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View Case Details
 
DONALD R. NEWLAND Plaintiff-Appellant
vs.
JOHN H. DALTON Secretary of the Navy Defendant-Appellee.
 
Case:
No. 94-55984
 
Location:
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
 
Date:
April 18, 1996 Filed
 
Attorneys:
Ronald P. Ackerman Los Angeles California for the plaintiff-appellant.
Nora M. Manella United States Department of Justice Los Angeles California for the defendant-appellee.
 
Court:
Before: Jerome Farris Melvin Brunetti and Alex Kozinski
 
Author:
The Hon. Justice Melvin Brunetti
 

In June of 1991 Newland was arrested after attempting to fire an assault rifle at individuals in a bar. At the time he was a civilian employee of the United States Navy working as a utilities systems repair operator at the United States Marine Corps Air Ground Combat Center in Twenty Nine Palms California. On September 27 1991 the Navy terminated Newland's employment for "notoriously disgraceful conduct."

Newland filed a complaint in the district court on December 16 1993 alleging that because he is an alcoholic his dismissal violated the Rehabilitation Act of 1973 29 U.S.C. Sec. (s) 791 794 and regulations of the Equal Employment Opportunity Commission. Seeking reinstatement he argues that what he describes as a "drunken rampage" was the direct result of his alcoholism.

The Navy moved for a dismissal for failure to state a claim. A hearing on the motion was scheduled for May 16 1994. Newland filed his opposition to the motion to dismiss on April 21, 1994. On April 24, 1994 the district court granted the motion to dismiss and issued a separate order dismissing the action without prejudice. Five days later on April 29 Newland filed an amended complaint alleging that his dismissal also violated 5 U.S.C. Sec. 7513(a) which limits permissible employment actions against agency employees to those which "promote the efficiency of the service." The district court refused to consider the amended complaint concluding that because the action had already been dismissed the amended complaint "has no legal effect." Newland subsequently moved for leave to amend the complaint. The district court denied the motion because the case had previously been dismissed without prejudice.

Newland argues the district court erred both in finding that he failed to state a claim under the Rehabilitation Act and dismissing the complaint without granting leave for amendment. We affirm.

The Rehabilitation Act

The Rehabilitation Act does not immunize Newland from the consequences of his drunken rampage. See Collings v. Longview Fibre Co. 63 F.3d 828 832-33 (9th Cir. 1995); Maddox v. University of Tennessee 62 F.3d 843 848 (6th Cir. 1995). Alcoholism is a recognized handicap Fuller v. Frank 916 F.2d 558 561 (9th Cir. 1990) but the majority of courts have held that while the Rehabilitation Act ("Act") protects employees from being fired solely because of their disability they are still responsible for conduct which would otherwise result in their termination. See Maddox 62 F.3d at 848 (employers subject to Act permitted to discipline for egregious or criminal conduct including off-duty drunk-driving regardless of disability); Despears v. Milwaukee County 63 F.3d 635 637 (7th Cir. 1995) (alcoholic employee responsible for off-duty drunk driving arrest because alcoholism did not compel driving the car); Little v. F.B.I. 1 F.3d 255 259 (4th Cir. 1993) (employer subject to Act permitted to discipline for egregious or criminal conduct and thus did not violate act by discharging an employee who was intoxicated while on duty and was involved in several off-duty alcohol related incidents).

These courts have concluded that firings precipitated by misconduct rather than any handicap do not violate the Act. See e.g. Little 1 F.3d at 259. While there is precedent suggesting that if the misconduct is causally related to the disability it cannot be grounds for termination Teahan v. Metro North Commuter R.R. Co. 951 F.2d 511 516-17 (2nd Cir. 1991) cert. denied 506 U.S. 815 113 S. Ct. 54 121 L. Ed. 2d 24 (1992) we have adopted the approach of the Little court. Collings 63 F.3d at 833. In Collings after citing Little we concluded that a termination based on misconduct rather than the disability itself was valid. Id. While Collings involved an Americans with Disabilities Act ("ADA") claim Section 501(g) of the Rehabilitation Act 29 U.S.C. Sec. 791(g) incorporates ADA standards for claims alleging "non affirmative action employment discrimination." *fn1

Newland recognizes as he must that he was terminated for his conduct. See Collings 63 F.3d at 833. His termination was not in retribution for his alcoholism but rather was in response to his attempt to fire an assault rifle inside a bar. See id. Thus the termination did not violate the Act. Attempting to fire a weapon at individuals is the kind of egregious and criminal conduct which employees are responsible for regardless of any disability. See Maddox 62 F.3d at 848; Little 1 F.3d at 259.

The Amended Complaint

In arguing that the district court erred in refusing to consider his amended complaint Newland relies on the broad language in Fed. R. Civ. P. 15(a) that leave to amend complaints should be freely given. While noting that the dismissal was without prejudice he emphasizes that his amended complaint would not have been timely if filed separately at the time of the dismissal. He also notes that he filed his amended complaint prior to the scheduled hearing on the motion to dismiss and prior to his receipt of Court's order granting dismissal.

The district court could properly deny leave to amend the complaint after it had already dismissed the action. See Allen v. Veterans Admin. 749 F.2d 1386 1389 (9th Cir. 1984). In Allen we stated:

A plaintiff's right to amend continues after the complaint is dismissed so long as the action itself has not yet been dismissed and the amended complaint would itself be timely.

Id. Here the district court dismissed the action prior to the amendment. Thus under Allen Newland's right to amend his complaint expired prior to the filing of his amended complaint. Moreover Allen also suggests that any timeliness issues pertaining to Newland's new complaint do not Counsel against the district court's decision but rather are an additional bar to the filing of it as an amended complaint. 749 F.2d at 1389. *fn2

Newland argues the dismissal was an abuse of discretion because it precluded his right to amend prior to the hearing on the motion to dismiss. While Fed. R. Civ. P. 15(a) encourages leave to amend district courts need not accommodate futile amendments. Klamath-Lake Pharmaceutical Ass'n v. Klamath Medical Service Bureau 701 F.2d 1276 1293 (9th Cir. 1983) cert. denied 464 U.S. 822 78 L. Ed. 2d 96 104 S. Ct. 88 (1983). The district court clearly believed that no amendment would allow Newland to state a claim under the Rehabilitation Act.

Furthermore because the district court dismissed the action without prejudice the dismissal itself did not prevent Newland from filing another complaint under either the Act or 5 U.S.C. Sec. 7513(a). Any barriers preventing him from re-filing the amended complaint like timeliness are flaws particular to the amended complaint. Once the motion to dismiss was filed it was up to Newland and his Counsel to recognize the need to make any necessary amendments to his complaint at the time he filed his opposition to the motion.

 
Notes:

*fn1 In his complaint Newland alleged violations of Sections 501 and 504 of the Rehabilitation Act 29 U.S.C. Sec.(s) 791 794 (1994). Section 504 does not provide a cause of action for federal employees against their employer. Johnston v. Horne 875 F.2d 1415 1418 (9th Cir. 1989). Thus Newland must proceed under Section 501 and we do not consider his Section 504 claim. While Maddox and Despears concerned Section 504 claims the plaintiff in Little brought his claim under both Sections 501 and 504. 1 F.3d at 257. Collings is applicable to claims brought under both sections of the Act.

*fn2 The requirement in Allen that the amended complaint be independently timely does seem to impose a heavy burden on plaintiffs whose initial filing barely avoids being barred by the statute of limitations and later requires amendment so as to include facts which state a cause of action. Here however Newland attempts to bring an independent claim which he concedes was untimely when he filed his first amended complaint.