EDMUND V. LUDWIG, UNITED STATES DISTRICT JUDGE
Defendants move for reconsideration of the order entered May 12, 1988 denying their cross-motion for summary judgment as to count 1, violation of the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 791, 794, and count 3, violation of due process.
On August 15, 1986 plaintiff was dismissed from his position as a special agent of the FBI. He filed this action asserting that the dismissal violated his rights under the Rehabilitation Act of 1973 and his constitutional right to due process. He contends that he has a mental health disorder known as "compulsive gambling" and that his dismissal resulted from an incident caused by this condition. According to defendants, the reasons were that plaintiff, in order to gamble at a casino in Atlantic City, misappropriated government funds, misused a government vehicle and made false official statements. They do not concede that plaintiff is a compulsive gambler but maintain that he seeks to excuse his behavior by claiming the protection of the Rehabilitation Act.
I. Rehabilitation Act.
In their cross-motion for summary judgment, defendants contended that compulsive gambling is not a legal defense to collateral criminal activity. This argument was rejected as inapplicable to a civil action and, in particular, a Rehabilitation Act violation. In their motion for reconsideration, defendants maintain that even if plaintiff is a compulsive gambler, he is not "otherwise qualified" - a Rehabilitation Act requirement, 29 U.S.C.A. § 794 - because his criminal conduct rendered him unfit to be an FBI agent. Defendants urge that to accommodate plaintiff would be inconsistent with the requirements for being an FBI agent and would cast doubt upon the Bureau's integrity. This issue was considered in the original submission. Whether plaintiff was "otherwise qualified" cannot be ruled on at this stage, as a matter of law. See Memorandum, May 12, 1988, at 8-9.
II. Due Process.
Defendants also move for reconsideration of count 3, the due process claim. The complaint alleges that representatives of the FBI assured plaintiff that if he made a full confession regarding his compulsive gambling, replaced the government's money and sought treatment he would not be dismissed. The complaint states that because plaintiff confessed, relying on these assurances, the dismissal violated his due process rights.
In their cross-motion for summary judgment, defendants contended that count 3 should be dismissed because of plaintiff's failure to exhaust administrative remedies. In their motion for reconsideration, they contend that plaintiff's exclusive remedy for discrimination based on handicap is under the Rehabilitation Act.
The 1978 amendments to the Rehabilitation Act made available to federal employees all the remedies, procedures and rights available under Title VII. See 29 U.S.C.A. § 794a(a)(1) ("The remedies, procedures and rights set forth in section 717 of the Civil Rights Act of 1964 . . . including the application of sections 706(f) through 706(k) . . . shall be available, with respect to any complaint under section 791"). Two years prior to the enactment of these amendments, the Supreme Court held that Title VII provided the exclusive judicial remedy for federal employment discrimination. Brown v. General Serv. Admin., 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976).
Courts have consistently held that the Brown analysis is applicable to cases involving the Rehabilitation Act. See, e.g., McGuinness v. United States Postal Serv., 744 F.2d 1318, 1322 (7th Cir. 1984); Shirey v. Devine, 216 U.S. App. D.C. 369, 670 F.2d 1188, 1191 n.7 (D.C. Cir. 1982) (dictum); Desroches v. United States Postal Serv., 631 F. Supp. 1375, 1379 (D.N.H. 1986) ("The subsequent decision by Congress to incorporate the Title VII remedies into the Act evidences congressional intent that the statutory remedies be the exclusive means for vindicating rights against federal employers"); Connolly v. United States Postal Serv., 579 F. Supp. 305, 307 (D. Mass. 1984):
Although we cannot be certain that Congress was aware of [the Brown ] decision when in section 505(a)(1) it created a judicial remedy identical to Title VII for federal discrimination against the handicapped, we also cannot believe that, given the Brown decision, Congress would have wanted us to interpret the Act as allowing the handicapped - alone among federal employees or job applicants complaining of discrimination - to bypass the administrative remedies in Title VII.
McGuinness, 744 F.2d at 1322.
While defendants correctly argue that the Rehabilitation Act is the exclusive remedy for discrimination based on a handicap, their "analysis is incomplete." Arnold v. United States, 816 F.2d 1306, 1311 (9th Cir. 1987). The federal discrimination statutes do not preclude separate remedies for unconstitutional action other than discrimination. See, e.g., Otto v. Heckler, 781 F.2d 754, 757 (9th Cir. 1986) (Title VII); Ethnic Employees of the Library of Congress v. Boorstin, 243 U.S. App. D.C. 186, 751 F.2d 1405, 1415-16 (D.C. Cir. 1985) (Title VII); Nolan v. Cleland, 686 F.2d 806, 814-15 (9th Cir. 1982) (Title VII); Desroches, 631 F. Supp. at 1379 (Rehabilitation Act); Munoz v. Orr, 559 F. Supp. 1017, 1019-20 (W.D. Tex. 1983) (Title VII). In those cases, the factual predicate for those claims is not the discrimination on which Rehabilitation Act violation is based. Desroches, 631 F. Supp. at 1379. Here, assuming that the complaint states a cause of action for violation of due process, the predicate for the due process claim is distinguishable from that underlying the discrimination claim.
An order follows.
AND NOW, this 14th day of October, 1988 defendants' motion for reconsideration of their cross-motion for summary judgment is denied.