Michael Nall v. BNSF Railway Company

I applaud the panel majority for withdrawing its earlier opinion in this matter ( 912 F.3d 263 ), for the reasons stated in footnote 6 of its revised opinion. Although I would still affirm the district court for the case-specific evidentiary reasons specified in my original dissent (but which are not independently worthy of en banc review) (see id . at 279-83), the panel majority has now wisely obviated the need for en banc rehearing in this case, by removing the process-based theory of liability that animated its earlier opinion. There is no basis for such a legal theory under the ADA, for…