Doe v. Rice
| Citation | 800 F. Supp. 1041 |
| Decision Date | 31 August 1992 |
| Docket Number | No. Civ. 91-1169CCC.,Civ. 91-1169CCC. |
| Parties | John DOE; and Local 3936 of the American Federation of Government Employees, Plaintiffs, v. Honorable Donald RICE, Secretary of the United States Air Force; Lt. General Conaway, Chief of the National Guard Bureau; Puerto Rico Air National Guard; William Miranda-Marin, the Adjutant General of the Commonwealth of Puerto Rico; Colonel Manuel A. Guzman of the Puerto Rico Air National Guard; Colonel Gilberto Colon, as Personnel Officer of the Puerto Rico Air National Guard; All Officials in Their Individual and Official Capacity, Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
COPYRIGHT MATERIAL OMITTED
Nora Vargas-Acosta, Vargas & Ramírez Law Offices, for plaintiffs.
Fidel Sevillano-del-Río, Asst. U.S. Atty., Mayra Maldonado, Dept. of Justice, Com. of Puerto Rico, for defendants.
This action for declaratory and injunctive relief arises from alleged violations to 42 U.S.C. §§ 1983, 1988, et seq. and the Fifth and Fourteenth Amendments of the Constitution of the United States. Plaintiffs John Doe, a former member of the Puerto Rico Air National Guard (PRANG) with over twenty-one years of civilian employment as a National Guard Technician, and Local 3936 of the American Federation of Government Employees, the union which represents National Guard technicians, brought this action alleging unlawful discrimination on the basis of a handicap (AIDS). Defendants include the Secretary of the Air Force, Chief of the National Guard Bureau, PRANG and various of its officials.
The undisputed facts are as follows:
Plaintiff John Doe has been a member of PRANG since March 1967. He was hired as technician pursuant to the National Guard Technician Act of 1968 in September 1969. On June 29, 1990, Doe tested positive for the Human Immune Deficiency Virus (HIV). On September 21, 1990 plaintiff received Special Order AC-73 by which defendant Colonel Manuel A. Guzmán, citing Air National Guard Regulation (ANGR) 39-10 Chapter 8 as his authority, informed him that effective September 17, 1990 he had been relieved of his duties, honorably discharged and transferred to the Standby Reserves. On October 16, 1990, he received a written communication from defendant Colonel Gilberto Colón, Personnel Officer of PRANG, informing him that he was no longer eligible to continue in his technician employment due to his discharge from military service. Various requests for revision of these decisions brought no replies. Plaintiffs filed this action.
Following an evidentiary hearing held on August 1, 1991, the preliminary issue of whether the Court had jurisdiction to entertain these matters, or whether Doe was required to exhaust administrative remedies was resolved in his favor in an Opinion and Order entered on November 7, 1991 (docket entry 32).
A consolidated hearing on the merits for preliminary and permanent injunction was held on December 16 through 18, 1991, and on February 13, 14, 18 and 19, 1992. The parties submitted their post-trial briefs on March 31, 1992.
Plaintiffs' action focuses on their primary contention — that ANGR 39-10 on its face and as interpreted and applied by defendants violates the Fifth and Fourteenth Amendments to the United States Constitution. Peripheral violations include allegations of noncompliance with 10 U.S.C. §§ 1201-1221, as well as procedural and substantive due process claims related to property rights, liberty rights and interests. We now address them in turn.
ANGR 39-10 Section F Acquired Immune Deficiency Syndrome at paragraph 8-25 states as follows:
(Emphasis ours.)
It is undisputed that John Doe was not on active military duty at the time of his discharge and transfer to the Standby Reserves, and that his medical care was privately provided through medical plan benefits to which he was entitled due to his technician employment. That is, Doe's case was processed under paragraph 8-25(b).
A major theme throughout plaintiffs' pleadings, which provides the theory for the case, is that this section directly contravenes the August 4, 1988 Policy Statement of the Secretary of Defense, which states at Paragraph B7:
Due to the high priority assigned to the continued medical evaluation of military personnel with serologic evidence of HIV infection, such individuals shall be assigned within the United States. Additionally, the Secretaries of the Military may restrict individuals with serologic evidence of HIV infection to non-deployable units or positions for purposes of force readiness. Further ... the Secretaries of the Military Departments may, on a case by case basis, limit assignment of such individuals with respect to the nature and location of the duties performed in accordance with operational requirements.
(Emphasis ours.)
Seizing upon the only mandatory restriction — the limitation of assignment to within the United States — and pointing to the discretional nature of the limitation to non-deployable units for HIV seropositive reservists, the plaintiffs argue that Section 8-25 as interpreted and/or applied is discriminatory because it goes beyond the restriction of the Department of Defense.
In contesting the restriction of non-deployability for HIV seropositive reservists vis a vis the Department of Defense's discretional tone on the issue,1 plaintiffs have ignored the reality of the policies and regulations. The Department of Defense, in its August 1988 statement, delegated to the Secretaries of the Military the decision to restrict seropositive members of their branches to non-deployable positions. The Department of the Air Force, on May 16, 1989, issued its Policy on Identification, Surveillance and Administration of Personnel Infected with Human Immune Deficiency Virus (HIV) — Action Memorandum in which at Section B, paragraph 9 it states:
John Doe indicated that his unit has not been mobilized outside the United States since 1967, although it has been mobilized to the United States about every two years. However, Doe himself has been deployed to Honduras, Venezuela and Panama for periods of seven to ten days.
Defendants' witness Sgt. Michael Romeo, Superintendent of Physician Standards, Medical Waivers and Aerospace Programs, clarified that the concept of deployability involves meeting specific medical standards, i.e., immunizations, specific training, ability to donate blood, in order to be considered medically qualified for worldwide deployment. Thus, an HIV seropositive reservist, although completely asymptomatic, would not be deployable worldwide due to, among other things, restricted ability to be immunized and inability to donate blood. With regard to deployability as a function of medical limitations, plaintiff's own medical expert, Dr. Rafael Rivera-Castaño, testified that persons with HIV are subject to opportunistic diseases, that one cannot tell when symptoms might appear. HIV patients must avoid possible bruises, cuts, and individuals with other diseases; good nutrition, rest and exercise are very important.
Dr. Carlos León-Valiente, plaintiffs' expert on HIV and who has treated John Doe, testified that at the time of his discharge, Doe was asymptomatic and not disabled. On cross-examination he stated that plaintiff could travel as long as he does not expose himself to places dangerous not only to him but to others, such as Peru which was having a cholera epidemic. Doe could not travel to places where he would be exposed to bacterial infection or fungi, or places for which he would require vaccinations, such as cities where epidemics are present or where possibility of exposure to unknown disease exists. Dr. León-Valiente also emphasized the possibility and unpredictability of the onset of symptoms.
Further explanation of the concept of deployability was provided by the testimony and Declaration (defendants' Exhibit A) of Joseph Robinson, Jr., Chief of Enlisted Policies and Programs, National Guard Bureau, who is also a captain in the United States Air Force. Captain Robinson explained that the National Guard is different from the regular active duty Air Force in that the National Guard's whole reason for being is to be ready...
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Charles v. Rice, 92-2338
...General of Puerto Rico, and two PRANG officers. The district court reached the merits and ruled in favor of defendants. See Doe v. Rice, 800 F.Supp. 1041 (D.P.R.1992). We vacate the decision with respect to plaintiff's claim for back pay for his technician job, but affirm the decision on th......