Opinion
Civil Action No. SA-95-CA-1215-EP.
July 7, 2000.
ORDER
On this date the Court considered the cross motions for summary judgment submitted by the parties in this case, and the responses to those motions. In addition, the Court considered the motions for summary judgment on the issue of Plaintiff's newly added "regarded as" claim. After careful consideration, the Court will grant the Defendant's motions and deny the Plaintiff's motions.
This case is before the Court following an appeal to the United States Court of Appeals for the Fifth Circuit. That court vacated this Court's summary judgment order in favor of the Defendant City of San Antonio. See Kapche v. City of San Antonio, 176 F.3d 840 (5th Cir. 1999). In doing so, the Fifth Circuit questioned the continuing viability of its per se rule that insulin-dependent diabetics are not qualified to perform an essential function of the job of being a police officer — driving. See id. at 846-47; see also Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993) (establishing per se rule under Rehabilitation Act); Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) (extending rule to ADA). The court first noted that Chandler and Daugherty create an apparent exception to an EEOC regulation mandating individualized assessments of all prospective employees. Kapche, 176 F.3d at 845-46. The court stated its assumption that "regardless of intervening changes in the circumstances under which Chandler and Daugherty were decided, an exception to the EEOC regulation . . . is permissible." Id.
The court next took up the question of whether the exception has continuing viability, in light of certain improvements in medical technology and "significant changes in the federal highway safety regulations." Id. at 846. Finding that questions of material fact existed on this issue, the court vacated this Court's order, and remanded the case with the instruction that this Court (1) determine "whether today there exists new or improved technology — not available at the time [Chandler and Daugherty] were decided — that could now permit insulin-dependent diabetic drivers in general, and Kapche in particular, to operate a vehicle safely;" and (2) open discovery, or conduct a full-blown merits trial, on the question of whether Kapche is qualified to be a San Antonio police officer, if the Court concludes that the Fifth Circuit's per se rule should be abandoned. Id. at 847.
In 1995, the Department of Transportation abolished its highway safety regulation prohibiting insulin-dependent diabetics from operating noncommercial motor vehicles. Id.
Whether this Court has the authority to revisit a question decided as a matter of law by a three-judge panel for the Fifth Circuit has given the Court some pause. See Clark v. Maurer, 824 F.2d 565, 567 (5th Cir. 1987) (district court cannot overrule court of appeals decision); Edwards v. United States, 114 F.3d 1083, 1084 (11th Cir. 1997) (giving district court power to reverse appellate court is "contrary to the usual order of things in America's courts"); Green v. Seymour, 59 F.3d 1073, 1078 (10th Cir. 1995) (district court cannot review and reverse decision of court of appeals); Morrison v. Jones, 952 F. Supp. 729, 732 (M.D. Ala. 1996) (trial courts are bound to follow legal precedent and thus may not reverse overrule appellate decisions). Moreover, the mandate from the Fifth Circuit seems somewhat broad, as it asks this Court to consider not only the facts and evidence governing this case, but those governing similar cases as well: the Court is directed to determine whether medical technology has changed such that "insulin-dependent diabetic drivers in general, and Kapche in particular" can operate a vehicle safely. Id. at 847 (emphasis added).
The Court recognizes the possibility, argued by the Plaintiff, that Chandler and Daugherty have been rejected by the United States Supreme Court in an opinion issued after the Fifth Circuit remanded Kapche. In Sutton v. United Airlines, Inc., 119 S.Ct. 2139 (1999), the Supreme Court rejected reasoning that would universally "find all diabetics to be disabled." Sutton, 119 S.Ct. at 2147. Instead, the Court reaffirmed that the question of whether an individual is qualified for a particular job involves an individualized inquiry. Id.; see also Rizzo v. Children's World Learning Centers, Inc., 84 F.3d 758, 764 (5th Cir. 1996) (whether individual is a direct threat is a fact question, not a question of law). The language in Sutton may mean that the Fifth Circuit's per se rule is no longer legally viable, let alone scientifically viable. However, the language is dicta; the Fifth Circuit has not spoken on this question and, at the present, Chandler and Daugherty remain good law. The Court is reluctant to disturb that law, in spite of the mandate of the Fifth Circuit.
However, given the plain language of the Fifth Circuit's opinion, these concerns are immaterial to resolution of the case before the Court. The Fifth Circuit remanded this case in part for a determination of whether, in light of new technology available today, Kapche has a valid claim under the ADA. However, Kapche's application to the San Antonio Police Department was rejected in 1994, at a time when, as the Fifth Circuit acknowledges, valid and controlling Fifth Circuit law justified the rejection. Thus, as the City argues, its actions in 1994 were lawful. The Fifth Circuit has not directly impugned the legal or factual bases for its earlier opinions it has merely suggested that times have changed. While that may be the case, Kapche applied for a position with the City before times had changed. Unless the Fifth Circuit or the United States Supreme Court — the only courts with the authority to overrule the Fifth Circuit's cases — find Chandler and Daugherty to have been erroneous at the time they were issued, those cases controlled (and justified) the City's decision. If, as the Fifth Circuit acknowledges, technology is available today that was not available in 1993 and 1995, the City cannot be held liable for refusing to hire Kapche in 1994.
In fact, it explicitly assumed the legal bases to be correct, and it affirmed the factual bases.
Having made this determination, the Court finds that it has no constitutional authority to make any further findings in this case. The issue of whether diabetics in general are now, given new medical technology and changing federal and state regulations, to be considered on a case-by-case basis when applying for jobs requiring commercial driving is a question that must be taken up by individuals applying for such jobs after the Fifth Circuit issued its opinion in Kapche. For this Court to consider the question now, when it has no viable claim before it, would be for this Court to render an advisory opinion, which it is not authorized to do. See Hewitt v. Helms, 107 S.Ct. 2672, 2676 (1987) (true case or controversy involves the "settling of some dispute which affects the behavior of the defendant towards the plaintiff'); CH Nationwide v. Norwest Bank Texas, N.A., 208 F.3d 490, 493 (5th Cir. 2000) (courts may not consider questions that cannot affect the rights of the litigants in the case before them); Amar v. Whitley, 100 F.3d 22, 23 (5th Cir. 1996) (United States Constitution requires existence of case or controversy, i.e., an "ongoing adversarial relationship between the parties"); Sullivan Central Plaza, I Ltd. v. BancBoston Real Estate Capital Corp., 914 F.2d 731, 735 (5th Cir. 1990) (mootness doctrine prevents "advisory opinions on abstract propositions of law"). In addition, the Court would be compelled to enter an advisory opinion that might effectively overrule an appellate court, which this Court is also not authorized to do. In other words, the broader issues presented by this case are rendered moot by the Court's resolution of the actual case and controversy before it — that is, whether Kapche was qualified, in 1994, to be a San Antonio police officer.
In addition, this Order, because it concludes that Kapche was not qualified in 1994 when he was rejected from the San Antonio Police Department, effectively denies Kapche's motion for summary judgment on his "regarded-as" claim. Summary judgment must be granted in favor of the City on that claim as well. Thus, the case will be dismissed.
ACCORDINGLY, it is ORDERED that the City's motions for summary judgment are GRANTED, and the Plaintiff's motions for summary judgment are DENIED. All pending motions are DENIED AS MOOT, and this matter is DISMISSED.