# James Johnson v. K Mart Corporation

> Court of Appeals for the Eleventh Circuit · December 19, 2001 · 273 F.3d 1035

URL: https://www.frixlaw.com/law-library/cases/9494601

## Case

- **Full name:** James JOHNSON, Plaintiff-Appellant, v. K MART CORPORATION, Defendant-Appellee
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** December 19, 2001
- **Citations:** 273 F.3d 1035; 12 Am. Disabilities Cas. (BNA) 1120; 2001 U.S. App. LEXIS 26920; 2001 WL 1480295
- **Precedential status:** Published
- **Opinion:** Dissent by Carnes
- **Judges:** Carnes, Barkett, Pollak, Anderson, Tjoflat, Edmondson, Birch, Dubina, Black, Hull, Marcus, Wilson
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9494601

## How later opinions describe it (automated extraction)

- concluding that such disparity in disability coverage constitutes unlawful discrimination prohibited by Title I because it imposes a benefits limitation that is contingent on the kind of disability the former employee has
- explaining that the majority in Olmstead “substantially imported] the definition of Title I into Title II”
- finding that ADA prohibits a distinction in benefit payments between mental and physical disabilities

## Opinion text

CARNES, Circuit Judge,
dissenting:
The threshold question in this case is whether a former employee is eligible to file suit against his erstwhile employer under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 (a), or is that right and remedy confined to current employees or applicants. As the majority concedes, a prior decision of this Court, Gonzales v. Garner Food Services, Inc., 89 F.3d 1523 (11th Cir.1996), cert. denied, 520 U.S. 1229 , 117 S.Ct. 1822 , 137 L.Ed.2d 1030 (1997), squarely answers that question with the holding that a former employee may not sue under the ADA, any remedy under the Act being confined to current employees or applicants. The majority does not pretend that the Gonzales decision, which is directly on point, has ever been overruled by the Supreme Court, by this Court sitting en banc, or by Congress. Yet the majority refuses to follow Gonzales.
The only reason the majority gives for not following the law of the circuit as established in Gonzales, is the Supreme Court’s later decision in Robinson v. Shell Oil Co., 519 U.S. 337 , 117 S.Ct. 843 , 136 L.Ed.2d 808 (1997). The Robinson case, however, arose and was decided under Title VII, not the ADA, and the two statutes have different language and different legislative histories. The Supreme Court in Robinson did not purport to overrule Gonzales or to establish any law about the ADA. And the majority does not contend that Robinson addressed any ADA issues or that it purported to overrule Gonzales. Because I think that the majority’s action violates the prior panel precedent rule, which requires that we follow the Gonzales decision unless and until it is overruled by *1066 the Supreme Court or this Court sitting en banc, I dissent.
The prior panel precedent rule is an essential principle, the number one ground rule, by which all of us on this Court must abide. It helps keep the peace, stabilizes our circuit law, and promotes efficiency by enabling us to move on once issues have been decided by a panel. See generally Bonner v. City of Prichard, 661 F.2d 1206, 1209-10 (11th Cir.1981) (en banc) (deciding to have Eleventh Circuit panels bound by all pre-split Fifth Circuit decisions, because “[s]tability and predictability are essential factors in the proper operation of the rule of law”); Jaffree v. Wallace, 705 F.2d 1526, 1533 (11th Cir.1983), aff'd, 472 U.S. 38 , 105 S.Ct. 2479 , 86 L.Ed.2d 29 (1985) (“Judicial precedence serves as the foundation of our federal judicial system. Adherence to it results in stability and predictability.”). Those important goals are achieved because, and only to the extent that, the prior precedent rule requires a later panel to follow a prior one’s decision even though convinced it is wrong. See generally Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir.2000), cert. denied, 531 U.S. 957 , 121 S.Ct. 381 , 148 L.Ed.2d 294 (2000) (“[T]he prior panel precedent rule is not dependent upon a subsequent panel’s appraisal of the initial decision’s correctness.”); United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir.1998) (en banc) (“Under our prior precedent rule, a panel cannot overrule a prior one’s holding even though convinced it is wrong.”) (quoting Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.1997)).
Our allegiance to the prior precedent rule, as well as the proper corrective mechanism for purging our circuit law of earlier panel errors, is illustrated in two cases that resulted in en banc decisions earlier this year. One is Saxton v. ACF Industries, Inc., 239 F.3d 1209 (11th Cir. 2001), rev’d en banc, 254 F.3d 959 (11th Cir.2001). The panel in that case dutifully followed an earlier one’s holding even though convinced it was wrong. See 239 F.3d at 1215. Then rehearing en banc was promptly granted and, in a decision written by the author of the second panel’s decision, 254 F.3d at 959 , the en banc court overruled the first panel’s erroneous decision, id. at 963-66 . The same thing happened in Turner v. Beneficial Corp., 236 F.3d 643 (11th Cir.2000), rev’d en banc, 242 F.3d 1023 (11th Cir.2001), cert. denied, — U.S. -, 122 S.Ct. 51 , 151 L.Ed.2d 21 (2001). The panel in that case also followed a prior panel’s decision even though convinced the earlier panel had overlooked controlling statutory language that dictated a different result. 236 F.3d at 649-50. Rehearing en banc was granted, 236 F.3d at 651, and the en banc court overruled the erroneous prior precedent that had bound the later panel, 242 F.3d 1023 , all within the space of two months. As in Saxton, the en banc opinion in Turner was written for the Court by the author of the second panel opinion. See also United States v. Steele, 117 F.3d 1231, 1234-35 (11th Cir.1997) (reluctantly following a prior panel decision even though it had overlooked a controlling statute), rev’d en banc, 147 F.3d 1316 (11th Cir.1998) (overruling the erroneous prior decision that had bound the panel), cert. denied, 528 U.S. 933 , 120 S.Ct. 335 , 145 L.Ed.2d 261 (1999); Smith v. GTE Corp., 236 F.3d 1292 , 1303 n. 10 (11th Cir.2001) (“The erroneous result reached by the prior panel whose decision bound the Steele panel was corrected en banc, which is how erroneous panel decisions should be corrected.”) (internal citation omitted). If the Gonzales panel erred in holding that the ADA does not apply to former employees — and it is not at all clear to me that its holding is error — the proper way to change circuit *1067 law on the issue is to use this case as a vehicle for overruling Gonzales en banc, which is how we corrected erroneous circuit law in Saxton, Turner, and Steele.
Of course, prior panel decisions can be overruled by intervening Supreme Court decisions, as well as by the en banc court, and where there is a conflict between the holding of an earlier panel decision and that of a later Supreme Court decision, subsequent panels must follow the Supreme Court decision. See In re Provenzano, 215 F.3d 1233, 1235 (11th Cir.2000), cert. denied, 530 U.S. 1256 , 120 S.Ct. 2710 , 147 L.Ed.2d 979 (2000) (“We would, of course, not only be authorized but also required to depart from [the prior decision] if an intervening Supreme Court decision actually overruled or conflicted with it.”); Cottrell v. Caldwell, 85 F.3d 1480, 1485 (11th Cir.1996) (“Where prior panel precedent conflicts with a subsequent Supreme Court decision, we follow the Supreme Court decision.”). But a panel is justified in disregarding a prior panel decision because of the Supreme Court’s holding in a later case only when that intervening holding is squarely on point.
As we have held on numerous occasions, a prior panel decision that has been weakened but not overruled by a later Supreme Court decision must be followed by later panels. See United States v. Chubbuck, 252 F.3d 1300 , 1305 n. 7 (11th Cir.2001) (“We are not at liberty to disregard binding case law that is so closely on point and has been only weakened, rather than directly overruled, by the Supreme Court.”) (internal quotes and citation omitted); Lapides v. Bd. of Regents, 251 F.3d 1372 , 1377 n. 3 (11th Cir.2001) (same); Morris v. City of West Palm Beach, 194 F.3d 1203 , 1207 n. 6 (11th Cir.1999) (same); United States v. Smith, 122 F.3d 1355, 1359 (11th Cir.1997) (same), cert. denied, 522 U.S. 1021 , 118 S.Ct. 614 , 139 L.Ed.2d 500 (1997); see also N.L.R.B. v. Datapoint Corp., 642 F.2d 123, 129 (5th Cir. Unit A April 1981) (“Without a clearly contrary opinion of the Supreme Court or of this Court sitting en banc, we cannot overrule a decision of a prior panel of this Court....”). So, we have said in at least four decisions that a later panel must follow an earlier one’s holding that has been weakened but not overruled by an intervening Supreme Court decision. Seven judges of this Court either wrote or joined the opinions in one or more of those four decisions: Judges Edmondson, Birch, Black, Wilson, Fay, Cox, and me. I think that we meant what we said.
The temptation can be great for a judge to read into an intervening Supreme Court decision more than is there in order to justify not following a particularly pesky prior panel precedent. To be tempted in that respect is just human, but we should resist the temptation. It is critical that when sitting as panel judges we be diligent in policing the line between prior precedent that has been contradicted and thereby overruled by intervening Supreme Court precedent, and that which has been only weakened by it. The strength and integrity of our prior precedent rule, upon which so much rests, is dependent upon that distinction.
The most that can be justifiably said about the effect of Robinson on the holding in Gonzales is that some of what is said, but not anything that is held, in the Robinson opinion arguably weakens some of the reasoning in the Gonzales opinion. That, however, is not enough for this panel to toss the Gonzales decision aside. The majority says that “legal precedent provides our starting point,” Majority Op. at 1044, but when prior panel precedent is directly on point, as the Gonzales decision is, it also ought to be the ending point for *1068 subsequent panels until that controlling precedent has been overruled. Instead of ending with the controlling precedent of Gonzales, the majority, in its own words, proceeds to “assess the continuing viability of the components of the rationale in Gonzales.” Majority Op. at 1044. The exception to the prior precedent rule for intervening Supreme Court decisions does not authorize this panel to assess the continuing viability of the components of the rationale that led a prior panel to reach the holding it did. See Cohen, 204 F.3d at 1076 (“[T]he prior panel precedent rule is not dependent upon a subsequent panel’s appraisal of the initial decision’s correctness.”).
Supreme Court decisions may provide a springboard for the en banc court to reconsider settled circuit law, but they should not be viewed as an opportunity for a later panel to cast aside circuit law with which that panel disagrees. A fair reading of the majority opinion indicates that is what this panel has done. The question is not, as the majority terms it, whether the reasoning of an intervening Supreme Court decision has “undermined” the reasoning of a prior panel precedent, • but whether the Supreme Court decision has overruled that prior precedent. When it comes to their effect on prior panel precedents, Supreme Court decisions either overrule those precedents, or they do not. So far as a later panel is concerned, the effect of a Supreme Court precedent is all or nothing. And here it is nothing, so far as this panel (to be distinguished from the en banc court) is concerned. The Supreme Court’s Robinson decision does not explicitly overrule Gonzales or its holding. Nor does Robinson clearly contradict Gonzales to the point of implicitly overruling it.
The extent to which the majority’s decision defies our prior panel precedent rule is evident from the fact that the Supreme Court in Robinson held nothing more than what this Court had already held before the Gonzales decision was released. This Court had held in Bailey v. USX Corp., 850 F.2d 1506 (11th Cir.1988), that former employees may sue under the anti-retaliation provision of Title VII. The plaintiff in Gonzales, relying on Bailey , argued by analogy that the same should be true of former employees and the ADA. 89 F.3d at 1527. The Gonzales panel acknowledged that Title VII’s anti-retaliation clause applied to former employees, as Bailey had held, but it distinguished that provision of Title VTI from the ADA on the basis of the different statutory language and legislative history. Id. at 1527-29 . What the Supreme Court did in Robinson was agree with our circuit law, as set out in Bailey , that Title VII’s anti-retaliation provision does apply to former employees, something the Gonzales panel itself had acknowledged and considered in deciding that the ADA does not. It is a bit audacious for the majority to say that a Supreme Court decision whose holding was anticipated, acknowledged, and considered by a prior panel when deciding a different issue has undermined that prior panel’s decision on the different issue to such an extent that it may be disregarded.
The fact that the Supreme Court’s Robinson decision is not inconsistent with our Gonzales precedent is also evident from the post-Robinson decisions of two other federal court of appeals which reached exactly the same conclusion as Gonzales even in the wake of Robinson . The Court in Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1112 (9th Cir.2000), squarely faced the issue of whether the Supreme Court’s Robinson decision was inconsistent with the holding of this Court in Gonzales and of other circuits that had reached the same conclusion this circuit had in Gonzales. After contrasting the language of the ADA with that of Title *1069 VII, and fully considering the Supreme Court’s Robinson decision, the Ninth Circuit, which was not bound to accord our Gonzales decision any presumption or deference, nonetheless followed Gonzales. It did so after concluding that Robinson had not undermined Gonzales. Weyer, 198 F.3d at 1108-13 .
Likewise, in Morgan v. Joint Admin. Bd., 268 F.3d 456 (7th Cir.2001), the Seventh Circuit re-affirmed its pre-Robinson decision holding that the former employees are not protected by the employment provisions of the ADA. After pointing out that the ADA requires plaintiffs to be able to perform the essential functions of their job before they are entitled to the protection of the Act, the Court pointedly asked about whether former employees are covered: “How could they be? They cannot perform the essential functions of their job, and therefore they have no rights under the statutory provisions [of the ADA].” Id. at 458 .
The plaintiffs in Morgan conceded that EEOC v. CNA Ins. Cos., 96 F.3d 1039 (7th Cir.1996),a pre-Robinson decision of the Seventh Circuit panel, had held that the ADA does not apply to former employees, but they asked the Court to re-examine that position in light of Robinson’s holding that Title VII’s anti-retaliation provision does apply to former employees. Id. at 458. The Court concluded that Robinson had changed nothing about Seventh Circuit law on the ADA, reasoning that there is a “stark” difference between the anti-retaliation provision of Title VII and the employment provisions of the ADA, and that extending the scope of the ADA to former employees would “create perverse incentives” resulting in fewer employers offering disability benefits to their workers. Id.
Further, the Morgan Court observed that in CNA the panel had considered the very reasoning that would later be adopted by Robinson in a Title VII retaliation case, and had declined to apply it to the ADA. Morgan, 268 F.3d at 458 . (“We anticipated the difference between [the Title VII] situation and the one here in the case the plaintiffs ask us to overrule.”). Because CNA had already distinguished Robinson’s Title VII-retaliation situation from that of an ADA case not involving retaliation, the Morgan Court recognized that Robinson did not govern the case before it, and followed the prior panel decision, CNA. Similarly, as noted above, our Gonzales opinion distinguished Bailey , a Title VII retaliation case, from the case before it, an ADA case. Thus Gonzales, just like CNA, anticipated Robinson’s Title VII arguments and rejected their applicability to an ADA case. In Morgan , the Seventh Circuit respected its CNA decision, specifically its distinction between Title VII and the ADA. In this case, our prior panel precedent rule requires that this panel afford the same respect to Gonzales.
A couple of other circuits in post-Robinson decisions have reached conclusions on the coverage issue that are different from the Ninth Circuit’s in Weyer and the Seventh Circuit’s in Morgan (and that of our prior panel in Gonzales). See Ford v. Schering-Plough Corp., 145 F.3d 601 (3rd Cir.1998), cert. denied, 525 U.S. 1093 , 119 S.Ct. 850 , 142 L.Ed.2d 704 (1999); Castellano v. City of New York, 142 F.3d 58 (2d Cir.1998). The point, however, is not whether Weyer and Morgan are right or wrong on the ultimate issue involving the scope of the ADA as it concerns former employees. The point is that Weyer and Morgan irrefutably demonstrate that reasonable jurists can conclude Robinson does not undermine or contradict Gonzales to the point of overruling it, because two panels composed of six federal court of appeals judges have reached the same con- *1070 elusion as Gonzales after they fully examined and considered Robinson .
In view of that, Judge Barkett’s statement that “there is no doubt that the Robinson Court’s decision invalidates Gonzales ” is one with which I cannot agree. Judge Barkett obviously disagrees with the conclusions of Judges Flaum, Posner, and Williams of the Seventh Circuit in Morgan and of Judges Beezer, Wiggins, and Kleinfeld of the Ninth Circuit in Weyer , but the fact that there is disagreement, and a two-to-two split of the other circuits that have addressed the issue since Robinson was released proves that there is substantial doubt about whether Robinson overruled or undermined to the point of abrogation the Gonzales decision.
That ought to be all this panel needs to know in order to decide this appeal, because if reasonable jurists can disagree about whether a Supreme Court decision contradicts the holding of a prior panel, as they undeniably have, that prior panel holding must be followed. The prior panel precedent rule — the fundamental ground rule under which we operate as members of a court that sits in panels, the rule that keeps the peace among us, and the rule that is essential to the stability and predictability of our circuit law — demands no less.
I express no view on how I would vote to decide the ADA coverage issue if we were reconsidering it en banc, see generally United States v. Steele, 147 F.3d at 1318 (en banc court not bound by prior panel decisions), nor do I express any view on the other issue the panel addresses (the one involving differential treatment of the mentally and physically disabled), because that issue would be moot if this panel followed Gonzales, as it is bound to and should do.
Before ANDERSON, Chief Judge, and TJOFLAT, EDMONDSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON Circuit Judges.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9494601. Public record. Not legal advice.