Kapche v. City of San Antonio

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

No. 00-50588

JEFF KAPCHE,

Plaintiff-Appellant,

VERSUS

CITY OF SAN ANTONIO,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

August 30, 2002

Before EMILIO M. GARZA and PARKER, Circuit Judges and HINOJOSA*,

District Judge.

Per Curiam:

In the second appeal of this case, Plaintiff-Appellant Jeff

Kapche (Kapche) asks that we review the order of the United

States District Court for the Western District of Texas granting,

for a second time, summary judgment for Defendant City of San

Antonio (City), again dismissing Kapche’s claims. For the

reasons that follow, we vacate the judgment of the district court

and remand for further proceedings consistent with this opinion.

*

District Judge of the Southern District of Texas, sitting

by designation.

I. Background

As the Court noted in the prior decision, Kapche v. City of

San Antonio, 176 F.3d 840 (5th Cir. 1999) (Kapche I), Kapche has

insulin-treated diabetes mellitus (ITDM).1 In 1994, he applied

for a law enforcement officer position with the San Antonio

Police Department (SAPD). Although Kapche passed both a written

test and a background check, the SAPD informed Kapche that he was

disqualified because of his ITDM. Kapche filed suit in part

under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-

213,(ADA). The district court granted summary judgment for the

City and dismissed the action finding that, as a matter of law,

Kapche was not qualified to be a police officer with the SAPD.

Kapche at 842. Kapche appealed.

In Kapche I, the only issue in dispute was whether, with or

without accommodation, Kapche was qualified to perform the

“essential functions” of an SAPD police officer under the ADA.

Id. at 843. After determining that driving was an essential

function of the SAPD job for which he applied, we turned to the

question of whether Kapche was qualified to perform the task of

driving. As we noted in Kapche I, the City could require that

Kapche not pose a “direct threat” to others in the workplace. Id.

citing 42 U.S.C. 12113(b). Kapche was a direct threat if he

1

Kapche I offers a more complete recitation of the facts.

2

posed a “significant risk to the health and safety of others that

[could not] be eliminated by reasonable accommodation.”2

Ordinarily, whether a person poses a direct threat is determined

through an individualized assessment of the person’s “present

ability to safely perform the essential functions of the job.”3

II. Analysis

In Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993),

cert. denied, 511 U.S. 1011, 114 S.Ct. 1386 (1994), and Daugherty

v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) cert. denied, 516

U.S. 1172, 116 S.Ct. 1263 (1996), we diverged somewhat in

relationship to ITDM from this individualized assessment

requirement. It was this divergence upon which the district

court initially relied in granting summary judgment.

Addressing a class action claim under the Rehabilitation

Act, 29 U.S.C. §§ 701-796, the Chandler case held that “as a

matter of law, a driver with insulin dependent diabetes...

presents a genuine substantial risk that he could injure himself

or others.” 2 F.3d at 1395. In Daugherty, we applied this

holding to a claim under the ADA. 56 F.3d at 698. With Chandler

and Daugherty, this Circuit appeared to abrogate the need to

2

42 U.S.C. § 12111(3)

3

29 C.F.R. § 1630.2(r)

3

conduct an individual assessment, at least in the case of persons

with ITDM applying for positions in which driving was an

essential function.

In Kapche I, 176 F.3d at 845, we acknowledged that the

Chandler decision itself tempered its holding with the following:

We nonetheless share the hope of the court in Davis [v.

Meese] that medical science will soon progress to the point

that "exclusions on a case by case basis will be the only

permissible procedure; or, hopefully, methods of control may

become so exact that insulin-dependent diabetics will

present no risk of ever having a severe hypoglycemic

episode." 692 F.Supp.[505, 520 (E.D.Pa.1988), aff'd, 865

F.2d 592 (3d Cir.1989)].

Chandler, 2 F.3d at 1395, n.52. (emphasis added). Given the

reliance of the Chandler and Daugherty decisions upon the

capabilities of medical science available and the federal highway

safety regulations in force at the point in time at which those

decisions were rendered, as had been contemplated by Chandler we

examined in Kapche I the continuing viability of this apparent

exception. Kapche, at 846-47.

We found that there was “a genuine dispute of material fact

regarding the safety risk posed by insulin-dependent drivers with

diabetes mellitus.” Id. In vacating the judgment and remanding

the case, we stated:

Consequently, we conclude, the time has come for a

reevaluation of the facts that supported our prior per se

holdings in Chandler and Daugherty. To this end, we vacate

the district court's grant of summary judgment in favor of

the City and remand for a determination whether today there

exists new or improved technology--not available at the time

4

these cases were decided--that could now permit insulin-

dependent diabetic drivers in general, and Kapche in

particular, to operate a vehicle safely.

Based on our de novo review of the summary judgment

evidence, we conclude that the City's physicians did not

conduct an individualized assessment of Kapche's present

ability to perform safely the essential functions of a

police officer. Therefore, if the district court finds a

sufficient factual basis for overcoming the per se rule of

Chandler/Daugherty, that court should open discovery (or

conduct a full blown merits trial) for a determination of

Kapche's qualification to perform all of the essential

functions of the job.

Also based on our de novo review, we conclude that

Kapche has failed to raise a genuine issue of material fact

whether the City violated its reasonable accommodation

obligation under the ADA. Thus, if the district court

should find a sufficient factual basis for concluding that,

without accommodation, insulin-dependent diabetic drivers

continue to pose a direct threat as a matter of law, the

court should reinstate summary judgment in favor of the

City.

Id.

Upon remand, Kapche and the City filed cross motions for

summary judgment addressing the matters raised in Kapche I.

Kapche argued that “blanket exclusions” are no longer viable, and

an individual assessment was required. The City contended

Chandler and Daugherty should continue to control; even under a

partial or full retreat from Chandler and Daugherty, candidates

with ITDM would not be qualified without accommodation; and even

if the per se rule should no longer apply, Chandler was

controlling at the time Kapche applied, rendering him

unqualified.

In the Order addressing the parties’ motions and the mandate

of Kapche I, the district court again granted judgment for the

5

City and denied Kapche’s motions for summary judgment. The

district court declined to examine the continuing viability of a

per se rule as applied to persons with ITDM or to Kapche in

particular. Instead, the district court held that, at the time

Kapche applied for a position with the SAPD, the per se rule from

Chandler and Daugherty was controlling Fifth Circuit law.

Therefore, the district court concluded, the City was justified

in rejecting Kapche’s application. Any consideration of whether

such a rule continued to be viable, the district court

maintained, would be merely advisory in nature. The district

court again dismissed the action without addressing the merits of

whether Kapche was qualified to perform the essential functions

of an SAPD police officer. Again, Kapche appeals.

We initially note here that a district court on remand is

not free to disregard the “explicit directives” of the appellate

court. U.S. v. Becerra, 155 F.3d 740, 752-53 (5th Cir. 1998).

Because this case reaches us on appeal for the second

time, we must consider the implications of our prior opinion

in Leal and the well-settled "law of the case" doctrine.

"Under the 'law of the case' doctrine, an issue of law or

fact decided on appeal may not be reexamined either by the

district court on remand or by the appellate court on a

subsequent appeal." Illinois Cent. Gulf R.R. v.

International Paper Co., 889 F.2d 536, 539 (5th Cir.1989)...

The law of the case doctrine, however, is not inviolate. We

have explained that "a prior decision of this court will be

followed without re-examination ... unless (i) the evidence

on a subsequent trial was substantially different, (ii)

controlling authority has since made a contrary decision of

the law applicable to such issues, or (iii) the decision was

clearly erroneous and would work a manifest injustice."

North Mississippi Communications, Inc. v. Jones, 951 F.2d

6

652, 656 (5th Cir.1992); see also City Pub. Serv. Bd. v.

General Elec. Co., 935 F.2d 78, 82 (5th Cir.1991); Lyons v.

Fisher, 888 F.2d 1071, 1074 (5th Cir.1989); Daly v. Sprague,

742 F.2d 896, 901 (5th Cir.1984).

A corollary of the law of case doctrine, known as the

mandate rule, provides that a lower court on remand must

"implement both the letter and the spirit of the [appellate

court's] mandate," and may not disregard the "explicit

directives" of that court. See Johnson v. Uncle Ben's, Inc.,

965 F.2d 1363, 1370 (5th Cir.1992). "The mandate rule simply

embodies the proposition that 'a district court is not free

to deviate from the appellate court's mandate.'" Barber v.

International Bhd. of Boilermakers, 841 F.2d 1067, 1070

(11th Cir.1988) (quoting Wheeler v. City of Pleasant Grove,

746 F.2d 1437, 1440 n. 2 (11th Cir.1984)); see also Harris

v. Sentry Title Co., 806 F.2d 1278, 1279 (5th Cir.1987) ("It

cannot be disputed that 'when the further proceedings [in

the trial court] are specified in the mandate [of the Court

of Appeals], the district court is limited to holding such

as are directed.'")(alterations in original)(quoting 1B

MOORE'S FEDERAL PRACTICE ¶ 0.404(10), at 172 (1984));

Newball v. Offshore Logistics Int'l, 803 F.2d 821, 826 (5th

Cir.1986) (holding that "a mandate controls on all matters

within its scope").

Id.

Although the district court failed to explicitly identify

upon which grounds it decided to neglect the mandate of Kapche I,

it appears the only applicable reason is that the district court

believed we were clearly erroneous in our instruction to the

district court. The district court found that there was no

controlling law contrary to Chandler and Daugherty, that the

district court was not free to overrule Chandler and Daugherty,

and that Kapche was not qualified when he applied in 1994. While

the district court identified that Sutton v. United Air Lines,

Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), bore

7

some relevance, it failed to accord Sutton any degree of

authority over the present action.4 We must address whether the

district court was correct to ignore our earlier mandate and

whether summary judgment was properly granted for the City.

As we noted above, Chandler and Daugherty presented an

exception. It is significant to note here that neither Chandler

nor Daugherty ever explicitly mention the term individual

assessment, despite its use in the regulations and in case law

surrounding the Rehabilitation Act and the ADA. More recent

decisions of the United States Supreme Court now render the per

se rule of Chandler and Daugherty inapplicable to the present

case. Four such intervening cases speak to an individual

assessment requirement.

The Sutton case guides us here with its acknowledgment that

individualized inquiries are mandated by the ADA. 527 U.S. at

482-84. Sutton addressed whether a person need be judged in

light of any corrective or mitigating measures to determine

whether the person has a disability under the ADA. Id. In

Sutton, the petitioners, suffering from severe myopia but

4

Sutton did provide the City with a new grounds for summary

judgment. Kapche contends the City had conceded that Kapche’s

ITDM constituted a disability under the ADA. Following Sutton,

however, the City retreated from this position and moved for

judgment on the grounds that Kapche did not have a disability.

The district court granted Kapche’s request to add an allegation

that the City “regarded” Kapche as having a disability. The

court found that fact issues precluded judgment on that aspect.

8

corrected with lenses, sought employment as commercial airline

pilots. The Supreme Court held in part that the petitioners

failed to allege a disability under the ADA. Id. at 475-89.

While Sutton did not address the exact question here, it did

provide:

We conclude that respondent is correct that the

approach adopted by the agency guidelines--that persons are

to be evaluated in their hypothetical uncorrected state--is

an impermissible interpretation of the ADA. Looking at the

Act as a whole, it is apparent that if a person is taking

measures to correct for, or mitigate, a physical or mental

impairment, the effects of those measures--both positive and

negative--must be taken into account when judging whether

that person is "substantially limited" in a major life

activity and thus "disabled" under the Act....

* * *

The definition of disability also requires that

disabilities be evaluated "with respect to an individual"

and be determined based on whether an impairment

substantially limits the "major life activities of such

individual." § 12102(2). Thus, whether a person has a

disability under the ADA is an individualized inquiry. See

Bragdon v. Abbott, 524 U.S. 624, 641-642, 118 S.Ct. 2196,

141 L.Ed.2d 540 (1998) (declining to consider whether HIV

infection is a per se disability under the ADA); 29 CFR pt.

1630, App. § 1630.2(j) ("The determination of whether an

individual has a disability is not necessarily based on the

name or diagnosis of the impairment the person has, but

rather on the effect of that impairment on the life of the

individual").

The agency guidelines' directive that persons be judged

in their uncorrected or unmitigated state runs directly

counter to the individualized inquiry mandated by the ADA.

The agency approach would often require courts and employers

to speculate about a person's condition and would, in many

cases, force them to make a disability determination based

on general information about how an uncorrected impairment

usually affects individuals, rather than on the individual's

actual condition. For instance, under this view, courts

would almost certainly find all diabetics to be disabled,

because if they failed to monitor their blood sugar levels

and administer insulin, they would almost certainly be

substantially limited in one or more major life activities.

9

A diabetic whose illness does not impair his or her daily

activities would therefore be considered disabled simply

because he or she has diabetes. Thus, the guidelines

approach would create a system in which persons often must

be treated as members of a group of people with similar

impairments, rather than as individuals. This is contrary to

both the letter and the spirit of the ADA.

Id. at 482-84 (emphasis added).

In Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct.

2162, 144 L.Ed.2d 518 (1999), a case the district court did not

mention, the Supreme Court again addressed what constitutes a

disability under the ADA. In Albertson’s, the respondent was a

former commercial driver who lost his job due to his vision. The

respondent claimed his monocular vision was a disability under

the ADA. In declining to make any disability finding as to

monocularity as a matter of law, Albertson’s offered the

following relevant language:

Finally, and perhaps most significantly, the Court of

Appeals did not pay much heed to the statutory obligation to

determine the existence of disabilities on a case-by-case

basis. The Act expresses that mandate clearly by defining

"disability" "with respect to an individual," 42 U.S.C. §

12102(2), and in terms of the impact of an impairment on

"such individual," § 12102(2)(A). See Sutton, 527 U.S., at

483, 119 S.Ct. 2139; cf. 29 CFR pt. 1630, App. § 1630.2(j)

(1998) ("The determination of whether an individual has a

disability is not necessarily based on the name or diagnosis

of the impairment the person has, but rather on the effect

of that impairment on the life of the individual"); ibid.

("The determination of whether an individual is

substantially limited in a major life activity must be made

on a case by case basis").

Id. at 565-66 (emphasis added).

10

The Albertson’s case further acknowledges, as we did in

Kapche I, the Equal Employment Opportunity Commission’s (EEOC)

position that an individualized assessment is required under the

“direct threat” inquiry:

[The “direct threat”] criterion ordinarily requires "an

individualized assessment of the individual's present

ability to safely perform the essential functions of the

job," 29 CFR § 1630.2(r) (1998), "based on medical or other

objective evidence," Bragdon, 524 U.S., at 649, 118 S.Ct.

2196 (citing School Bd. of Nassau Cty. v. Arline, 480 U.S.

273, 288, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987)); see 29 CFR

§ 1630.2(r) (1998) (assessment of direct threat "shall be

based on a reasonable medical judgment that relies on the

most current medical knowledge and/or on the best available

objective evidence").

Id. at 569.

In PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879,

149 L.Ed.2d 904 (2001), the Supreme Court addressed, in part,

another section of the ADA, the requirement that a public

accommodation be reasonably modified for disabled individuals.

To comply with this command, an individualized inquiry must

be made to determine whether a specific modification for a

particular person's disability would be reasonable under the

circumstances as well as necessary for that person, and yet

at the same time not work a fundamental alteration.

Id. at 688 (emphasis added).

Finally of note, the Supreme Court more recently addressed

whether the diagnosis alone of carpal tunnel syndrome could

establish a disability under the ADA in Toyota Motor Mfg.,

Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151

L.Ed.2d 615 (2002). The Court again provided:

11

An individualized assessment of the effect of an

impairment is particularly necessary when the impairment is

one whose symptoms vary widely from person to person....

Given... large potential differences in the severity and

duration of the effects of carpal tunnel syndrome, an

individual's carpal tunnel syndrome diagnosis, on its own,

does not indicate whether the individual has a disability

within the meaning of the ADA.

Id. 122 S.Ct. at 692.(emphasis added; citations omitted).

These intervening Supreme Court cases consistently point to

an individualized assessment mandated by the ADA under various

sections of the Act. We further note that we are unaware of any

decision from our sister Circuits abrogating the requirement of

an individualized assessment in favor of a per se exclusion under

the ADA.

While a court is to apply the law in effect at the time it

renders its decision, see Bradley v. School Bd. of City of

Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974),

intervening Supreme Court decisions apply to cases on appeal. See

Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 282

(5th Cir. 1999) citing Harper v. Virginia Dept. of Taxation, 509

U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993). We find

that, upon the prior remand of this action, the district court

erred in failing to apply Sutton, presently reinforced by

Albertson’s, Martin, and Toyota.

In Kapche I, we determined that the City had not conducted

an individualized assessment of Kapche’s ability to perform the

12

essential functions of an officer with the SAPD. We note that

one aspect of relief sought by Kapche was reinstatement as a

candidate. While the district court maintained that since Kapche

applied in 1994, a time in which Chandler and Daugherty

controlled, the matter would be moot, we hold that the

alternative relief sought by Kapche of reinstatement as a

candidate renders the City’s failure to assess Kapche’s abilities

on an individual basis as stating a claim of a present and

continuing violation of the ADA.5

We note here that the district court misinterpreted Kapche

I. The mandate did not require the district court to overturn

Fifth Circuit law. The district court was merely instructed to

address whether, under the facts presented by the parties herein,

the temporally limited holdings of Chandler and Daugherty could

continue to apply to Kapche. Such an interpretation conveys the

letter and the spirit of the mandate in a manner the district

court should have adopted. The parties presented evidence in

conjunction with renewed motions for summary judgment consistent

with the mandate of Kapche I.

We briefly note that Kapche presented evidence of such

medical advancements as portable glucose monitors, routine

5

This holding does not prevent the district court from

making the determination upon remand that since Chandler

controlled at the time of Kapche’s application in 1994, he may

not be entitled to backpay and compensatory damages.

13

hemoglobin testing, improved insulin delivery systems, and

improved insulin to the district court. Kapche further argued

that his own condition now warranted a finding he is able to

safely perform the essential function of an SAPD police officer.

Kapche also pointed to changes in various federal employment

“protocols,” which now require persons with diabetes be

considered on a case by case basis. The City fails to refute

these contentions in any meaningful manner. Neither party,

however, addresses the means in which this Court, without

findings from the district court, considers said evidence and

makes a finding as to whether the per se rule of Chandler and

Daugherty continues to be viable without reference to the

intervening Supreme Court cases.

As we have previously instructed the district court on this

matter, the appropriate action at this point would appear to

involve the issuance of a writ of mandamus, compelling the

district court to comply with our prior mandate. See, e.g. In re

Chambers Development Co., Inc., 148 F.3d 214 (3rd Cir. 1998).

However, no petition for such a writ of mandamus was presented to

this Court on this matter. As the issue has been resolved by

intervening Supreme Court case law, the prior mandate need not be

further addressed.

III. Conclusion

14

For the reasons stated above, we hold that an individualized

assessment of Kapche’s present ability to safely perform the

essential functions of an SAPD police officer is required. We

again VACATE the district court’s grant of the City’s motions for

summary judgment and the denial of Kapche’s motions for summary

judgment. In accordance with the mandate of Kapche I, we REMAND

the action for the district court to determine whether, under an

individualized assessment, Kapche could perform the essential

functions of an SAPD police officer. The district court may make

any other determinations or conduct any proceedings consistent

with the rulings herein.6

6

Although Kapche asks that we consider and grant judgment

upon his claims that he is able to perform the essential

functions of an SAPD police officer and that the City regarded

Kapche as disabled, we believe the district court is the

appropriate forum to first consider the merits of these claims.

15