Kapche v. City of San Antonio

• Decision Date: 30 August 2002
• Docket Number: No. 00-50588.,00-50588.
• Citation: 304 F.3d 493
• Parties: Jeff KAPCHE, Plaintiff-Appellant, v. CITY OF SAN ANTONIO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 493

304 F.3d 493

Jeff KAPCHE, Plaintiff-Appellant, v. CITY OF SAN ANTONIO, Defendant-Appellee.

No. 00-50588.

United States Court of Appeals, Fifth Circuit.

August 30, 2002.

John Wallace Griffin, Jr. (argued), Houston, Marek & Griffin, Bobby D. Brown, Law Offices of Bobby D. Brown, Victoria, TX, Cynthia T. Sheppard, Cuero, TX, for Plaintiff-Appellant.

Luis Augusto Moreno (argued), Villarreal, Moreno & Ruiz, San Antonio, TX, for Defendant-Appellee.

Michael Alan Greene (argued), Rosenthal & Greene, Portland, OR, for American Diabetes Ass'n, Amicus Curiae.

Linda Frances Thome, Jessica Dunsay Silver, U.S. Dept. of Justice, Civil Rights Div., Washington, DC, for U.S., Amicus Curiae.

Appeal from the United States District Court for the Western District of Texas.

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.

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 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, 128 L.Ed.2d 61 (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, 134 L.Ed.2d 211 (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 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 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 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 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...