Rehearing Denied Jan. 21, 1986.
See 474 U.S. 1097.
On petition for writ of certiorari to the United States Court of
Appeals for the Ninth Circuit.
The petition for writ of certiorari is granted. The judgment of
the United States Court of Appeals for the Ninth Circuit is
reversed. Anderson v. Bessemer City,
470 U.S. 564 ( 1985).
Opinion on remand,
782 F.2d
1510.
Justice STEVENS, dissenting.
Respondent is afflicted with Crohn's disease. Although
originally accepted, her application for admission to the Los
Angeles County School of Nursing was ultimately denied, at least in
part, because of the school physician's opinion that the school
program was "too stressful" for her. Finding of Fact No. 12, App.
to Pet. for Cert. D-40. Nevertheless, the District Court concluded
that respondent had "failed to show that she was denied admission
to the School solely by reason of her affliction or because she had
Crohn's disease." Finding of Fact No. 18, App. to Pet. for Cert.
D-43. Based on this critical finding, the District Court denied
respondent any relief under 504 of the Rehabilitation Act of 1973,
29 U. S.C. 794.
Page 474 U.S.
936 , 937
Justice MARSHALL dissents from this summary disposition, which
has been ordered without affording the parties prior notice or an
opportunity to file briefs on the merits. See Maggio v. Fulford,
462 U.S. 111,
120- 121, 2265-2266 (1983) (MARSHALL, J., dissenting); Wyrick v.
Fields,
459 U.S.
42, 51-52, 398 (1982) (MARSHALL, J., dissenting).
The Court of Appeals for the Ninth Circuit reversed. After
reviewing the prior history of the case and explaining why it had
previously reversed the District Court's order denying respondent's
motion for a preliminary injunction, the Court of Appeals
wrote:
"The trial in the district court did not produce substantially
different evidence from that which we considered in Kling I. The
district court's findings are clearly erroneous and in many
instances are inconsistent. We find that Mary Kling is an
'otherwise qualified handicapped individual' within the meaning of
section 504 of the Rehabilitation Act 1 and that she was denied
admission to the School of Nursing solely because of her handicap.
[
Footnote 2] The school's
physician, Dr. Crary, rejected Kling because she suffers from
Crohn's Disease. He assumed that merely because of her disease she
would be unable to complete the school's program. He did not
evaluate her on an individual basis and even testified that had he
known more about Kling's medical history, he would have been
'swayed very strongly toward acceptance.' It is precisely this type
of general assumption about a handicapped person's ability that
section 504 was designed to avoid. See
Page 474 U.S.
936 , 938
Bentivegna v. United States Department of Labor,
694 F.2d
619 (9th Cir.1982); Pushkin v. Board of Regents of the
University of Colorado,
658 F.2d
1372, 1385 (10th Cir.1981). This district court's legal
conclusions are similarly erroneous.
"1 29 U.S.C. 794. See 34 CFR
104.3(j).
"2 The School of Nursing's claim that
Kling was not otherwise qualified because she failed to meet the
mathematical entrance requirement is meritless. Because Kling was
rejected solely because of her handicap and because this decision
was made without regard to her mathematical deficiency and before
she had an opportunity to submit evidence that she had or had not
remedied the deficiency, it is irrelevant that the deficiency may
have existed." App. to Pet. for Cert. A-6-A-7, and nn. 1, 2.
As this Court's summary disposition today demonstrates, the
Court of Appeals would have been well advised to discuss the record
in greater depth. One reason it failed to do so is that the members
of the panel decided that the issues presented by this case did not
warrant discussion in a published opinion that could be "cited to
or by the courts of this circuit, save as provided by Rule 21(c)."
Id., at A-2, n. **. That decision not to publish the opinion or
permit it to be cited-like the decision to promulgate a rule
spawning a body of secret law-was plainly wrong. [
Footnote 1]
The brevity of analysis in the Court of Appeals' unpublished,
noncitable opinion, however, does not justify the Court's summary
reversal. 2 Presumably, the Court's reversal is not based on
Page 474 U.S.
936 , 939
a view that the Court of Appeals misapprehended the governing
standard: as the Ninth Circuit stated, findings of fact by the
District Court are reviewable to determine if they are "clearly
erroneous." Fed.Rule Civ. Proc. 52(a). Apparently, the Court
disagrees with the Ninth Circuit's application of that standard.
However, the Court's reversal is not accompanied by a review of the
District Court's factual findings or a determination that they are
not, in fact, "clearly erroneous." The Court is thus spared the
necessity of explaining the apparent inconsistencies in the
District Court's findings. [
Footnote 3] The Court is thus spared the necessity of
addressing the fact that petitioners' own rendition of the
incidents in question suggests that the District Court's findings
give a less than complete accounting of certain events-events that
may well influence a court's view of the matter at hand. [
Footnote 4]
Page 474 U.S.
936 , 940
Finally, the Court is spared the necessity of analyzing the
District Court's factual findings in the context of the record. The
absence of such an analysis is somewhat puzzling. The entirety of
the majority's analysis is a reference to Anderson v. Bessemer
City,
470 U.S.
564, 105 S. Ct. 1504 (1985). In that case, the Court found it
necessary to review the record before it reversed the Court of
Appeals' conclusion that the District Court's findings were clearly
erroneous. Id., at 576-581-1515. The Court's refusal to undertake
such a review for its summary disposition in the case before us is
especially disturbing when it is recalled that, under current Court
practice, the petitioner does not usually file the record with a
petition for certiorari. [
Footnote
5]
In my judgment, this Court does not use its scarce resources
wisely when it undertakes to engage in the de novo review of
factual records in relatively routine litigation. Cf. United States
v. Hasting,
461 U.S.
499, 516-518, 1984-1985 (1983) (STEVENS, J., concurring in
judgment). When such review is necessary to a disposition, however,
and the Court fails to provide it, the problems of this Court's
review are still more troubling. For, like a court of appeals that
issues an opinion that may not be printed or cited, this Court then
engages in decision-making without the discipline and
accountability that the preparation of opinions requires. [
Footnote 6]
I respectfully dissent from the Court's summary reversal.
Page 474 U.S.
936 , 941
Justice BRENNAN dissents from the Court's summary reversal
substantially for the reasons stated by Justice STEVENS.
Footnotes
Footnote 1 The proliferation
of this secret law has prompted extensive comment. See, e.g., R.
Posner, The Federal Courts 120-126 (1985); Wald, The Problem with
the Courts: Black-robed Bureaucracy, or Collegiality Under
Challenge?, 42 Md.L.Rev. 766, 781-783 (1983); Reynolds &
Richman, An Evaluation of Limited Publication in the United States
Courts of Appeals: The Price of Reform, 48 U.Chi.L.Rev. 573 (1981);
Reynolds & Richman, The Non-Precedential Precedent-Limited
Publication and No- Citation Rules in the United States Courts of
Appeals, 78 Colum.L.Rev. 1167 (1978); Stevens, Address to the
Illinois State Bar Association's Centennial Dinner, 65 Ill. Bar J.
508, 510 (1977). Cf. Grodin, The Depublication Practice of the
California Supreme Court, 72 Calif.L.Rev. 514 (1984).
Footnote 2 The petition for
certiorari submitted the Ninth Circuit's opinion as it was issued,
with the footnote explaining that the opinion could not be
published or cited. Two days after the petition for certiorari was
filed, the Ninth Circuit panel issued an order, as part of the
publication of the slip opinion, that "redesignated" the earlier
decision as "an authored opinion." See Kling v. County of Los
Angeles, No. 83-6193, Order and Opinion (Aug. 23, 1985). The
opinion is now published. See
769 F.2d
532 (1985).
Footnote 3 Compare Finding
of Fact No. 16, App. to Pet. for Cert. D-42 (" Plaintiff has failed
to show that she is a person who has a physical or mental
impairment which substantially limits one or more of her major life
activities, or has a record of such impairment or is regarded as
having such an impairment") with Finding of Fact No. 4, App. to
Pet. for Cert. D- 36 ("Plaintiff at all times herein mentioned
suffered from Crohn's disease, an inflamatory [sic] bowel disorder
involving the digestive tract which prevents passage and absorption
of food and causes in plaintiff unpredictable episodes of nausea,
vomiting, fever, headaches, loss of weight and acute abdominal pain
among other things and which can require rest, medication,
treatment, and hospitalization") and Finding of Fact No. 10, App.
to Pet. for Cert. D-39 ("The record reflected that in the ten
months preceding Dr. Crary's review, plaintiff had been
hospitalized four times for Crohn's disease, although plaintiff
only reported three hospitalizations").
Compare also Finding of Fact No. 12, App. to Pet. for Cert.
D-40-D-41 ( Dr. Crary's "rejection of plaintiff as a candidate for
the School on June 11, 1979 was for health reasons, because he
believed it was unlikely she could complete the rigorous program
and because he believed her health would be endangered if she
attempted to complete the program") and Finding of Fact No. 13,
App. to Pet. for Cert. D-41 ("Neither the Admissions Committee nor
Mary Duncan, Registrar, had the authority to overrule Dr. Crary's
medical decision") with Finding of Fact No. 18, App. to Pet. for
Cert. D-43 ("Plaintiff has failed to show that she was denied
admission to the School solely by reason of her affliction or
because she had Crohn's disease").
Footnote 4 Compare Finding
of Fact No. 7, App. to Pet. for Cert. D-37 (" Plaintiff's
application was considered by the Admissions Committee of the
School on April 5, 1979. Her acceptance academically by the School
was conditional due to her failure to achieve a passing score in
mathematics") with Pet. for Cert. 4-5 ("In April, 1979, by mistake,
respondent was given a letter unconditionally accepting her
application, even though her score on a mathematics portion of the
entrance examination was deficient, and even though she had not
been cleared for admission by the School's Student Health
Physician, Gerald C. Crary, M.D.. . .. In an interview on April 20,
1979, the School's Registrar, Mary J. Duncan, told respondent that
her acceptance was actually conditional on her presenting evidence
of tutoring and testing to establish the requisite thirteenth-grade
level of proficiency in mathematics concepts and problems, and on
her passing the physical requirements").
Footnote 5 See this Court's
Rule 21; Stevens, The Life Span of a Judge-Made Rule, 58
N.Y.U.L.Rev. 1, 13 (1983); R. Stern & E. Gressman, Supreme
Court Practice 424-429 (5th ed.1978).
Footnote 6 "In our law the
opinion has in addition a central forward-looking function which
reaches far beyond the cause in hand: the opinion has as one if not
its major office to show how like cases are properly to be decided
in the future. This also frequently casts its shadow before, and
affects the deciding of the cause in hand. (If I cannot give a
reason I should be willing to stand to, I must shrink from the very
result which otherwise seems good.) Thus the opinion serves as a
steadying factor which aids reckonability." K. Llewellyn, The
Common Law Tradition 26 ( 1960), quoted in Reynolds & Richman,
supra n. 1, at 1204.
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