Doe v. Rice

Citations: 800 F. Supp. 1041; 2 Am. Disabilities Cas. (BNA) 247; 1992 U.S. Dist. LEXIS 13212; 1992 WL 213258Docket: Civ. 91-1169CCC

Court: District Court, D. Puerto Rico; August 31, 1992; Federal District Court

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Plaintiffs John Doe, a former member of the Puerto Rico Air National Guard (PRANG), and Local 3936 of the American Federation of Government Employees, initiated this case against various officials, including the Secretary of the Air Force, alleging violations of 42 U.S.C. § 1983, § 1988, and the Fifth and Fourteenth Amendments due to unlawful discrimination based on Doe's handicap (AIDS). Doe, who had been with PRANG since 1967 and employed as a National Guard Technician since 1969, tested positive for HIV on June 29, 1990. Following this, he received a Special Order on September 21, 1990, relieving him of his duties and transferring him to the Standby Reserves, which led to his termination from technician employment based on his military discharge.

The case has gone through various hearings, with an initial determination that the court had jurisdiction, and subsequent hearings focused on the merits of the plaintiffs' claims. The plaintiffs argue that the Air National Guard Regulation (ANGR) 39-10, specifically Section F regarding HIV infection, violates constitutional rights. This regulation mandates medical evaluations for active duty members with HIV, stating that those without clinical illness should not be separated solely based on their HIV status. Additionally, plaintiffs allege peripheral violations of 10 U.S.C. §§ 1201-1221 and due process claims concerning property and liberty rights.

Members without military medical health care who show serologic evidence of HIV will be placed in the Standby Reserves if they cannot fulfill non-deployable roles. John Doe, who was not on active duty at discharge, received medical care through his technician employment benefits, and his case fell under paragraph 8-25(b). Plaintiffs argue this section conflicts with the August 4, 1988, Policy Statement from the Secretary of Defense, which mandates that individuals with HIV should remain within the United States and may be assigned to non-deployable positions. They contend that Section 8-25 discriminates against these reservists by exceeding Department of Defense restrictions. However, the policy grants the Secretaries of the Military the discretion to assign seropositive personnel to non-deployable roles. The Department of the Air Force, on May 16, 1989, reinforced this by stating that such personnel should only be assigned within the U.S. and to non-deployable units. This policy was communicated to Air National Guard Units on July 2, 1989. Consequently, paragraph 8-25(b) was in alignment with both the Department of Defense and Air Force policies at the time of Doe's transfer. Doe’s unit had not been mobilized overseas since 1967, though he had previously been deployed to Central America for short durations. The concept of deployability, as clarified by a defense witness, involves meeting specific medical standards necessary for global deployment.

An HIV seropositive reservist, despite being asymptomatic, is deemed non-deployable worldwide due to medical restrictions, including limited vaccination options and the inability to donate blood. Expert testimony from Dr. Rafael Rivera-Castaño indicated that individuals with HIV face risks from opportunistic diseases and must avoid injuries and infections. Dr. Carlos León-Valiente, who treated John Doe, confirmed that while Doe was asymptomatic at discharge, he could only travel to safe locations, avoiding areas with disease outbreaks or requiring vaccinations. Joseph Robinson Jr., National Guard Bureau Chief, highlighted that the National Guard is primarily focused on deployability, with few non-deployable positions. Although Doe’s squadron has not been mobilized overseas since 1967, testimonies emphasized that deployment decisions are military matters, with potential disciplinary action for refusal. Plaintiffs argue that the National Guard's federalization for mobilization, discrimination against individuals with HIV, and public health policies against such discrimination warrant a ruling against the National Guard's actions. However, the military's unique readiness needs and the strict physical standards for reservists’ deployability are emphasized, suggesting that these decisions are best left to military judgment.

The Air Force maintains that it has the discretion to determine that reservists who cannot be deployed overseas must be removed from deployable positions. Plaintiffs assert that the defendants violated their policy by not providing John Doe with a hearing and notice, as required by ANGR 39-10, paragraph 8-26, before transferring him to the Standby Reserves. This paragraph outlines discharge procedures, including notice requirements from Chapter 1, Section D, and the Administrative Discharge Board procedures in paragraph 1-23. However, the applicability of paragraph 8-26 to HIV seropositive reservists was revoked on August 10, 1990, prior to Doe’s discharge, negating his right to a hearing and notice.

Captain Robinson explained that the change acknowledged that an administrative discharge board lacks the medical expertise necessary for such cases. Plaintiffs' argument is inconsistent since they conceded that the fitness of HIV seropositive reservists should be determined medically. They also criticized the lack of a medical board convened for Doe. The established protocol, per Sgt. Romeo, dictates that a medical board is convened only after identifying non-deployable positions for which the reservist qualifies. As Doe was deemed non-deployable with no suitable position available, a medical review board was deemed unnecessary.

Additionally, reservists not on extended active duty do not have military-provided medical care, hence the National Guard avoids incurring costs for medical assessments that would serve no purpose. The procedure described by Captain Robinson is consistent with evaluating the individual suitability of HIV positive reservists for available positions. The plaintiffs’ claim that ANGR 39-10 contravenes Department of Defense and Air Force policies regarding HIV testing as a sole basis for separation is unfounded. Evidence shows Doe’s separation was due to his seropositive status and the unavailability of a compatible non-deployable position. Both policies allow for involuntary transfer to the Standby Reserve under these circumstances.

Finally, Doe's claim of due process infringement due to lack of hearing or appeal notification prior to his dismissal is undermined by the absence of a property interest in his technician position, as outlined in the National Guard Technicians Act (32 U.S.C. 709).

32 U.S.C. 709(e) mandates that a technician employed in a position requiring National Guard membership must be promptly separated from their technician role if they are separated from the National Guard or lose the required military grade. The statute requires that this technician receive written notice of termination at least thirty days before the effective date. The statute indicates that any property interest in the technician position ends upon separation from the National Guard, which has been upheld by courts, such as in Tennessee v. Dunlap. The only required procedural due process is the thirty-day notice, which was provided to Doe. 

Plaintiffs argue that the actions of the defendants violate Title 10 U.S.C. 1214 and 1215 concerning retirement or separation due to physical disability; however, these provisions are not applicable since Doe was not retired on such grounds, and evidence suggests he is not disabled. Additionally, the plaintiffs assert a violation of 10 U.S.C. 1004 due to the Governor of Puerto Rico not approving Doe's transfer. This claim lacks supporting evidence that the transfer lacked appropriate authorization.

The plaintiffs also claim that Doe's liberty interests, such as the right to work, seek education, and engage in contracts, have been infringed, but they fail to demonstrate how these rights are affected. They cite several unrelated cases, including one on employment prohibition, but do not connect them to Doe's situation. The court notes that Doe was only restricted from a deployable military position, not from all employment opportunities. Despite recognizing the hardships faced by Doe due to his situation, the court concludes that the plaintiffs have not shown a violation of constitutional rights by the defendants regarding the application of the PRANG regulations, particularly in light of medical considerations and the military's operational readiness.

The action is dismissed, with a note that plaintiffs claimed enlisted personnel who test seropositive for HIV in the regular Army and Air Force are allowed to serve and remain deployable, which the court recognizes but does not address due to the absence of an equal protection claim regarding reservists in the complaint. Plaintiffs highlighted a July 2, 1989 memorandum that established current Air Force policy, applicable to the Air National Guard, superseding previous documents. The notification procedure for separations requires compliance with specific regulations. During the August 10, 1990 weekend exercise, Doe learned of his HIV positive status from Dr. Miranda, who advised him to consult a private doctor, and later informed him he would be severed from the National Guard with a thirty-day sick leave period. Captain Robinson noted the need for compatibility between military and civilian positions for reservists. The only evidence presented regarding non-deployable positions was hearsay, while Major Urrutia testified to her search for such positions for Doe from July 1990 through 1991, although documents presented were from 1991 instead of the relevant period. Her credibility was affirmed, and Robinson stated that individuals are placed in the Selective Reserve when a non-deployable position is available.

A termination letter dated October 16, 1990, was sent to the plaintiff, indicating mandatory separation due to his discharge from PRANG, effective no earlier than November 19, 1990. Although the plaintiff does not assert a claim under the Rehabilitation Act, defendant William Miranda-Marin argues its inapplicability extensively in various court documents. Additionally, the authority to separate members from the Air National Guard lies with the State Adjutant General, who can delegate this to a Commander; since Colonel Manuel Guzmán issued the discharge order, the relevance of the plaintiff's argument is questioned. The plaintiff initially sought to keep his identity confidential to protect his seropositive status, privacy, and family from potential discrimination. However, it is noted that he chose to disclose his identity and health status in a major newspaper, which undermines his claim to confidentiality and protection from discrimination in employment and education.