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