Buckingham v. U.S.

Decision Date13 July 1993
Docket NumberNo. 91-56236,91-56236
Citation998 F.2d 735
Parties62 Empl. Prac. Dec. P 42,424, 62 USLW 2068, 2 A.D. Cases 1009, 2 A.D.D. 532, 4 NDLR P 75 Melvin BUCKINGHAM, Plaintiff-Appellee, v. UNITED STATES of America, United States Postal Service, and Anthony M. Frank, Postmaster General, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

John P. Schnitker, U.S. Dept. of Justice, Washington, DC, for defendants-appellants.

Nick A. Alden and Stuart P. Herman, Herman & Wallach, Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: HUG, FERGUSON, and O'SCANNLAIN, Circuit Judges.

FERGUSON, Circuit Judge:

Melvin Buckingham sued the Postal Service for a violation of his rights under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., which requires recipients of federal funds, including the Postal Service, to provide reasonable accommodation to handicapped employees. Buckingham requested a transfer from the Post Office in Columbus, Mississippi to one in Los Angeles in order to obtain better medical treatment for his disabling condition, AIDS. The Postal Service refused to transfer Buckingham, alleging that to do so would contravene the rights of other employees under a collective bargaining agreement. After exhausting his administrative remedies, Buckingham brought this suit in district court. The Postal Service moved for summary judgment. The district court denied the motion and sua sponte entered summary judgment for Buckingham. The Postal Service appeals the denial of its summary judgment motion and the entry of summary judgment for Buckingham. We affirm as to the denial of the Postal Service's motion and reverse as to the entry of judgment for Buckingham.

I. Background

Melvin Buckingham acquired HIV, the virus which causes AIDS, while working as a urology technician in the United States Navy. Buckingham was honorably discharged from the Navy and began working as a postal clerk at the Columbus, Mississippi Post Office in May, 1988. After successfully completing his probationary period, Buckingham began experiencing symptoms due to the HIV virus. Buckingham was examined by a physician in Memphis, Tennessee who recommended that he be restricted to light duty for a period of up to a month, until he could be examined by a specialist. The Postal Service temporarily assigned Buckingham to light duty.

Buckingham told the Postmaster in Columbus that he had AIDS and that he wanted to be transferred to Los Angeles so that he could obtain better medical treatment. The Columbus Postmaster told Buckingham that the Memphis division would waive a rule requiring postal workers to have one year of seniority before receiving a transfer. Buckingham wrote a request for transfer that was forwarded to Los Angeles. He then took a leave of absence from the Columbus Post Office and moved to Los Angeles.

Upon his arrival in Los Angeles, Buckingham contacted the Post Office there to ask about his reassignment. The Los Angeles Post Office denied Buckingham's transfer request, relying on a collective bargaining agreement then in effect between the Postal Service and the unions representing postal workers. The parties to the agreement had negotiated a Memorandum of Understanding (MOU), which was made a part of the agreement, that addressed geographical reassignments. The MOU created a transfer preference scheme for employees with at least one year of seniority. Buckingham had only been working for the Postal Service for five months, and thus the Postal Service asserted that he did not qualify for transfer under the MOU.

Buckingham filed a timely administrative complaint with the Equal Employment Opportunity Commission (EEOC). The Administrative Law Judge (ALJ) issued a recommended decision finding that Buckingham's request for transfer was a reasonable accommodation to his handicap and proposing that the Postal Service not assert the MOU's one-year seniority requirement in cases where it conflicts with obligations under the Rehabilitation Act of 1973. The Postal Service, in its final agency decision, rejected the recommendation of the ALJ. Having properly exhausted his administrative remedies, Buckingham filed this action on February 1, 1990 in district court against the Postal Service for violations of sections 501 and 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794.

The government, representing the Postal Service, moved for summary judgment, arguing (A) that transfers for medical treatment are not required as a matter of law and (B) that transferring Buckingham would contravene the rights of employees with more than one year of seniority under the MOU. The district judge rejected these arguments and sua sponte entered summary judgment for Buckingham on February 19, 1991. The district court ordered the Postal Service to reinstate Buckingham at the Los Angeles Post Office and awarded him back pay, attorney's fees, and costs. The district court also enjoined the Postal Service from asserting its policy of requiring one year of seniority for transfers in cases where that policy conflicts with the Postal Service's duty under the Rehabilitation Act to provide reasonable accommodation to handicapped employees. On March 5, 1991, the government filed a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e). On July 23, 1991, the district court denied the motion. On September 18, 1991, the government filed a timely notice of appeal. On the same day, the district court entered an order of stipulation to damages, fees, and costs. On November 4, 1991, the Postal Service filed a second notice of appeal, captioned "Amended Notice of Appeal," which referred to the order of stipulation.

II. Timeliness and Mootness

Buckingham contends that we do not have jurisdiction over this appeal. He argues that the government's appeal from the injunctive portion of the judgment below is moot, and that the remainder of the appeal is untimely. The government agrees that any issue as to the injunction is moot, but argues that its appeal of the district court's order granting back pay, reasonable attorney's fees, and costs is timely and presents a live issue before this court.

A. Mootness

On September 4, 1991, Buckingham resigned from the Postal Service. On November 20, 1990, the collective bargaining agreement, upon which the MOU at issue here was based, apparently expired. 1 Thus, Buckingham contends, the Postal Service's appeal of the injunction is moot. The Postal Service agrees that the injunction must be dissolved as moot and requests a Munsingwear order vacating the injunctive portion of the district court's order. See United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950). While we concur with both parties that any issue as to injunctive relief is moot, we mention this only to give guidance to the district court on remand. Our reversal of the district court's sua sponte entry of summary judgment for Buckingham, upon which the injunction was based, obviates the need for any further discussion of the injunction, 2 as well as the need for a Munsingwear order.

B. Timeliness

If the government timely appealed the district court's award to Buckingham of back pay, attorney's fees, and costs, we must review the decision below to determine whether that award was in error. The government argues that its "Amended Notice of Appeal," filed November 4, 1991, meets the formal requirements for a proper notice of appeal, even though it was captioned incorrectly. See Smith v. Barry, --- U.S. ----, ----, 112 S.Ct. 678, 681, 116 L.Ed.2d 678 (1992). Buckingham contends that this was not a proper notice of appeal and that no proper notice was filed. Both the Postal Service and Buckingham are under the impression that the final judgment from which the Postal Service had to appeal was the district court's September 18, 1991 order stipulating the amount of back pay, attorney's fees, and costs.

Both parties are confused as to the date of the final order. The final judgment for the purposes of filing an appeal was the July 23, 1991 order denying the Postal Service's Rule 59(e) motion to alter or amend the judgment. See Fed.R.App.P. 4(a)(4). The Postal Service's September 18, 1991 Notice of Appeal was a timely appeal to that final judgment, and thus our jurisdiction is proper under 28 U.S.C. § 1291.

III. Merits

The government argues that it should have prevailed on its motion for summary judgment because (A) transfer for medical treatment is precluded as a matter of law from being a reasonable accommodation and (B) transferring Buckingham would contravene the seniority rights of other employees under the collective bargaining agreement. We review a grant of summary judgment de novo. Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990).

The government also argues that the sua sponte entry of summary judgment for Buckingham was improper because the government was not on notice that it would have to present arguments raising material issues of fact concerning whether Buckingham should have been reasonably accommodated and whether he was or would be able to perform the essential functions of his job.

A. Transfer for Medical Treatment

The government contends that the Rehabilitation Act of 1973 ("the Act") does not require the Postal Service to transfer Buckingham to Los Angeles so that he can receive better medical treatment. The government argues that there is a per se rule that job transfers are not reasonable accommodations under the Act. The government also argues that Buckingham's transfer request is not a "reasonable accommodation" to his handicap because it is not tied to his ability to perform the essential functions of his job.

It is undisputed that Buckingham is a handicapped individual who is entitled to protection under the Act. See Chalk v. U.S. Dist. Ct. Cent. Dist. of Cal., 840...

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