Thursday, February 10, 2005

Remand Opinion in Garrett

Don't know how I missed this, but a couple of weeks ago the District Court for the Northern District of Alabama issued its merits opinion on remand in the Garrett case. After the Supreme Court held Patricia Garrett's ADA damages action to be barred by the Eleventh Amendment, the court of appeals on remand held that Garrett's damages claim under Section 504 of the Rehabilitation Act could proceed. The district court's most recent opinion, Garrett v. Board of Trustees, 2005 WL 281226 (N.D. Ala. Jan. 13, 2005) (not available for free on the web afaik), grants summary judgment to the defendant on Garrett's 504 claim.

The court's opinion begins with some rather derisive words about Section 504, and about counsel for not highlighting the Section 504 claim before the case wound its way up to the Supreme Court and back down again:

On her way back down to this court, Garrett finally got around to pointing out to the Eleventh Circuit that neither it nor this court had addressed the alternative jurisdictional basis found only in the Rehab Act. The Eleventh Circuit thereupon asked UAB to respond to Garrett's newly found argument. UAB responded with a classic example of lame, insipid non-advocacy, in which UAB, in effect, confessed that a horrible waste of time had taken place. UAB virtually conceded that the Rehab Act provides a basis for jurisdiction over Garrett's disability claim brought against her State employer. UAB never argued the effect of the law-of-the-case doctrine or the possibility that Garrett had waived her new argument. Instead UAB admitted that it had waived its Eleventh Amendment immunity as to possible Rehab Act liability.

The Eleventh Circuit reacted appropriately to UAB's strange response and sent the case back to this court. When this court thereupon scheduled a hearing to explore the waiver evidence, UAB quickly admitted the obvious, namely, that it has received a superabundance of federal dollars. There is no State institution in America that is not fatally addicted to federal largess, even when it thereby risks submitting to federal court jurisdiction for any challenge of its conduct. Thus, because the ADA and the Rehab Act have essentially the same elements for constituting a cause of action, and because both afford similar, if not identical, relief, all of the effort that had gone into litigating this case all the way to the Supreme Court suddenly became an academic exercise. The various court opinions on Eleventh Amendment immunity did provide some excitement, and did clarify a serious jurisdictional issue for the litigating public. But, the judicial output became meaningless for this case. The irony is that the alternative Rehab Act jurisdictional issue escaped the attention of everybody, the parties and the courts, year after year after year. If Garrett had filed a Rule 59 motion seeking to alter or amend this court's original judgment entered on January 13, 1998, and had pointed out to this court that it failed to address the alternative jurisdictional basis provided in the Rehab Act, the outcome might or might not have been different, but the story would certainly have been shorter.
(Gotta love a court in a disability discrimination case referring to the lawyering as "lame.")

On the merits, the court concluded that Garrett's state employer did not discriminate against her, and that she was not an individual with a disability in any event. The court's discussion of the latter point contains very troubling language suggesting that cancer can only rarely be a "disability" for ADA/504 purposes:

Everybody knows someone who either has cancer or has had cancer. The judge who is writing this opinion has had cancer. He underwent the trauma of the surgery necessary to remove a cancerous prostate gland. Another member of this court had breast cancer and a mastectomy before she was appointed to the bench. She is presently presiding over a trial of national interest that is predicted to take four months.

Fortunately, for this judge, for his fellow judge and for Garrett, they are now cancer free. It could have gone the other way for any of them. While under treatment, they were all limited in their abilities to work and were rightfully considered to be sick. They could fairly be described as temporarily disabled. However, people do live with, and recover from, cancer, and do again function in the workplace where they worked before being diagnosed and treated for cancer. Either this judge should recuse himself because of a life experience similar to Garrett's, or he cannot avoid bringing his life experience into the decision making process. Both this judge and Garrett have recovered their abilities to perform their jobs, whether or not at the precise level of proficiency at which they performed them before their successful treatment. This judge is sure that there are lawyers who thought, or even hoped, that this judge would not come back to the bench. The perception that someone with cancer is "on the way out" may be pervasive, but in today's world it is fallacious. This judge can testify that when a person is told that he has cancer, it is psychologically, if not physically, debilitating, but not every person who has cancer is "disabled", much less "permanently disabled" and not automatically perceived to be. During treatment, a cancer patient may or may not be able to function at full capacity, but neither does a person with a bad cold function at full capacity. Instead, that person, and those with whom he works, look forward to his recovery and to his restoration to the workplace.
Of course, one might argue that it is precisely the fact that people have such unfounded stereotypes about cancer (the "pervasive" perception "that someone with cancer is 'on the way out'") that makes it particularly important to protect people with that condition against discrimination.


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