Thursday, February 03, 2005

Nelson v. Thornburgh Lives

Disability law mavens know Nelson v. Thornburgh, 567 F. Supp. 369 (E.D. Pa. 1983), as an early, expansive interpretation of the duty to accommodate under the Rehabilitation Act. The court (per Judge Pollak) held that an employer (there the Pennsylvania welfare department) might be required to hire a reader for a blind employee (Nelson).

What many folks may not know (I certainly didn't) is that the case is still going on. This past Monday, the Third Circuit issued this decision in the latest round of the Nelson litigation. Nelson apparently settled his original case in 1993, and entered into a further settlement in 1995. Under these agreements, the state employer agreed to provide him with a reader and certain computer equipment. But in 1999, Nelson filed suit again; he alleged that the state continued to fail to accommodate him, in violation of the Rehabilitation Act, the ADA, and the settlement agreements. The district court dismissed that new suit. The apparent grounds were that the suit was in essence one to enforce the prior settlements. Because those settlements were not incorporated into court orders, they did not supply federal jurisdiction.

In its decision Monday, the Third Circuit reversed that dismissal. It agreed that the settlements did not create federal court jurisdiction. But it read Nelson's suit as asserting fresh claims under the Rehabilitation Act and ADA, which claims did support federal jurisdiction.


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