cite it to support your argument that the class was too broad? [00:35:38] Speaker 04: Well, ultimately, the citations in the Eighth Circuit brief were [00:35:44] Speaker 04: to essentially make the broad argument about the evidence that the plaintiffs had submitted in support of class certification and not being sufficient to support class certification. [00:35:56] Speaker 02: Is it your position that your client did not advance a different argument in the Eighth Circuit, is not taking an inconsistent position? [00:36:04] Speaker 04: There was no inconsistent position. [00:36:06] Speaker 02: Your best shot at that. [00:36:07] Speaker 02: This is important to me. [00:36:08] Speaker 02: And I might just be one vote on this point, but I'm really concerned about asserting a different position before the Eighth Circuit and the Ninth Circuit. [00:36:14] Speaker 02: So I'd like to hear your response. [00:36:16] Speaker 04: Absolutely. [00:36:16] Speaker 04: There was no different position asserted. [00:36:19] Speaker 04: There were general references to the size of the class being over 7,000 people. [00:36:26] Speaker 04: There is a difference between [00:36:28] Speaker 04: 7,000 and the 7,700 plus. [00:36:31] Speaker 02: I don't want to take up a whole lot of your time, but the question that I need you to really answer is, was it your position that one reason the class was improperly certified is because these folks were included? [00:36:43] Speaker 02: That was my read of it. [00:36:46] Speaker 02: Why am I wrong? [00:36:50] Speaker 04: Ultimately, Union Pacific didn't take the position of the East Circuit with respect to these individually named plaintiffs. [00:36:58] Speaker 04: the appellants here today, and whether or not they fell underneath the class definition that was certified by the district court. [00:37:06] Speaker 04: That's not the position they took. [00:37:08] Speaker 04: And also, with respect to your judicial estoppel question earlier, that you asked Mr. Wessler, there have been no judicial estoppel arguments raised in any of these cases that the district court considered. [00:37:19] Speaker 06: In these three cases? [00:37:21] Speaker 06: Correct. [00:37:21] Speaker 06: There have been in other cases, right? [00:37:23] Speaker 06: There's nationwide litigation and fallout of the Harris D. certification, right? [00:37:28] Speaker 04: Correct. [00:37:29] Speaker 04: For example, there was a judicial sample argument raised in the Zaragoza case that's currently before the Fifth Circuit. [00:37:36] Speaker 04: The district court rejected that argument in that particular case. [00:37:40] Speaker 03: So getting back to the reportable health event, as I listen to your argument, it seems that you're arguing that anyone with a preexisting condition that is not diagnosed falls outside that definition. [00:37:56] Speaker 03: It's not a reportable health event when diagnosed. [00:37:58] Speaker 03: Is that your position? [00:38:02] Speaker 03: No, Your Honor, because they're... Because here you have a... He gets a new diagnosis that's different. [00:38:08] Speaker 03: Why does that not fall under the definition? [00:38:12] Speaker 04: Because he hasn't received and none of these appellants have received a new diagnosis that's different. [00:38:17] Speaker 04: They've all previously failed the Ishihara kind of routinely as their FRA certifications come up. [00:38:25] Speaker 04: And that in and of itself demonstrates that they have a color vision deficiency. [00:38:32] Speaker 04: in and of itself. [00:38:33] Speaker 03: Let's put it in the context of circulation. [00:38:37] Speaker 03: You say you get a diagnosis of high cholesterol, and then finally the doctor says, well, you know, now we really need to do something about it. [00:38:46] Speaker 03: And the worker says, OK, I'm telling you that now I've got a new diagnosis, even though I have a pre-existing condition. [00:38:54] Speaker 03: I'm not sure I see a difference in that scenario from what you're describing. [00:38:59] Speaker 03: Well, in the scenario that you're... Again, undiagnosed pre-existing condition. [00:39:04] Speaker 04: In the scenario you are describing, though, Your Honor, the condition has progressed in some way that it's become more serious. [00:39:13] Speaker 06: And... Is that necessarily going to be the case? [00:39:16] Speaker 06: Is that necessarily going to be the case? [00:39:18] Speaker 06: I mean, imagine different biopsies produce different results. [00:39:23] Speaker 06: Maybe one of them was wrong, right? [00:39:28] Speaker 06: There doesn't have to be an underlying physical change that produces different test results, does it? [00:39:35] Speaker 04: It depends on the type of nature of the condition because the reportable health event definition under Unipacific's medical rules is different with respect to vision than it is, for example, for somebody that has a heart attack or has a seizure or has epilepsy or things like that. [00:39:52] Speaker 04: Within the definition for a vision issue, it requires a significant change. [00:39:58] Speaker 02: I think that's right. [00:39:59] Speaker 02: As I said, I have connected those dots by drilling down to the definition. [00:40:03] Speaker 02: I appreciate that argument. [00:40:04] Speaker 02: What I'm trying to figure out is marrying this up to the rule in American Pipe and the purpose and how an individual employee is supposed to [00:40:13] Speaker 02: know that. [00:40:15] Speaker 02: We need a bright line rule. [00:40:16] Speaker 02: That's what American Pipe talks about. [00:40:19] Speaker 02: One that's going to be workable for folks. [00:40:21] Speaker 02: And so are we really, it seems to me you're asking us to adopt a rule where individual employees are going to have to drill down. [00:40:30] Speaker 02: And worse, in my view, and I want to give you a chance to respond to this, practitioners would really be obligated to tell their clients, you better go file because I can't tell. [00:40:38] Speaker 02: I can't tell if it's unambiguous. [00:40:42] Speaker 02: And that's exactly what we don't want [00:40:44] Speaker 02: have because we're aiming for an efficient way to process these claims. [00:40:48] Speaker 02: So what is your response to that? [00:40:51] Speaker 04: Absolutely. [00:40:51] Speaker 04: Well, I think to get to the Bright-Rawlin rule, we have to think through what is the purpose of the class definition in a class action. [00:40:59] Speaker 04: The class definition is ultimately what the district court uses to determine, based on objective nature of the class definition, whether any given individual person falls within that class. [00:41:14] Speaker 04: And so to have a bright line rule that says when the named plaintiffs abandon or change that class definition, [00:41:26] Speaker 04: the unnamed absent class members are on constructive notice of that change is wholly consistent with American Pipe because it's no different than... You know, it might be with a different definition that didn't require this drill down. [00:41:42] Speaker 02: I can imagine a situation where that would be really fair if a class definition is unambiguous. [00:41:48] Speaker 02: This one strikes me as requiring a microscope. [00:41:51] Speaker 02: And it also seems entirely counterintuitive to me that failing the light cannon is not a reportable health event. [00:41:57] Speaker 02: So that's the problem I've got with applying your proposed rule to this particular case. [00:42:03] Speaker 04: But I think that ultimately, Your Honor, there's no difference. [00:42:06] Speaker 04: Because whether the class definition turns on a time period that somebody doesn't fall within or a geographical limitation that somebody doesn't fall in, or in this case, [00:42:20] Speaker 04: the meaning of, as a result of a reportable health event, an individual absent class member can understand and determine whether or not they fit within that definition. [00:42:33] Speaker 02: Appreciate your argument, counsel. [00:42:34] Speaker 04: Thank you, your honor. [00:42:35] Speaker 04: If there are no further questions, I'll turn it over to my colleagues. [00:42:38] Speaker 02: There are. [00:42:38] Speaker 02: We'll hear from co-counsel. [00:42:40] Speaker 02: Thank you. [00:42:53] Speaker 05: significant difference in height here. [00:42:56] Speaker 02: I have the same issue with podiums. [00:42:58] Speaker 02: So you're, you're, um, representing which party? [00:43:03] Speaker 05: Uh, which, uh, claim? [00:43:05] Speaker 02: The, uh, Blankenship? [00:43:06] Speaker 05: District of Arizona Blankenship. [00:43:08] Speaker 02: Thank you. [00:43:08] Speaker 02: I just need to get to my correct notes. [00:43:10] Speaker 02: Go right ahead. [00:43:11] Speaker 05: Sure. [00:43:17] Speaker 05: May it please the court. [00:43:18] Speaker 05: My name is Scott Moore and I represent the Appellant Union Pacific Railroad Company. [00:43:22] Speaker 05: I'd like to address some of the questions that have come up so far with regard to a couple issues. [00:43:29] Speaker 05: With regard to the A Circuit Harris case and what was argued, we point out that the Donahue Declaration was submitted by Plaintiff's Council, the same council that represents Donahue right now. [00:43:42] Speaker 05: And that was submitted for purposes of adequacy of representation, which Unipacific didn't challenge. [00:43:47] Speaker 05: Unipacific challenged the issue that ultimately prevailed. [00:43:52] Speaker 05: And that issue was with regard to commonality, typicality. [00:43:57] Speaker 05: in an ADA case, that the different positions, the different medical conditions, the different accommodations that would be involved, it was impossible to certify a class like that. [00:44:07] Speaker 05: I don't believe there was ever an argument that they wouldn't have been adequately represented by the CAF. [00:44:12] Speaker 06: For these purposes, though, the question is how Mr. Donahue would have reasonably perceived his status vis-a-vis the class. [00:44:20] Speaker 05: Thank you, Judge Hamilton. [00:44:21] Speaker 05: And I think it's very important to look at this in the context of this is an equitable right to take them out of the statute of limitations rule here. [00:44:28] Speaker 05: And there was no class notice sent out that any of these plaintiffs received class notice and said, hey, I'm in a class action here. [00:44:37] Speaker 05: This was simply an issue of narrowing the class definition and taking them out of that definition. [00:44:44] Speaker 05: And it's a fiction to believe that any employee out there needs to look at a federal docket to determine, was this class certified? [00:44:51] Speaker 05: Was it not certified? [00:44:53] Speaker 06: Well, your position though is that they should have, right? [00:44:56] Speaker 05: Well, that's true in any case, correct? [00:44:59] Speaker 05: After it's decertified, then that employee would have to know that it's decertified. [00:45:04] Speaker 05: So putting it on that employee to know what's going on in any judicial proceedings is the problem and the subjectivity. [00:45:12] Speaker 02: Well, just to be . [00:45:13] Speaker 02: . [00:45:13] Speaker 02: . [00:45:13] Speaker 02: Forgive me for interrupting. [00:45:14] Speaker 02: Sure. [00:45:14] Speaker 02: Just to be clear, the district court ordered the notice to be sent, but it wasn't sent. [00:45:18] Speaker 02: Is that right? [00:45:18] Speaker 05: That's correct. [00:45:20] Speaker 02: It didn't get out the door. [00:45:20] Speaker 05: That's correct. [00:45:22] Speaker 05: And the class list is a fiction. [00:45:23] Speaker 05: They keep using that. [00:45:24] Speaker 05: But over and over again, we've pointed in the record they've had to apologize and withdraw that from several district courts. [00:45:30] Speaker 05: That was very clearly construed as over-inclusive. [00:45:34] Speaker 05: The way to have a bright line rule here is to focus on the definition of the class. [00:45:38] Speaker 05: That's the only objective way to look at this. [00:45:41] Speaker 05: So if we're looking for a rule that we can rely on, that Judge, you can rely on, we need to look at the definition of the class. [00:45:47] Speaker 05: The class was very clearly narrowed by these attorneys at their own behest. [00:45:53] Speaker 05: And so I want to talk about that for him because everything else is subjective. [00:45:56] Speaker 05: Picking apart the record in Harris to determine all of these issues, quite frankly, doesn't give this court a bright line rule. [00:46:04] Speaker 02: Right. [00:46:04] Speaker 02: So if you go back, because I think you have a strong argument that we ought not to be looking at evidence that was submitted on reconsideration. [00:46:10] Speaker 02: So for purposes of one vote, I think that's a strong and persuasive argument. [00:46:15] Speaker 02: But I'm still looking for a rule that is workable. [00:46:17] Speaker 02: Sure. [00:46:18] Speaker 02: And I can imagine a case where the class definition [00:46:22] Speaker 02: much easier and requires much less parsing. [00:46:26] Speaker 02: I'm worried about individuals who are going to have their rights lost because they couldn't predict accurately whether or not they're included in that class and that the result would be plaintiff's lawyers really having to advise folks that they really have to file because they can't tell. [00:46:43] Speaker 05: Well, certainly if there is ambiguity, [00:46:48] Speaker 05: with regard to that. [00:46:49] Speaker 05: The question is, does that fall under American pipe and that clear rule? [00:46:53] Speaker 05: Here, there was no ambiguity. [00:46:55] Speaker 05: And I want to talk about the reportable health events quickly to clarify that for you, Your Honor. [00:47:00] Speaker 05: Reportable health events, the definition tells it. [00:47:03] Speaker 05: That is, an employee has something that occurs in their health condition that they have to report that the railroad would not otherwise know, right? [00:47:11] Speaker 02: Does it say the railroad would not otherwise know? [00:47:13] Speaker 05: It does not in the specific, but it says reportable health event. [00:47:16] Speaker 02: Well, but that's really important. [00:47:18] Speaker 02: That's really important. [00:47:19] Speaker 02: Absolutely it is. [00:47:19] Speaker 02: Because Ishahara the railroad would know. [00:47:21] Speaker 02: That's the tri-annual, right? [00:47:23] Speaker 05: And that's exactly why it takes it out of reportable health events. [00:47:26] Speaker 05: Union Pacific doesn't need an employee to report. [00:47:29] Speaker 05: that they failed the Ishihara, which all these plaintiffs had done in the past. [00:47:33] Speaker 05: The reportable health events policy is there, so if an employee has a change in condition that Union Pacific was not aware of, and it may affect their ability to safely do the job, that it's incumbent on the employee to report that condition. [00:47:46] Speaker 02: What does it say that Union Pacific was not aware of? [00:47:50] Speaker 05: Union Pacific was not aware of any change in the condition. [00:47:53] Speaker 02: Where is that in the definition of reportable health event? [00:47:57] Speaker 05: that if we're gonna focus right on the definition, the definition says a change in the condition or a progression in the condition, that the employee has a change in their health condition in one of those categories, they have to report that. [00:48:11] Speaker 02: Right, so to be clear, I think it's you're the one who wants me to look exactly at the language, right? [00:48:15] Speaker 05: Absolutely. [00:48:16] Speaker 02: And those words aren't in there that Union Pacific wouldn't otherwise know. [00:48:19] Speaker 05: Yeah, well, so let's talk about that, yes. [00:48:23] Speaker 05: Yes. [00:48:23] Speaker 05: Okay. [00:48:23] Speaker 05: But the question is, what's reportable? [00:48:26] Speaker 05: This is not a reportable health event because everything Union Pacific did was under the guise of the FRA safety regulations. [00:48:32] Speaker 05: It's one of the few FRA regulations that regulate health and safety, and that's vision and color. [00:48:38] Speaker 05: They would not be doing it unless it was regulatory required. [00:48:42] Speaker 02: I absolutely appreciate that. [00:48:44] Speaker 02: And there are several district court judges who agreed with you. [00:48:46] Speaker 02: My problem is taking a step back. [00:48:48] Speaker 02: And as I said, I can connect those dots by drilling down. [00:48:51] Speaker 02: But what about the workable rule? [00:48:53] Speaker 02: And then I'm going to quit beating this dead horse, but that's my concern. [00:48:57] Speaker 02: How is a worker who lost his job here supposed to know that that's failing the Nishihara is not a reportable health event? [00:49:05] Speaker 05: Because it's very clear that they had no change in their health condition. [00:49:09] Speaker 03: Why do you say that? [00:49:10] Speaker 03: The definition includes new diagnosis. [00:49:13] Speaker 05: There was no new diagnosis, Your Honor. [00:49:16] Speaker 03: They failed a different test. [00:49:18] Speaker 02: Why isn't it an event? [00:49:20] Speaker 02: The definition includes this event. [00:49:21] Speaker 02: Other event, yeah. [00:49:22] Speaker 02: And that event is what caused this person to just lose his job. [00:49:25] Speaker 02: He used to be compliant with the federal vision requirements, and now he's not. [00:49:29] Speaker 03: Why is that not an event? [00:49:31] Speaker 05: That's not a health event. [00:49:33] Speaker 05: That is the NTSB required Union Pacific to change that test because three people died in a head-on collision outside of Goodwill, Oklahoma. [00:49:44] Speaker 05: And these plaintiffs are saying that we passed the old test, so this court should put them back in a locomotive. [00:49:50] Speaker 02: That's different. [00:49:50] Speaker 02: That's the argument. [00:49:51] Speaker 02: That goes back to the law clerk argument. [00:49:52] Speaker 02: We're not here about the merits. [00:49:54] Speaker 02: We're trying to figure out just whether they get into court, just whether they're tolling. [00:49:58] Speaker 02: And I'm not pushing back on whether these are safety-sensitive jobs at all. [00:50:03] Speaker 05: So the point being is we think that the only objective way to make this determination is to look at the actual definition. [00:50:12] Speaker 05: If we start to look outside of that actual definition of what an individual employee knew at a particular time or not, wouldn't that erode the entire rule? [00:50:22] Speaker 05: Because an employee could come forward and say, well, Judge, you're telling me to monitor the docket all the time. [00:50:26] Speaker 05: And I didn't know that it was decertified. [00:50:30] Speaker 05: So that was unfair to me because that was something that [00:50:33] Speaker 05: that an employee shouldn't have to look at Pacer every day. [00:50:37] Speaker 05: So that fiction, I think, is what takes it out here. [00:50:40] Speaker 05: What we need to focus on, the only objective way to look at this is to look at the definition and what it says. [00:50:45] Speaker 06: OK, so the class definition uses the phrase reportable health event. [00:50:50] Speaker 06: Yes. [00:50:50] Speaker 06: Not defined. [00:50:52] Speaker 06: So the employee has to know, oh, that's a reference to this internal policy that Union Pacific has, right? [00:51:00] Speaker 05: It's not an internal policy, it's published for the employees to know what's part of it. [00:51:03] Speaker 06: But you have to know that that's what it means, right? [00:51:07] Speaker 06: Sure. [00:51:08] Speaker 06: Okay, and then that's phrased, everybody's playing a little bit with the language, I think I've got this right, any new diagnosis, recent events, and or change in the following conditions, right? [00:51:20] Speaker 06: So let me give you, go back to my hypothetical that I addressed to your colleague. [00:51:24] Speaker 06: or addressed to plaintiffs. [00:51:26] Speaker 06: Suppose, in your case, Mr. Blankenship had gone to a private doctor for a vision test, flunks an Ishihara test given by a private doctor. [00:51:36] Speaker 06: Is that something he needs to report to Union Pacific? [00:51:38] Speaker 05: Absolutely not. [00:51:39] Speaker 05: It's not a change in condition whatsoever. [00:51:41] Speaker 06: So you'd be perfectly fine if he doesn't report that and then the next week causes a derailment because he missed a signal. [00:51:51] Speaker 05: We absolutely would not be okay with that. [00:51:53] Speaker 06: But the tri-annual testing... But whether he failed to report that recent test. [00:52:01] Speaker 06: That doesn't count as a recent event. [00:52:03] Speaker 05: that does not because we would have known if he failed the ishihara when he was hired in the first place he's required to go through that testing when he's hired in the first place and try annually thereafter under the federal regulations so that would not be a change in condition that he had because in the in this case when they're challenging color vision that is a hereditary [00:52:24] Speaker 05: condition. [00:52:24] Speaker 05: It is not like, for example, we've had folks that went through the vision testing under federal law but glaucoma or some change in their health condition resulted in them not being able to distinguish colors. [00:52:36] Speaker 05: Then they're pulled out [00:52:38] Speaker 05: and their medical records are looked at, they're in the fitness for duty process. [00:52:42] Speaker 05: In these individual cases, this is part of two tests, the first test and then the second test. [00:52:47] Speaker 05: There's no separate pulling them out for a fitness for duty evaluation as for a reportable health event if you have a stroke or something like that where you're taken out, your medical records are gathered, that's reviewed and we take it from there. [00:52:59] Speaker 05: This is all part of the regulatory testing. [00:53:02] Speaker 05: So that's why there's no change in condition. [00:53:05] Speaker 05: It's all related to the condition of the employee [00:53:07] Speaker 05: in the plain language of that diagnosis, an event, or something related to the health condition, not related to a testing mechanism that [00:53:22] Speaker 05: that doctors use to determine whether they have a change in that health condition. [00:53:26] Speaker 06: Would you agree with me, Mr. Moore, that in both Sawtell and Pennington, the Fourth and Tenth Circuits, I thought it was appropriate to look beyond the text of the definition in interpreting tolling in these kinds of situations? [00:53:42] Speaker 05: To a certain extent. [00:53:44] Speaker 06: I also agree that the American pipe and Sawtell and Pennington all insisted on something that these district judges did not, which was unambiguously excluding the plaintiff. [00:54:04] Speaker 05: That is clear. [00:54:05] Speaker 05: Yeah, that is very clear. [00:54:06] Speaker 05: Thank you. [00:54:06] Speaker 05: But again, we would say that this is an equitable doctrine, so it is on the burden to show the equities there. [00:54:13] Speaker 05: We're taking it out of [00:54:14] Speaker 05: They've missed their statute of limitations here. [00:54:16] Speaker 05: They've missed that. [00:54:17] Speaker 05: The question is, does it fall within that equitable doctrine? [00:54:21] Speaker 06: Right. [00:54:21] Speaker 06: It's an equitable doctrine, but we also don't want to be adopting [00:54:25] Speaker 06: interpretations of the Supreme Court's rule as an American pipe that mean that all the benefits of collective litigation under class actions are lost. [00:54:35] Speaker 06: Sure, sure. [00:54:36] Speaker 06: Absolutely right. [00:54:36] Speaker 02: So speaking of statute of limitations, Mr. Moore, your time is up. [00:54:39] Speaker 06: Yeah, my time is up. [00:54:40] Speaker 02: You're well over your time. [00:54:41] Speaker 02: And so we'll hear from Mr. Walsh. [00:54:44] Speaker 02: Five minutes on the clock, please. [00:54:45] Speaker 02: Thank you for your argument. [00:54:46] Speaker 02: It's not your fault that you're over time. [00:54:48] Speaker 03: It's mine. [00:54:48] Speaker 03: Thank you for your argument. [00:54:49] Speaker 03: We gave you some tolling. [00:54:51] Speaker 07: Hopefully my time will be equitably extended. [00:54:55] Speaker 07: I'm Bill Walsh. [00:54:57] Speaker 07: I was counsel for Union Pacific on the DeFriese matter. [00:55:01] Speaker 07: I have a very short period of time, so I'd like to address something that was addressed at oral argument in the DeFriese matter. [00:55:09] Speaker 07: DeFriese is unique for a number of reasons, one of which is it was the only one of the three cases that actually had oral argument on it. [00:55:15] Speaker 07: And during oral argument, the judge asked, I thought, an insightful question. [00:55:19] Speaker 07: I want you to address for me the strategies that were employed with regard to [00:55:24] Speaker 07: certification and you've asked a lot of questions today about what happened at the Eighth Circuit and with regard to the position that the Union Pacific took. [00:55:32] Speaker 07: And Mr. Wessler, I invited you to take a look at what they did on that. [00:55:36] Speaker 07: But I would like to invite you to take a look at what the plaintiffs did on certification and the strategies that they employed. [00:55:43] Speaker 07: If you look at the first line of their briefing at both the district court level and the Eighth Circuit, they make it very clear from the beginning that they were focused on a single uniform policy. [00:55:55] Speaker 07: And that policy was the 1% rule. [00:55:57] Speaker 07: That basically is the rule that stands for the proposition that somebody who has suffered a condition that renders them a 1% or more probability risk for sudden incapacitation is not fit for duty. [00:56:12] Speaker 07: They were very specific about that is what we're focusing on. [00:56:15] Speaker 07: And that was key to their strategy for class certification because it simplified the issues. [00:56:21] Speaker 07: And it made it very easy for them to articulate that there were common issues among the class. [00:56:26] Speaker 07: And if you look at the specifics and the details they went into in terms of the process they were focused on, it was the 1% rule, which was based on basically a transportation administration standard. [00:56:44] Speaker 07: they were not focused on FRI certification, and there was no discussion whatsoever of that. [00:56:50] Speaker 07: There's a couple of exceptions that I know you'll think about, but if you look at all of the briefing, they were focused on that. [00:56:56] Speaker 07: They did not focus on Union Pacific's defenses related to the CVFT, to the color vision fitness test, the light cannon, to the FRI certification. [00:57:04] Speaker 07: They didn't address those defenses. [00:57:06] Speaker 07: They only focused on the defenses that were related to, again, the single uniform policy related to the 1% rule. [00:57:13] Speaker 07: So their own strategy betrayed the fact that they did not include these types of claims in their definition of what the class was. [00:57:23] Speaker 07: And in fact, when they did talk, and I said that there was a couple of exceptions where they talked very briefly about vision. [00:57:32] Speaker 07: When they listed the conditions that the class would include, they said, [00:57:38] Speaker 07: with regard to vision, significant vision change. [00:57:41] Speaker 07: They use the word change affecting, among other things, color vision. [00:57:48] Speaker 07: So they acknowledged, even in their reference to color vision, that they were talking about circumstances where the color vision is a condition of a change, not something that has happened over time. [00:58:02] Speaker 07: So I think what's good for the goose is good for the gander in terms of looking at what the parties did below. [00:58:08] Speaker 07: And I thought it was an insightful question by the magistrate because it really cuts through [00:58:15] Speaker 07: sort of this debate over the language and provides really sort of direct evidence that the plaintiffs themselves, the Harris plaintiffs themselves, clearly were excluding CVFT FRA certification analysis. [00:58:33] Speaker 07: So with regard to Mr. DeFries, I think it's obvious that he was colorblind from birth. [00:58:40] Speaker 07: Let me just address this issue of change, because I think that's kind of a key issue. [00:58:47] Speaker 07: There was no change in the analogy that Judge Hamilton, that you used with regard to the Ishahara test, or somebody goes to a private doctor and they had taken an Ishahara test and they fail it. [00:59:00] Speaker 07: What I would say is, in those circumstances, if they never failed one before, if the Union Pacific had no record of a previous Ishahara failure, and all of a sudden, for whatever reason, [00:59:13] Speaker 07: maybe some cardiovascular condition or whatever, this person all of a sudden has failed the Nishihara test, that would be a reportable event that I think the employee would have to come forward with, okay? [00:59:25] Speaker 02: Even if it happened at the doctor's office? [00:59:27] Speaker 07: I think of it happened at the doctor's office, and this is the important part, and it had never happened before. [00:59:33] Speaker 07: And the Union Pacific was not aware of it before. [00:59:36] Speaker 02: So you're reading Union Pacific's awareness back into the definition. [00:59:40] Speaker 07: No, I'm reading Union Pacific's reportable health event definition exactly the way Union Pacific does, which is placing an obligation on employees to report health events that arise that the railroad doesn't know about that may impact their fitness for duty. [00:59:56] Speaker 06: The phrase, the Union Pacific doesn't know about it, is not in that definition. [01:00:01] Speaker 06: It's much broader. [01:00:02] Speaker 06: New diagnosis, recent events, and or change. [01:00:05] Speaker 07: I think it's implied, Your Honor, in new diagnosis, change. [01:00:08] Speaker 06: Well, yes, implied, and that's where you get into trouble, where we're trying to draw a bright line and apply an unambiguous class definition. [01:00:18] Speaker 07: We're trying to apply equitable tolling to claims. [01:00:21] Speaker 07: Obviously, with regard to Mr. DeFries, he was aware on the day that he was placed on restrictions that he would no longer be able to work on his job. [01:00:29] Speaker 07: So his obligation to bring his claim independently certainly started that day. [01:00:35] Speaker 07: We're talking not about some [01:00:37] Speaker 07: significant hardship that arises because of equitable tolling. [01:00:40] Speaker 07: He already knew that he had to bring his claim. [01:00:42] Speaker 07: He already knew that he had suffered the consequences of the fitness for duty determination. [01:00:47] Speaker 07: My time is over. [01:00:48] Speaker 07: I don't want to indulge the court too much further unless you have questions. [01:00:51] Speaker 02: Were you finished with that question? [01:00:53] Speaker 06: I think so, yes. [01:00:54] Speaker 02: Thank you for your argument, counsel. [01:01:01] Speaker 02: You have six minutes for rebuttal. [01:01:03] Speaker 01: Thank you, Your Honor. [01:01:04] Speaker 01: I just have a few points, one narrow and then one a little bit broader. [01:01:09] Speaker 01: But on this question of what you heard Union Pacific say was you needed some kind of physical medical change in order to trigger a reportable health event or qualify as a reportable health event. [01:01:20] Speaker 01: If that were true, even the named plaintiff in Harris wouldn't qualify under that definition. [01:01:25] Speaker 01: Mr. Harris, who is not one of these plaintiffs, but was the named plaintiff in the underlying litigation, had epilepsy, but he had epilepsy for a long time and hadn't experienced any change in his condition. [01:01:38] Speaker 01: And so I think this idea that what Union Pacific is trying to do is chip away at and carve down this definition doesn't even work on its own terms, given the way that this underlying case was constructed, but just more broadly, [01:01:54] Speaker 01: I think it's important not to lose sight of the point of this doctrine in the first place, which is to put yourselves in the shoes of an absent class member. [01:02:02] Speaker 01: What is that person supposed to do while this class action is going on? [01:02:07] Speaker 01: Should they sit back and understand that the named plaintiffs are intending to protect their interest? [01:02:14] Speaker 01: Or should they find a lawyer and file their own case because their clock is ticking? [01:02:20] Speaker 01: And I would submit to you that regardless of these questions about well how broadly does this definition, how broadly should we construe it, how do we interpret this thing now in the light of this courthouse, an absent class member who is sitting back in 2017 or 2018 or 2019 trying to figure out what to do is being told by the named plaintiffs [01:02:48] Speaker 01: by the court and even by Union Pacific that they are within the class and to force that person to have to abandon the class and file some kind of protective lawsuit is exactly the opposite of what American pipe tolling was designed to do. [01:03:02] Speaker 01: There is no unfairness here from a statute of limitations perspective. [01:03:06] Speaker 01: of the claims against it, and who was within the class. [01:03:13] Speaker 01: The plaintiffs asserted that all of these people in this case were in the class, and the district court certified a class that included them. [01:03:21] Speaker 01: I think that's all that's necessary for this court to reverse, unless the panel has any further questions. [01:03:27] Speaker 02: It does not appear that we do. [01:03:28] Speaker 02: Thank you. [01:03:28] Speaker 02: Thank you all for your arguments today. [01:03:30] Speaker 02: Very helpful advocacy. [01:03:31] Speaker 02: We appreciate it. [01:03:32] Speaker 02: We will take that case under advisement.