Butler v. Thornburgh

• Decision Date: 15 May 1990
• Docket Number: No. 89-3337,89-3337
• Citation: 900 F.2d 871
• Parties: 57 Fair Empl.Prac.Cas. 1526, 53 Empl. Prac. Dec. P 39,931, 1 A.D. Cases 1587 Charles W. BUTLER, Plaintiff-Appellant, v. Richard THORNBURGH, In his official capacity as Attorney General of the United States, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 871

900 F.2d 871

57 Fair Empl.Prac.Cas. 1526,

53 Empl. Prac. Dec. P 39,931, 1 A.D. Cases 1587

Charles W. BUTLER, Plaintiff-Appellant, v. Richard THORNBURGH, In his official capacity as Attorney General of the United States, et al., Defendants-Appellees.

No. 89-3337.

United States Court of Appeals Fifth Circuit.

May 15, 1990.

George W. Chuzi, Kalijarvi, Chuzi & Stetina, Washington, D.C., Winthrop G. Gardner, New Orleans, La., for plaintiff-appellant.

Glenn K. Schreiber, Asst. U.S. Atty., John Volz, U.S. Atty., New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, GARZA, and DAVIS, Circuit Judges.

GEE, Circuit Judge:

This appeal comes to us from the district court's denial of relief to an FBI agent who was discharged from his employment with the Bureau because of incidents connected with a drinking problem. Appellant Butler invokes the Rehabilitation Act of 1973, 29 U.S.C. Sections 701-794, and the operating procedures of the FBI in his challenge to the decision of the district court. For the reasons set out below, we must hold that Mr. Butler's claims fail and we, therefore, affirm the decision of the district court.

Statement of the Facts

Appellant Charles W. Butler was an employee of the Federal Bureau of Investigation from 1970 until he was dismissed in November 1987. Butler was appointed a Special Agent of the FBI in 1973, and he served in that capacity for 14 years. As a special agent, Butler was required to conduct surveillances, undertake investigations, testify in federal court, make arrests, collect evidence, conduct counter-intelligence activities, carry and use a firearm, use physical force and drive an automobile.

Butler is an alcoholic, though his problem did not affect his employment until he had been a Special Agent for five years. In May 1978, Butler picked a fight with a crippled gas station attendant in Washington, D.C., while under the influence of alcohol. Later, a similar incident occurred, in which Butler physically injured a security guard in a fight that he provoked. While on probation as a result of that incident, Butler sought and obtained treatment for his condition, remaining incident-free until 1983. In that year, while under the influence of alcohol, he drove a Bureau vehicle into a wall in Louisiana, wrecking both it and the wall. Reprimanded, again placed on probation, and warned that any future incident could and would result in his discharge, Butler again sought treatment.

Butler's condition caused no further trouble until February 1987, when he again became intoxicated and forgot where he had left his Bureau vehicle. (It was recovered a few days later.) For the first time he voluntarily checked himself into an inpatient alcohol rehabilitation facility. When he had completed this program, the FBI was notified that Butler's "prognosis will be excellent for recovery and prolonged abstinence." Butler has abstained from drinking since the February 1987 incident.

In June 1987, the FBI notified Butler that his dismissal was being considered because of the repeated alcohol-related incidents. Butler responded by requesting reconsideration because of his favorable prognosis and abstinence. In November 1987, however, the FBI dismissed him.

Butler exhausted his administrative remedies and filed suit in federal district court, alleging that his firing had violated his rights under the Rehabilitation Act of 1973, under the Fifth Amendment's guarantee of due process, and under the FBI's own regulations. The district court dismissed Butler's claim under the Rehabilitation Act and granted summary judgment for the FBI on his constitutional and regulatory claims. Butler appeals from the disposition of the district court as to the Rehabilitation Act and the regulatory claims.

The central question raised in his appeal is whether the Rehabilitation Act of 1973, as amended, 29 U.S.C. Sections 701-794 (hereinafter the Rehabilitation Act), reaches out to protect an alcoholic FBI agent from discharge. Resolution of this question depends on parsing the complex statutory and regulatory framework that governs the rights and duties of federal employers toward their employees. Of particular intricacy in this case is the interplay between the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (the Hughes Act) and the Rehabilitation Act.

The Hughes Act

The Hughes Act provides in pertinent part as follows:

(b) Prior alcohol abuse no bar to federal employment; exceptions

(1) No person may be denied or deprived of Federal Civilian employment or a Federal professional or other license or right solely on the ground of prior alcohol abuse or prior alcoholism.

(2) This subsection shall not apply to employment

(A) in the Central Intelligence Agency, the Federal Bureau of Investigation, the National Security Agency, or any other department or agency of the Federal Government designated for purposes of national security by the President....

42 U.S.C. Sec. 290dd-1(b) (emphasis added).

A considerable wrangle emerges in the briefs over the weight to be attached to the word "prior" as used in the statutory formula. For Butler, "prior" assumes totemistic value. As a tool of statutory construction, Butler looks to the ordinary meaning of the word and concludes, not surprisingly, that "prior" cannot include his alcohol abuse because such was current at the time of his termination. Thus, Butler contends, the Hughes Act has no application to him, given the fact that it addresses only discrimination arising out of prior alcohol abuse, the fact that he makes no claim under it and, therefore, the statutory exemption for the F.B.I. is irrelevant.

The government responds by arguing that, notwithstanding "prior", the true intent of the Congress was to cover current abuse of alcohol. According to the House Report, No. 91-1663, adopted by both houses to accompany the Hughes Act,

The legislation gives a clear mandate to the Civil Service Commission to develop policies and services for the prevention and treatment of alcohol abuse and alcoholism among Federal civilian employees which are consistent with the purposes and intent of the Act. The alcoholic employee, like any other employee suffering from a disease, will now be provided with an opportunity for treatment instead of being summarily discharged. The committee has, however, provided reasonable exceptions in the case of certain sensitive agencies or positions within agencies.

1970 U.S.Code Cong. & Admin.News 5719, 5727-5728 (emphasis added).

This language leads to the dismaying conclusion that, indeed, Congress did not say what it meant or mean what it said in its use of "prior" in the text of the Section. Be that as it may, however, it is quite clear that Congress never intended the Hughes Act to protect all current alcohol abusers. In Section 290dd-1(c) we find the unequivocal statement that "[t]his section shall not be construed to prohibit the dismissal from employment of a Federal civilian employee who cannot properly function in his employment." We may safely conclude, therefore, that the Hughes Act embraces both prior alcohol abusers, and current abusers who are functional in their jobs, but not current dysfunctional abusers. Clearly the recurring incidents that precipitated Charles Butler's termination reveal him to have been a current dysfunctional alcoholic at the time of his firing. Consequently, the Hughes Act ordains no protection for the kind of problem that Mr. Butler exhibited. Because Mr. Butler could not be included in the definitional sweep of the Act, we have no need to resort to the "sensitive agencies" exception to drop him from its protections. If we did so, however, we could scarcely avoid concluding that current alcoholism is a fortiori of prior alcoholism and therefore that the sensitive agency exception covers both.

We fully recognize the fact that our adopting the government's reasoning on this point does not affect the outcome that, under either view of the Hughes Act--Mr. Butler's or the government's--it affords no protection to Mr. Butler. Nor does it necessarily follow that, because Mr. Butler finds no solace in the Hughes Act, his claim under the Rehabilitation Act must also fail. The parties' quarrel over how we should view the Hughes Act is really a shadow play on the real issue before us, i.e., the scope of protection afforded Mr. Butler under the Rehabilitation Act. Butler urges us to construe the Rehabilitation Act as a higher state in the evolution of federal protection for alcoholic employees, surpassing the initial bare bones attempt of the Hughes Act. ¹ The government, on the other hand, maintains that the Hughes Act trenches on any broad interpretation we might make of the Rehabilitation Act and that Congress, in enacting the Rehabilitation Act, saw itself as amplifying and not as extending the Hughes Act.

We turn now to consideration of the Rehabilitation Act.

The Rehabilitation Act

The Rehabilitation Act of 1973, 29 U.S.C. Sections 701-794, prohibits the federal government from engaging in employment discrimination against handicapped persons. 29 U.S.C. Sec. 791(b). The Act also forbids discrimination by federal contractors (Section 793) and federal grantees (Section 794). Alcoholism is arguably a handicapping condition for purposes of the handicap discrimination provisions of the Act. The Attorney General has so concluded, 43 Op.Atty.Gen. No. 12 (1977), as has the federal agency charged with carrying out the Act. See opinion of the Merit Systems Protection Board in Ruzek v. General Services Administration, 7 MSPB 307, 7 M.S.P.R. 437 (1981). Some federal courts have held likewise. Whitlock v. Donovan, 598 F.Supp. 126, 129 (D.D.C.1984), aff'd without opinion, 790 F.2d 964 (1986); Crewe v. United States Office of Personnel Management, 834 F.2d 140, 141 (8th Cir.1987). The...