Petition for Writ of Certiorari — Doe v. Garrett

90-

CLERK

FILED

NOV 15 1990

YOSEPH F. SPANIOL, JR.

a *" Supreme Court, U.S,

-8 0

ey

No. 90-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, i990

JOHN DOE,

Petitioner,

Ve

H. LAWRENCE GARRETT, as

Secretary of the Department of

the Navy, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

William J. Sheppard

SHEPPARD & WHITE, P.A.

215 Washington Street

Jacksonville, FL 32202

(904) 356-9661

QUESTIONS PRESENTED

i. Is the absolute "military

exception" applied by some courts to Title

VII (42 U.S.*%. §2000e, et — seq. ]

legitimately applied to bar the claim of an

Human Immunodeficiency Virus ("HIV") -

positive Naval Reservist who was discharced

based solely on his handicap in violation

of the antidiscrimination provision of the

Rehabilitation Act [29 U.S.C. §794]?

2. May an HIV-positive Naval

Reservist pursue his claims that he was

deprived of protected liberty and property

interests when he was discharged on the

sole basis of his handicap, where the Navy

changed its initial policy prohibiting

discharge of HIV-positive personnel after

his enlistment?

ii

PARTIES

In addition to the named respondents,

former parties to this lawsuit are former

Secretary of the Navy William Ball and

former Secretary of the Navy James Webb.

iii

Page

TABLE OF AUTHORITIES... eeeeevwe#ee*#eets#e#eee#eeee#e#e# -V

OPINIONS Din #-66e6666 006 6 eesieesis cosdoceva

0 ee ee

STATUTORY PROVISIONS AT ISSUE............-2

STATEMENT OF THE re re eee ee ee

1. Proceedings in the District Court...4

2. Opinion of the Court of Appeals.....7

REASONS FOR GRANTING THE WRIT..........--

THE LOWER COURT DECIDED AN IMPORTANT

QUESTION OF FEDERAL STATUTORY LAW, THE

APPLICATION OF THE REHABILITATION ACT

TO THE MILITARY, AS WELL AS AN

IMPORTANT QUESTION OF FEDERAL

CONSTITUTIONAL LAW, BOTH OF WHICH

CONFLICT WITH DECISIONS BY THIS COURT. 10

CONCLUSION... cc ccccccccccccccsesccccccccs 20

iv

TABLE OF AUTHORITIES

Cases 3 Pages

Alexander v. Choate, 469 U.S. 287

Ee a ae, FT

Cannon v. University of Chicago, 441

U.S. 677 (1979) wccccccvcccsccccssecsesces td

Consolidated Rail Corp. v. Darrone, 465

U.S. 624 (1984) wcccccccccccvesccschaygady lS

Commission of New York City, 463 U.S.

582 C19SS) cccccccccccceveccesccsesccvecedd

, 830 F.2d 354 (D.C.

Cir. rt Ve PEEPERERELEREERELELELELELEEEEEE?

School Board of Nassau County v. Arline,

480 U.S. 273 CASOTPcvcccceccccencccccccesl

Smith v. Christian, 763 F.2d 1322 (11th

Cir. BOSOP se Ser eccctiscaceseseovessecaseesena

Southeastern Community College v. Davis

YY Ses be .. | PSyeRrSy ere Spe

CONSTITUTION AND STATUTES

U.S. COnset. GMOMGMONRE Viccccccccececes 5,19

2B U.S.C. § L2SE(1) -cvccccccccvveccescces 2

Be SeBeSec 8 FEhccvcsccecvsstvovssvvceses 8,9

29 U.S.C. § 794(a) cer ccvceveves 2,7-9,11-18

OAR ny A Me i, AT Nill A! Ln! vente

oe alien ao a

ACD: 1 eR te 6 BE KH nw

29 U.S.C. § 794a(Aa) (1). eee eee ee eee 8,11

23 U.S.C. § 794a(a) (2)... e00022-3,7,11,15

42 U.S.C. §2000d, et seq.

(Title VI) wccccccccccccccccceccec cB, 10°1$

42 U.S.C. §2000e, et seq.

(Title VIL) wc cece eee eee e 6 6,8,10-12,14,15

vi

No. 90-

IN THE

SUPREME COURT OF THE UNITED STATES

JOHN DOE,

Petitioner,

Vv.

. H. LAWRENCE GARRETT, as

Secretary of the Department of

the Navy, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OCF APPEALS

FOR THE ELEVENTH CIRCUIT

OPINIONS BELOW

The opinion of the United States Court

of Appeals for the Eleventh Circuit is

reported at 903 F.2d 1155 and is reproduced

in the appendix at la - 35a. The opinion

of the United States District Court for the

Middle District of Florida is reported at

725 F.Supp. 1210 and is reproduced in the

appendix at 36a - 64a.

JURISDICTION

The judgment of the court of appeals

was entered on June 25, 1990. The decision

of the court of appeals denying

petitioner's petition for rehearing and

suggest.on for rehearing en banc was

entered on August 17, 1990. This Court has

jurisdiction pursuant to 28 U.S.C.

§1254(1).

STATUTORY PROVISIONS AT ISSUE

29 U.S.C. §794 (a) provides in

pertinent part:

No otherwise qualified

individual with handicaps in the

United States ... shall, solely

by reason of her or his handicap,

be excluded from the

participation in, be denied the

benefits of, or be subjected to

discrimination under any program

or activity receiving Federal

financial assistance or under any

program or activity conducted by

any Executive agency or by the

United States Postal Service.

29 U.S.C. §794a(a) (2) provides:

(2) The remedies, procedures,

and rights set forth in Title VI

of the Civil Rights Act of 1964,

[42 U.S.C. §2000d et seq.], shall

be available to any ~»person

aggrieved by any act or failure

to act by any recipient of

Federal assistance or Federal

provider of assistance under

section 504 of this Act [29

U.S.C. § 794].

STATEMENT OF THE CASE

The issues presented in this case are

1) whether the antidiscrimination provision

of the Rehabilitation Act, which proscribes

discriminatory treatment by Executive

agencies based solely on handicap, protects

military personnel, and 2) whether an

HIV-positive enlistee was deprived of

protected property and liberty interests

without due process when he was discharged

on the basis of his’ handicap, when

pertinent Naval regulations in effect at

LTA ami Ok iat eh ree ace trate. Pity BP te Dhaai at AE aod Bp

the time of his enlistment explicitly

prohibited the discharge of HIV-positive

personnel on that basis.

The initial basis for federal

jurisdiction was 28 U.S.C. §§ 1331 & 1343.

1. Proceedings in the District Court

Petitioner, John Doe, enlisted in the

Navy in 1972 and served, with a short break

in 1975, until 1977. In 1981, he

reenlisted in the Naval Reserves and served

until his discharge in January, 1985. In

July of that year, he was accepted into the

Naval Reserve Canvasser Recruiter Program

for a two-year term as a temporary active

duty Navy recruiter. He reported for duty

on November 25, 1985. Ten days later, the

Secretary of the Navy promulgated a

regulation, Instruction 5300.30, providing

that Naval personnel infected with the AIDS

virus but who are asymptomatic "shall be

retained in service." Following his

receipt of excellent evaluations, Doe's

initial term of service was extended, on

July 8, 1986, to September 30, 1987. On

July 20, 1986, however, Doe learned that he

had tested positive for the Human

Immunodeficiency Virus, and he was informed

that, because of his infection, he would

not be allowed to continue on active duty

beyond September 30, 1986, despite the

previous extension of his service to

September 30, 1987.

On September 22, 1986, Doe brought

suit, including a motion for a preliminary

injunction, alleging violations of Section

791 and Section 794 of the Rehabilitation

Act and of the Fifth Amendment's’ Due

Process Clause. Upon instruction by the

district court to exhaust all possible

administrative remedies, Doe turned to the

Board for Correction of Naval Records,

which concluded that the Navy had erred in

awe a

em AL Kh nat es let sheet:

discharging him and consequently awarded

Doe the compensation to which he _ was

entitled had he enuplevad his initial term

of service, through September 30, 1987.

Meanwhile, on April 20, 1987, the Secretary

of Defense issued a regulation reversing

Navy policy on HIV-positive personnel,

mandating that such individuals were

ineligible for active duty service. In

April, 1988, Doe returned to the district

court, alleging that the administrative

remedies he received failed to afford him

sufficient relief on his Rehabilitation Act

and constitutional claims.

The district court granted summary

judgment on behalf of the Navy on all

claims. The court first considered whether

the Rehabilitation Act applied to uniformed

members of the armed forces. The court

reasoned that it "must look to the remedial

framework of Title VII" to determine the

scope of the Rehabilitation Act, and

recognized that several of the courts of

appeals which have addressed the issue have

held that uniformed military personnel may

not enforce Title VII. The district court

concluded that Doe consequently could not

invoke the protection of the Rehabilitation

Act. The court also rejected Doe's claims

that he was deprived of protected property

and liberty interests without due process

in violation of the Fifth Amendment.

2. Opinion o A s

The court of appeals affirmed. Noting

that HIV-positivity is clearly a "handicap"

unaer the terms of the Rehabilitation Act,

the court of appeals addressed Doe's claim

that the district court erred by relying on

Title VII case authority when Section

794a(a) (2) of the Act directs enforcers of

Section 794 of the Act, its

antidiscrimination provision, to the

_e <a

3

;

}

}

Nees cs ome

eS Saar Same eh eee)

"remedies, procedures, and rights" of Title

VI. Doe argued that Congress expressly

distinguished between Section 794 of the

Act, which adopted the remedies of Title

VI, and Section 791 of the Act, (its

affirmative action provision), which, in

Section 794a(a)(1), adopted the remedial

framework of Title VII.

Acknowledging this distinction, which

the district court failed to do, the court

of appeals nonetheless upheld the district

court's application of a "military

exception" to Section 794 of the

Rehabilitation Act. Although recognizing,

for example, that “it is established, as a

general matter, that Title VI - and by

extension Section 794 - does not

incorporate Title VII's requirement of

exhaustion of administrative remedies," the

court of appeals nonetheless approved of

several cases holding that enforcers of

Section 791 and Section 794 alike must

first exhaust all administrative remedies.

According to the court,

We think this conclusion goes

far to support the district

court's reasoning that Title VII

caselaw must be consulted - in

considering the application of

the Rehabilitation Act to

uniformed military personnel ....

Just as it would be incongruous

to require persons claiming

discrimination on grounds of sex,

race, religion, or national

origin - but not handicapped

discrimination claimants - to

follow Title VII procedures in

suing federal employers, so it

would be incongruous to allow

uniformed military personnel to

bring discrimination claims

against the military based on

handicap, when statutory claims

based on sex, race, religion, or

national origin are barred.

Doe v. Garret, 903 F.2d 1455, 1461 (11th

Cir. 1990). The court of appeals also

rejected Doe's due process claims.

pesices!

REASONS FOR GRANTING THE WRIT

THE LOWER COURT DECIDED AN

IMPORTANT QUESTION OF =FEDERAL

STATUTORY LAW, THE APPLICATION OF

THE REHABILITATION ACT TO THE

MILITARY, AS WELL AS AN IMPORTANT

QUESTION OF FEDERAL

CONSTITUTIONAL LAW, BOTH OF WHICH

CONFLICT WITH DECISIONS BY THIS

COURT.

The court of appeals endorsed a

military exception to the

antidiscrimination provision of the

Rehabilitation Act despite, first, no

implicit or explicit legislative intent to

do so, and second, despite the fact that

the Congress explicitly chose to apply the

remedies available under Title VI, rather

than Title VII, to this provision of the

Act. The appellate court thus applied a

nonstatutory exception that only a few

appellate courts have recognized in the

narrow .confines of Title VII, and applied

it to a completely different Act. Even

-10-

more problematically, the court of appeals

applied this nonstatutory military

exception to a provision which explicitly

rejects Title VII as an enforcement scheme.

To reiterate, Congress chose in Section

794a(a)(1) of the Rehabilitation Act to

adopt Title VII as the enforcement scheme

for Section 791 of the Act; in sharp

contrast, in Section 794a(a)(2) of the Act,

which immediately follows, Congress chose

Title VI as the enforcement model for

Section 794 of the Act, its

‘antidiscrimination provision. The

legislative choice could hardly be clearer.

Thus, the court of appeals applied a

nonstatutory exception to the

Rehabilitation Act, an exception

originating in a statute, Title VII, which

Congress expressly chose not to apply to

Section 794 of the Act. Only the Eleventh

Circuit Court of Appeals has applied this

-ll-

Title VII-based exception to Section 794 of

the Rehabilitation Act. See Doe v.

Garrett, 903 F.2d 1455 (lith Cir.1990);

v. Christian, 763 F.2d 1322 (11th

Cir. 1985), See also Milbert v. Koop, 830

F.2d 354 (D.C. Cir. 1987) (recognizing

military exception to the Rehabilitation

Act, but not applying it).

Resolution of this question of

statutory interpretation by this Court is

necessary in light of previous Supreme

Court decisions rejecting, indeed in the

very context of the Rehabilitation Act, the

mode of statutory interpretation employed

by the lower court. In Consolidated Rail

ion v. a ne, 465 U.S. 624

(1984), for instance, this Court rejected a

reading of Section 794 that would have

incorporated a significant limitation found

in Title VI. In Darrone, this Court

refused to limit the reach of Section 794

-12-

to only those “employment practice[s}] a

where a primary objective of the Federal

financial assistance is to provide

employment," (emphasis added), which is the

language adopted in Title VI. Id. at 636.

The Darrone Court observed that Section 794

of the Rehabilitation Act adopts’ the

“remedies, procedures, and rights" of Title

VI for "any recipient of Federal

assistance." Id. at 635 (emphasis added).

According to this Court, these terms do not

incorporate the "primary objective"

limitation of Title VI. Id. Indeed, “it

would be anomalous to conclude that the

section, designed to enhance the ability of

handicapped individuals to ensure

compliance with [Section 794] ..., silently

adopted a drastic limitation on the

handicapped individual's right to sue

federal grant recipients for employment

discrimination." Id. In short, Darrone

-13-

unequivocally rejected the application, to

Section 794, of a statutory limitation

found in Title VI, much less a nonstatutory

limitation occasionally applied to Title

Vit.

Similarly, this Court, in Alexander v.

Choate, 469 U.S. 287 (1985), refused to

apply another limitation imposed upon in

Title VI to Section 794 of the

Rehabilitation Act. In G Lians

Association v. Civil Service Commission of

New York City, 463 U.S. 582 (1983), this

Court held that a private right of action

exists for the enforcement of Title VI.

Id. at 594, citing Cannon v. University of

Chicago, 441 U.S. 677 #(1979). The

Guardians Association Court, however, also

recognized a limitation on Title VI,

namely, that only instances of intentional

discrimination may be enforced under the

statute. In Alexander, this Court refused

-14-

to apply this limitation on Title VI to

Section 794 of the Rehabilitation Act,

despite the adoption, in Section

794a(a) (2), of Title VI “remedies,

procedures, and rights." Together, one

and Alexander make clear that this Court

will not hastily engraft upon Section 794

of the Rehabilitation Act limitations found

in Title VI, much less wholesale exceptions

imposed upon Title VII.

The court of appeals displayed

discomfort with the notion that military

personnel alleging discrimination on the

basis of handicap should be entitled to

press their claims, where some courts have

rejected Title VII claims by military

personnel that they suffered discrimination

on the basis of race, gender, ethnicity,

and religion. Yet the court of appeals

disregards a fundamental distinction

between Title VII and the Rehabilitation

yh stale Lk

Sa EY ITE DOGO DS Oe ET PN,

Act. Only the latter statute acknowledges

in some cases that discrimination is

permissible, if a handicapped person

absolutely cannot perform a job duty.

Congress, in other words, has built in a

statutory mechanism that would ensure that

Executive agencies like the military are

authorized to discriminate against

handicapped individuals if they cannot

perform their duties. Of course, the Act

creates a number of safeguards to ensure

that only those handicapped individuals who

clearly cannot fulfill their duties are

excluded. As this Court explained in

School Board of Nassau County v. line,

480 U.S. 273 (1987), for instance, to

determine whether a handicapped individual

is "otherwise qualified" under Section 794

requires an “individualized inquiry." Id.

at 287. According to the Arline Court:

-16-

"An ‘otherwise qualified' person

is one who is able to meet all of

a program's requirements in spite

of his handicap." Southeastern

Community College _v. Davis, 442

U.S. 397, 406 (1979). In the

employment context, an otherwise

qualified person is one who could

perform "the essential functions"

of the job in question. 45

C.F.R. §84.3(k) (1985). When a

handicapped person is not able to

perform the essential functions

of the job, the court must also

consider whether any “reasonable

accommodation" by the employer

would enable the handicapped

person to perform those

functions. Id.

Id. at 287, n.17.

In short, the Navy, if Doe were not

"otherwise qualified," could legitimately

discharge him solely on the basis of

testing positive for the Human

Immunodeficiency Virus. This explicit

statutory authorization of discrimination

in certain instances is what distinguishes

the Rehabilitation Act from Title VII.

Federal agencies are absolutely barred

under Title VII from discriminating on the

basis of race, gender, ethnicity, and

religion; in contrast, the Rehabilitation

Act proscribes discrimination only if an

individual is otherwise qualified to

perform a job duty. All evidence produced

at the district court indicated that Doe

performed admirably as a

canvasser-recruiter, with his handicap

having absolutely no detrimental effect on

his ability to fulfill his duties. The

Rehabilitation Act is different from Title

VII, because while it proscribes

Giscrimination, it also affords federal

agencies and recipients of federal funds

sufficient flexibility to determine the

qualification of handicapped individuals

for various job duties, and indeed the

right to exclude those individuals

completely if not otherwise qualified.

-18-

Similarly, the decision of the court

of appeals rejecting Doe's constitutional

claims conflicts with well-settled case

authority. Ten days after Doe enlisted as

a Navy recruiter, the Navy issued a

regulation explicitly mandating that

asymptomatic HIV-positive personnel be

“retained in service."

Eighteen months later, however, while

Doe was still serving his two year tern,

the Secretary of Defense reversed this

policy. The court of appeals rejected

Doe's claim that his discharge under the

authority of the second regulation deprived

him of protected liberty and property

interests, created by the initial

regulation, without due process. The

court's concJusion in this regard is

erroneous as well.

-19-

ee a

CONCLUSION

For the reasons described above, the

petition for writ of certiorari should be

granted.

Respectfully submitted.

Lu $elasyed

Wm. J. Sheppard

Sheppard & White, P.A.

215 Washington Street

Jacksonville, FL 32202

(904) 356-9661

2 it Mh alae es easel

November 16, 1990

-20-

APPENDIX

John DOE, Plaintiff-Appellant,

Vv.

H. Lawrence GARRETT, III, as Secretary

of the Department of the Navy, and

J.W. Harris, as Commanding Officer,

Naval Air Reserve, Jacksonville,

Defendants~Appellees.

No. 89-3404.

United States Court of Appeals,

Eleventh Circuit.

June 25, 1990.

Before KRAVITCH and JOHNSON, Circuit

Judges, and KAUFMAN*, Senior District

Judge.

JOHNSON, Circuit Judge:

Plaintiff John Doe appeals from the

district court's grant of summary judgment

for the defendants, Secretary of the Navy

*Honorable Frank A. Kaufman, Senior U.S.

District Judge for the District of

Maryland, sitting by designation.

De te BND na

Oe ees, rae Pe ee eee

ee eS ee ee eee Ta ae

William L. Ball, III, and Captain J.wW.

Harris, USNR-TAR, ? Commanding Officer of

the Naval Air Reserve in Jacksonville,

Florida (“the Navy"), in Doe's suit against

the Navy under the Rehabilitation Act of

1973, 29 U.S.C.A. §§ 791, 794, 794a (West

1985 & Supp.1989) (“the Act"), and the Due

Process Clause of the Fifth Amendment.

I. STATEMENT OF THE CASE

Doe enlisted in the Navy in 1972, and

served, with a short break in 1975, until

1977. He reenlisted in the Naval Reserve

in 1981 and was discharged on January 16,

1985. On July 13, 1985, he reenlisted in

the Naval Reserve for a two-year term and

was accepted into the Naval Reserve

Canvasser Recruiter ("NRCR") program, as a

temporary active-duty officer assigned to

| - United States Naval Reserve,

Training and Administration of Reserves.

-2a-

assist recruiting efforts. Doe reported

for duty in the NRCR program at

Jacksonville, Florida on November 25, 1985.

He received excellent ratings in the NRCR

program, and his initial term of service

was extended from may 31, 1986 to September

30, 1986. His performance evaluation

indicated that he "display[{ed] outstanding

potential to be a truly dynamic recruiter,"

and that he was “conscientious,

enthusiastic and highly motivated." Doe

was subsequently recommended for an

extension of temporary active duty through

September 30, 1987, which was tentatively

approved by Naval Military Personnel

Command ("NMPC") on July 8, 1986.

On July 20, 1986, Doe was admitted to

the Naval Hospital at Portsmouth, Virginia,

following the tragic news that he had

tested positive as a carrier of the AIDS

virus (also known as Human Immunodeficiency

Virus or “HIV"). He did not, however, show

-3a-

any symptoms of AIDS itself. 4 On August

26, 1986, Doe was informed by NMPC that,

because of his AIDS infection, he would not

be allowed to continue on active duty

beyond September 30, 1986. On August 27,

1986, the Navy nevertheless allowed Doe to

accept his previously-approved extension of

temporary active duty through September 30,

1987. Later the same day, however,

following receipt of a message from NMPC,

this extension was cancelled. On September

30, 1986, Doe was released from active duty

and returned to inactive status in the

Naval Reserve. His final performance

evaluation was again very favorable.

. In September 1986, Doe was

hospitalized briefly with a_ possible

symptom of AIDS. This symptom disappeared,

however, and he was released on September

16, 1986. His physician certified that

there was “medically no reason for [Doe] to

be separated from the Navy at this time."

So far as the record before this Court

reveals, Doe has not subsequently developed

(Footnote Continued)

-4a-

At the time Doe tested HIV-positive

and was released from the NRCR program, the

governing Navy regulation, Secretary of the

Navy Instruction 5300.30, dating from

December 4, 1985 ("the 1985 regulation"),

provided that Naval personnel infected with

AIDS but showing no symptoms of the disease

should be “retained in service." On April

20, 1987, however, this regulation was

superseded by a Secretary of Defense

Memorandum ("the 1987 regulation")

providing that Naval Reserve personnel

infected with AIDS were ineligible for

active duty status for period exceeding

thirty days, except under conditions of

mobilization. >

_ (Footnote Continued)

symptoms of AIDS or AIDS-related complex

itself.

, Furthermore, two naval messages

from the Chief of Naval Operations, dated

April 3, 1987 and June 2, 1987, provided

that HIV-positive reserve personnel were

(Footnote Continued)

-5a-

Doe brought suit in the district court

on September 22, 1986, challenging his

scheduled release from active duty in the

NRCR progran. The court ordered Doe to

exhaust his administrative remedies, and he

applied to the Navy's Board of Corrections

of Naval Records ("BCNR") in November 1986.

On September 14, 1987, the BCNR found that

Doe's release from active duty violated the

Navy's 1985 regulation, and recommended

correction of Doe's records and an award of

back-pay commensurate with active-duty

status through September 30, 1987. The

BCNR also recommended that Doe's enlistment

in the Naval Reserve be extended through

October 12, 1987. The Secretary of the

Navy adopted the BCNR's recommendation on

March 15, 1988. Doe thereafter returned to

(Footnote Continued)

ineligible for recall or assignment to

active duty, and indeed that a negative

HIV-antibody test was required for such

recall or assignment.

-6a-

the district court, contending that the

relief granted by the Navy was inadequate

and that (1) the Navy's exclusion of him

from reenlistment in the NRCR program on

grounds of his AIDS infection violated the

Rehabilitation Act, (2) the Navy had an

obligation under the Act to implement an

affirmation action plan for _ personnel

handicapped by AIDS, (3) he was entitled to

‘ for the

damages and injunctive relief

Navy's alleged violation of his due process

rights in connection with this 1986 release

from active duty and his_ prospective

exclusion from the NRCR program, and (4) he

was entitled to attorney's cane. cid costs.

On May 4, 1989, the district court

entered summary judgment denying Doe all

relief. ev. all, 725 F.Supp.1210

. Doe's counsel, at the conclusion

of oral argument, indicated that Doe had

abandoned any claim for damages in this

; (Footnote Continued)

-7Ja-

(M.D.Fla.1989). The court found that (1)

the Rehabilitation Act did not apply to

uniformed members of the armed services

such as Doe, (2) the court was precluded

from reviewing the constitutional validity

of the Navy's personnel decisions as to Doe

under Mindes v. Seaman, 453 F.2d 1997 (5th

Cir.1971), and that, even if review were

not precluded, Doe had failed to establish

a deprivation of any

constitutionally-protected property or

liberty interest, and (3) Doe was therefore

not entitled to attorney's fees and costs.

Doe appeals to this Court, contending that

the district court erred in its conclusions

on the Rehabilitation Act and due process

issues, and raising for the first time the

argument that the Navy is equitably

estopped from refusing to reenlist him in

(Footnote Continued)

regard and sought only injunctive relief on

this claim. See Part II(B) below.

-8a-

the NRCR program. The questions presented

are issues of law subject to de novo

review.

II. ANALYSIS

A. The Rehabilitation Act

The district court held that Doe “has

no remedy under the Rehabilitation Act,"

Doe, 725 F.Supp. at 1214, relying on

well-established caselaw excluding

uniformed military personnel from

protection under Title VII of the Civil

Rights Action of 1964, 42 U.S.C.A.

§2000e-16 (West 1981). e v.

Hornsby, 821 F.2d 1537, 1539, 1541 (11th

Cir. 1987), cert. denied, U.S.__, 109

S.Ct. 402, 102 L.Ed.2d 390 (1988); accord

Roper _v. Department of the Army, 832 F.2d

247, 248 (2d Cir. 1987); Gonzalez v.

Department of Army, 718 F.2d 926,927-29

(9th Cir. 1983). The district court also

held that, "[{pjursuant to the _ remedial

scheme of Title VII, a private. action

-9a-

PS a Nas ee ee eee we ee eS eee

—v

{under the Rehabilitation Act] may not be

commenced until administrative remedies are

exhausted." Doe, 725 F.Supp. at 1213 n. 6.

The court noted that Doe's proceedings

before the BCNR satisfied this requirement.

p> Wy

specifically address the issue, we note

Although the district court did not

that it is well established that inf¢dction

with AIDS constitutes a handicap for

purposes of the Act. See Martinez v.

Hillsborough County School Board, 861 F.2d

1502, 1506 (11th Cir.1988) ; see also Nassau

County School Board v. Arline, 480 U.S.

273, 107 S.Ct. 1123, 94 L.Ed.2da 307 (1987).

Doe argues that the district court erred by

relying on Title VII caselaw because

? While the Navy argued before the

district court that Doe had not exhausted

before the BCNR his claim for prospective

reenlistment in the NRCR program, the Navy

abandons any claim in this regard on

appeal. It appears obvious that Doe sought

from the BCNR all the relief which the BCNR

could conceivably have granted him.

-10a-

section 794(a) (2) of the Act makes

available to claimants under section 794

the “remedies, procedures, and rights" of

Title VI of the Civil Rights Act of 1964,

42 U.S.C.A. §2000d (West 1981). While

Doe's argument might appear at first glance

to have merit, we conclude that’ the

district court's conclusion was correct.

An outline of the statutory framework

is necessary to place the issue in context.

Section 794(a) of the Rehabilitation Act .

provides:

No otherwise qualified

individual with handicaps in the

United States...shall, solely by

reasor. of her or his handicap, be

excluded from the participation

in, be denied the benefits of, or

be subjected to discrimination

under any program or activity

receiving Federal financial

assistance or under any program

or activity conducted by any

$ This section is frequently

referred to as “section 504" of the Act,

according to the section designation in the

original legislation.

-lia-

Executive agency or by the United

States Postal Service.

Section 791 of the Act’ imposes an

obligation on federal agencies to

promulgate affirmative action plans

assuring “adequate hiring, placement, and

advancement opportunities for individuals

with handicaps." 29 U.S.C.A. §791(b). The

substantive scope of section 791 thus goes

well beyond the simple nondiscrimination

requirement of section 794(a). See

Southeastern Community College v. Davis,

442 U.S. 397, 410-13, 99 S.Ct.2361,

2369-70, 60 L.Ed.2d 980 (1979). Prior to

1978, however, section 794(a) did not

afford federal employees any private right

of action.

Congress amended the Act in 1978 to

include the reference in section 794(a) to

. This section is frequently

referred to as “section 501" of the Act.

See not 6, supra.

-l2a-

"Executive agenc{ies]" and the Postal

Service, thereby "extend[ ing] [its]

proscriptions...to activities of the

federal government." See Treadwell v.

Alexander, 707 F.2d 473,475 (llth Cir.

1983); Rehabilitation Amendments of 1978,

P.L. 95-602, §119, 92 Stat. 2955, 2982.

The 1978 amendments also enacted section

794a(a) of the Act, which states:

(a) (1) The remedies,

procedures, and rights set forth

in [Title Vil, 42 U.S.C.A.

§2000e-16]...shall be available,

with respect to any complaint

under section 791 of this title,

to any employee or applicant for

employment aggrieved by the final

disposition of such complaint, or

by the failure to take final

action on such complaint. In

fashioning an equitable or

affirmative action remedy under

{section 791], a court may take

into account the reasonableness

of the cost of any necessary work

place accommodation, and the

availability of alternatives

therefor or other appropriate

relief in order to achieve an

equitable an appropriate remedy.

(2) The remedies,

procedures, and rights set forth

in (Title VI of the Civil Rights

Act of 1964, 42 U.S.C.A. §2000d],

-13a-

shall be available to any person

aggrieved by any act or failure

to act by any recipient of

Federal assistance or Federal

provider of such assistance under

section 794 of this title.

See P.L. 95-602, §120, 92 Stat. 2955,

2982-83. As this Court noted in Treadwell,

707 F.24 at 475, section 794a(a) (1)

"created a private right of action under

{section 791j in favor of persons subjected

to handicap discrimination by employing

agencies of the federal government." “This

private right of action, by its very terms,

incorporated Title VII's requirement of

exhaustion of administrative remedies.

Section 794a(a) (2), on the other hand,

reflects the fact that section 794 is

fundamentally modeled after Title VI. See

Alexander v. Choate, 469 U.S. 287, 293 n.7,

105 §.Ct. 7a2z, 7i6 n.7, €63 Te BG.28 662

(1985). This Court's predecessor first

held that Title VI created an implied

private cause of action in Bossier Parish

-l4a-

Schoo] Board v. Lemon, 370 F.2d 847, 852

(Sth Cir.) (Wisdom, J.), cert. denied, 388

U.S. 911, 87 S.Ct.2116, 18 L.Ed.2d 1350

(1967), and we held likewise with regard to

section 794 in Helms v. McDaniel, 657 F.2d

800, 806, n. 10 (5th Cir. Unit B 1981),

cert. denied, 455 U.S. 946, 102 S.Ct. 1443,

71 L.Ed.2d 658 (1982). See also Camenisch

v. University of Texas, 616 F.2d 127, 131

(Sth cCir.1980) (Tuttle, J.), vacated on

other grounds, 451 U.S. 390, 101 S.Ct.

1830, 68 L.Ed.2d 175 (1981). Furthermore,

it is established, as a general matter,

that Title VI-and by extension section

794-does not incorporate Title VII's

requirement of exhaustion of administrative

remedies. See Milbert v. Koop, 830 F.2d

354, 356 (D.C.Cir.1987) (Frank A. Kaufman,

J., sitting by designation); Cheyney State

College Faculty v. Hufstedler, 703 F.2d

732, 737 (3d Cir.1983); Miener v. Missouri,

673 F.2d 969, 978 & n. 10 (8th Cir.)

-15a-

(Henley, Jr.), cert. denied, 459 U.S. 909,

916, 103 S.Ct. 215, 74 L.Ed.2a 171 (1982);

Camenisch, 616 F.2d at 133-36. The 1978

Amendments thus posed the question whether

handicapped persons bringing Rehabilitation

Act claims against federal government

employers could proceed under the direct,

Title VI-style cause of action available to

all other claimants under section

794a(a)(1), with its incorporation of Title

VII's administrative exhaustion

requirement.

The present Fifth Circuit, in Prewitt

v. United States Postal Service, 622 F.2d

8

292, 302-04 (5th Cir. Unit A 1981), held

that in order to accommodate Congress's

6 Prewitt was decided by Unit A of

the Fifth Circuit on November 5, 1981,

subsequent to the October 1, 1981 circuit

split, and is therefore not’ binding

precedent on this Court. See Treadwell,

707 F.2d at 475 n. 43

Stein v. Reynolds

Securties, Inc., 667 F.2d 33, 34 (11th Cir.

1982)

-16a-

intent in enacting the 1978 amendments, it

was necessary to impose the section

791/Title VII exhaustion requirement on

federal employees bringing actions under

section 794. Several circuits have gone

further and held that private actions

against federal employers may not be

brought under section 794 at all, but only

pursuant to section 791 and the Title VII

remedies of section 794a(a)(1). See

Johnston v. Horne, 875 F.2d 1415, 1420-21

(9th Cir. 1989), and cases cited therein

(7th, 9th, and 10th Circuits). Those

circuits which, like Prewitt, have found

that section 794 affords a private right of

action to federal employees have

nevertheless agreed with Prewitt that such

claimants must satisfy the section

794a(a)(1) procedures. See Milbert, 9830

F.2d at 357, and cases cited therein (5th,

“var

6th and sth Circuits) .? The basic

rationale for the approach taken by these

courts, as stated by the Seventh circuit,

is that, because Title VII is the exclusive

remedy for federal government

discrimination on grounds of race,

religion, sex, or national origin,

"we...cannot believe that...Congress could

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."

| ; united stat Postal < =

752 F.2d 1318, 1322 (7th Cir. 1984); see

? The D.c. Circuit in Milbert,

while agreeing with Prewitt that exhaustion

was required under either section 791 or

794, declined to decide whether a claimant

suing a federal agency could proceed under

section 794 at all. The court "strongly

suggest[{ed}," however, that such a claimant

"seek relief under section [791] rather

than under section [(794)." 830 F.2d at

357.

-i.8a-

also Boyd v. United States Postal Service,

752 F.2d 410, 413-14 (9th Cir.1985).

Support for this conclusion is also

found in the language of section

794a(a) (2), which applies Title VI remedies >

and procedures only to claimants suing “any

recipient of Federal assistance or Federal

provider of such assistance under section

794." This would seem to encompass private

or state recipients of federal funds and

their federal providers, but not federal

agencies themselves. See Morgan v. United

States Postal Service, 798 F.2d 1162, 1165

(8th Cir. 1986), cert. denied, 480 U.S.

948, 107 S.Ct. 1608, 94 L.Ed.2d 794 (1987).

While this Court has not yet explicitly

decided this issue we have cited Prewitt

with approval and have noted that "we look

to it for guidance." eadwell, 707 F.2d

~19a-

at 475 & n. 4,2° For the reasons stated in

Prewitt and discussed above, we take this

opportunity to explicitly adopt Prewitt's

holding that private actions against

federal government employers under the Act,

whether brought under section 791 or 794,

must satisfy "the requirement of exhaustion

of administrative remedies in the manner

prescribed by section [794a(a)(1)] and thus

by Title VII." Milbert, 830 F.2d at 357.

We think this conclusion goes far to

support the district court's reasoning that

Title VII caselaw must be consulted in

considering the application of the

Rehabilitation Act to uniformed military

]

+0 Treadwell appeared to adopt, at

least by implication, Prewitt's holding

that a cause of action against federal

employers existed under section 794. See

Treadwell, 707 F.2d at 475 (noting that the

plaintiff had "brought suit under §§ [791]

and (794]"). We concur in that implication

and hereby make it explicit. Treadwell did

not. however, address the exhaustion of

remedies issue.

-20a-

personnel. The reasons underlying the

Title VII “military exception" have been

well stated by Judge Fletcher for the Ninth

Circuit in Gonzalez, 718 F.2d at 927-29,

and need not be repeated here. See also

Johnson v. Alexander, 572 F.2d 1219,

1223-24 (8th Cir.) (Henley, J.), cert.

denied, 439 U.S. 986, 99 S.Ct. 579, 58

L.Ed.2d 658 (1978). As noted above, this

Court has adopted that exception. Stinson,

821 F.2d at 1539, 1541. Just as it would

be incongruous to require persons claiming

discrimination on grounds of sex, race,

religion, or national origin - but not

handicapped discrimination claimants - to

follow Title VII procedures in suing

federal employers, so it would be

incongruous to allow uniformed military

personnel to bring discrimination claims

against the military based on handicap,

when statutory claims based on sex, race,

religion, or national origin are barred.

-Z2l1a-

Any doubt we might entertain on this

issue is dispelled by Smith v. Christian,

763 F.2d 1322 (11th Cir. 1985), in which

this Court rejected a section 794 claim

brought against the Navy by an individual

who was denied a commission in the Naval

Reserve Medical Service Corps because he

was missing his right index finger.

Without addressing the issue whether the

claimant had a cause of action against the

military under section 794 to being

with, t+

Smith found that section 794 did

not override the Navy's countervailing

statutory authority to prescribe physical

il We did not address that issue in

Smith because the district court did not;

the district court granted summary judgment

for the Navy on different grounds, which

this Court upheld on appeal. See Smith v.

United States Navy, 573 F.Supp. 1361, 1364

(S.D.Fla.1983), aff'd 763 F.2d 1322 (11th

Cir.1985). Smith did, however, cite

"generally" to the Eighth Circuit's

decision in Johnson _v. Alexander, supra,

which articulated the eres exception"

to Title VII. See Smith, 763 F.2d at 1325.

-22a-

qualifications for enlistees, an area over

which we found "Congress has given the

Executive Branch wide latitude." Smith,

763 F.2d at 1325. Smith found the Navy's

authority specifically rooted in two

statues, 10 U.S.C.A. § 591(b) (West 1983)

and 10 U.S.C.A. § 5579(a) (West 1959). See

Smith, 763 F.2d at 1324 & n. 3. Only the

former applies here. ??

It states: “Except

as otherwise provided by law, the Secretary

concerned shall prescribe physical, mental,

moral, professional and age qualifications

for the appointment of persons as Reserves

of the armed forces under his

jurisdiction." Doe understandably focuses

12

Section 5579 applied only to the

Navy's Medical Service Corps and was

repealed effective September 15, 1981. See

Defense Officer Personnel Management Act of

1980, P.L. 96-513, §§321, 701(a), 94 Stat.

2835, 2892, 2955. Section 5579 was

relevant in Smith because the claimant

there had applied and been rejected prior

to its repeal. See Smith, 573 F.Supp. at

1362-63, 1366.

-23a-

on the opening phrase, which Smith did not

recite, and argues essentially that Smith

reached the wrong conclusion. Whatever the

strength of Smith's reasoning, however, we

3 We note

are bound by it as precedent.?

that the disputed language might plausibly

be read simply to denote that entities

other than the “Secretary concerned" might

be authorized by law to prescribe

qualifications for the Reserves, rather

than to suggest substantive limitations on

those qualifications. We believe Smith

supports, a fortiori, the Navy's exclusion

of Doe from reenlistment in the NRCR

progran.

For the foregoing reasons we agree

with the district court that Doe has no

remedy under the Rehabilitation Act.

=s Only the en banc Court may

overrule a prior panel decision. See

Vv. Mas , 804 F.2d 1537,

1543 (lith Cir. 1986).

-24a-

B. The Due Process Clause

It is unclear from Doe's brief on

appeal whether his due process’ claim

relates to his release from the NRCR

program in 1986, his exclusion from

reenlistment in the program subsequent to

September 30, 1987, or both. The district

court found that the BCNR had already

afforded Doe complete relief for the 1986

relief, and thus focused primarily on his

reenlistment claim. See Doe, 725 F.Supp.

at 1216. At the conclusion of oral

argument before this Court, Doe's counsel

stated that Doe now seeks only injunctive

relief on the due process claim, not

damages. Because it is clear that there is

no conceivable injunctive remedy which

could provide any relief for Doe's 1986

release beyond that already granted by the

BCNR, Doe's only remaining due process

Claim before this Court relates to his

-25a-

exclusion from reenlistment in the NRCR

program.

The Navy's refusal to reenlist Dog in

the NRCR program does not impinge on any

constitutionally-protected property

interest. It is well established that a

military officer's expectation of continued

military employment does not rise to the

level of a property interest unless it is

rooted in some statute, regulation, or

contract. Sims v. Fox, 505 F.2d 857,

860-62 (5th Cir.1974) (@n banc), cert.

denied, 421 U.S. 1011, 95 S.Ct. 2415, 44

L.Ed.2d 678 (1975); accord Alberico v.

United States, 783 F.2d 1024, 1026-27

(Fed.Cir.1986). In this cause, as we have

noted in Part I, the applicable military

regulations in effect since April 1987

specifically exclude Doe from eligibility

for the NRCR- program because of his

HIV-positive status. More generally, the

Navy's regulations governing the NRCR

-26a-

program, as set forth in Naval Military

personnel Command Instruction 1001.1B,

provide that assignments to the NRCR

program are for temporary periods of 180

days, one year, or two years, that

retention beyend the initial period "is not

implied or guaranteed," and that the NRCR

program “is not a career program."

Assignments and reassignments to the

program are made by the Commander of the

Naval Military Personnel Command from among

applicants meeting a detailed list of

requirements; nothing in the regulations

suggests any vested right or assurance that

any applicant will be accepted into the

program. To the contrary, the regulations

specifically warn that even incumbent NRCR

officers "may be non-continued... in

accordance with the needs of the Naval

Reserve Recruiting Program." Courts have

rejected claimed property interests even in

cases involving out-right discharge from

-27a-

career positions in the military. See

Sims, 505 F.2d at 858-60; Alberico, 783

F.2d at 1026-27. Accordingly, Doe's claim

to a property interest in prospective

reassignment to the NRCR program is devoid

of merit.

Doe's claim to a protected liberty

interest is equally devoid of merit. It is

established that discharge or termination

of a government employee on the basis of

false and stigmatizing reasons publicized

by the governmental employer implicates a

protected liberty interest in the

employee's reputation and ability to gain

future employment. uxto Vv :

City, 871 F.2d 1037, 1042-43 (11th

4

Cir.1989).+ A critical element of a

claimed invasion of a reputational liberty

14 The district court thus erred in

holding, on the basis of Paul v. Davis, 424

U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405

(Footnote Continued)

-28a-

interest, however, is the falsity of the

government's asserted basis for the

employment decision at issue. See Codd v.

Velger, 429 U.S. 624, 627, 97 S.Ct. 882,

883, 51 L.Ed.2d 92 (1977); Buxton, 871 F.2d

at 1042 & n.4. Doe has never disputed that

he does in fact carry the AIDS virus, the

basis for the Navy's disputed “employment

decisions" in this case. Because he does

not claim falsity, he has failed to raise

any “factual dispute... which has_ some

significant bearing on [his] reputation."

Codd, 429 U.S. at 627, 97 S.Ct. at 884.

(Footnote Continued)

(1976), that an allegation of damage to

reputation accompanying wrongful discharge

"is insufficient to state a constitutional

claim." Doe, 725 F.Supp. at 1217. Paul

involved a claimed liberty interest resting

on reputation alone, unconnected to any

governmental employment action. See Paul,

424 U.S. at 709-10, 96 S.Ct. at 1164-65;

cf. Green v. Brantley, 895 F.2d 1387, 1393

(llth Cir. 1990) ("{reputational] liberty

interest curvives even where...the

withdrawal of employment does not impinge

on a recognizable property interest").

-29a-

Because Doe's due process claim so

clearly fails on the merits, we need not

consider at any length the district court's

- initial finding that Doe's claim is

unreviewable under Mindes v. Seaman, 453

F.2d 197, 201-02 (5th Cir.1971), which set

forth a four-part balancing test governing

the judicial reviewability of

constitutional challenges to military

personnel decisions. Cf. Stinson, 821 F.2d

at 1540-41 (district court must apply

Mindes analysis before reaching merits of

15

constitutional claim). We find nothing

objectionable in the district court's

as This Court in Stinson took the

rather severe approach of reversing and

remanding the distrct court's dismissal on

the merits of a constitutional claim

because the district court had not applied

Mindes to determine whether the claim was

reviewable in the first place. We reversed

despite the fact that the issue on the

merits was quite simple, the district

court's disposition appeared plainly

correct, and the district court's

(Footnote Continued)

-30a-

application of Mindes, and we think it

Clear that under Mindes factors one and

(Footnote Continued)

consideration of Mindes on remand could not

possibly have led to a different result.

See Stinsen, 821 F.2d at 1541-43

(Henderson, Jes specially concurring)

(criticizing Mindes and suggesting

disposition of plainly meritless

consitutional claims "without resort to the

cumbersome Mindes analysis"); accord Watson

v. Arkansas National Guard, 886 F.2d 1004,

1009-10 (8th Cir. 1989)

We note that despite the apparent

assumption of Stinson, this Court and its

predecessor have not always applied Mindes

in constitutional challenges to military

personnel decisions. The former Fifth

Circuit, for example, failed to apply

Mindes in Sims v. Fox, supra, decided only

three years after Mindes. Furthermore,

while Mindes refers to statutory as well as

constitutional claims, it appears well

established that Mindes need not be applied

before reaching the merits of a statutory

Claim against the military. See Stinson,

821 F.2d at 1539-40; Smith, 763 F.2d at

1324-25 (both rejecting statutory claims

without resort to Mindes analysis). It

would obviously be inappropriate for the

federal courts to second-guess whatever

balancing of policy interests might

underlie a decision by Congress to subject

the military to liability under a legal

standard going beyond constitutional |

requirements. Such balancing by the courts

is appropriate and often necessary with

regard to constitutional claims, however,

(Footnote Continued)

~3la-

16

three, at least, review of Doe's due

process claim in this case is disfavored.

C. Equitable Estoppel

Doe raises for the first time before

this Court the argument that the Navy's

past conduct toward him equitably estops it

from denying him prospective reassignment

to the NRCR program, relying heavily on the

Ninth Circuit's recent decision in Watkins

vy. United States Army, 875 F.2d 699 (9th

Cir. 1989) (en banc). Because Doe failed

to raise this contention before the

ta Factor one relates to "(t)he

nature and strangth of the plaintiff's

challenge to the military determination,"

and notes that "[(ajn obviously tenuous

Claim of any sort must be weighted in favor

of declining review." Mindes, 453 F.2d at

201. Factor three relates to "‘tjhe type

and degree of anticipated interference with

the military function." Id. It is obvicus

that finding a protected property interest

in not being denied acceptance to a

military program such as the NRCR program -

with the presumptive consequence of

requiring some kind of due process hearing

for every rejected applicant - would

(Footnote Continued)

-32a-

‘district court, we need not address it on

appeal. Cf. In re Daikin Miami Overseas,

Inc. 868 F.2d 1201, 1207 (11th Cir. 1989)

(issue not raised below may be considered

where "pure question of law" is involved

and refusal to consider it “would result in

a miscarriage of justice"). In the

interest of responding fully to all aspects

of Doe's claim, however, we note that Doe's

analogy to Watkins is strained indeed. In

Watkins, the Army had refused to reenlist a

career soldier with an outstanding record

solely on the basis of his admitted

homosexuality, despite the fact that the

Army had repeatedly reenlisted him over

the previous fifteen years, in violation of

its own regulations and with full knowledge

of his homosexual orientation, which he had

candidly and repeatedly acknowledged over

(Footnote Continued)

threaten substantial interference with the

military's personnel selection processes.

«“33a~

the years. Se Sutkins, 875 F.2d at

701-03. The Ninth ‘Circuit held that the

Army had induced Watkin's reliance on its

previous course of conduct and was

therefore equitably estopped from refusing

to reenlist him. ‘See id., at 709-11. In

this case, by contrast, Doe has never

relied to his detriment on any violation by

the Navy of its own regulations. Doe

challenged the Navy's termination of his

NRCR assignment in 1986 as being in

violation of the 1985 regulation, and the

BCNR ultimately agreed that under that

regulation Doe was entitled to serve out

his term through September 30, 1987.

Thereafter, the Navy has~ refused _ to

reenlist Doe in the NRCR program, iin

accordance with its 1987 regulation.

Unlike the situation in Watkins, the Navy

has never led Doe to believe that he has

any expectation of serving in the NRCR

program in violation of the regulations

-34a-

excluding HIV-positive individuals. Doe's

estoppel claim thus lacks merit.

III. CONCLUSION

For the foregoing reasons, we AFFIRM

the judgment of the district court.

-35a-

John DOE, Plaintiff,

Vv.

William L. BALL, III, as Secretary of

the Navy, et al., Defendants.

No. 86-971-Civ-J-16

United States District Court,

M.D. Florida,

Jacksonville Division.

May 4, 1989.

OPINION

JOHN H. MOORE, II, District Judge.

This matter is before the court for

final resolution. The defendants, the

Honorable William L. Ball, III, the

Secretary of the Navy, and Captain J.W.

Harris, USNRTAR, ?? the Commanding Officer

of the Naval Air Reserve in Sestemekdie.

8

Florida, (Navy) ,? filed a motion to

dismiss this cause for failure to state a

a7 "USNR" is the abbreviation for

United States Naval Reserve. "TAR" refers

to the Training and Administration of

Reserves program, which is concerned with

the administration and training of reserve

components.

(Footnote Continued)

-36a-

claim pursuant to Fed.R.Civ.P. 12(b) (6).

At the final pretrial conference, held on

21 December 1988, the parties indicated to

the Court that there were no disputes of

material fact and that the case should be

amenable to summary judgment. Accordingly,

at the Court's direction, the parties filed

a statement of stipulated facts and

submitted memoranda thereon. After a

careful consideration of the stipulated

facts, legal memoranda, the relevant

pleadings and applicable law, the Court

determines that summary judgment is

appropriate.

(Footngte Continued)

Originally, this suit was filed

naming then Secretary of the Navy John F.

Lehman, and then Commanding Officer of the

Naval Air Reserve in Jacksonville, Florida,

Captain R.E. Webb, as defendants. Since

the filing of this suit, there has been a

succession of other persons occupying these

offices. The plaintiff's suit is

unaffected by these changes as it is one

essentially against the United States.

Therefore, the defendants will be

(Footnote Continued)

-37a-

The plaintiff, filing suit under the

pseudonym of John Doe, brought this case on

22 September 1986, claiming that his

scheduled release from active duty as a

Naval Reserve Canvasser Recruiter on 30

September 1986, would violate his rights

under the Federal Rehabilitation Act, 29

U.S.C. §§ 791(b), 794 and 794(a), and under

the due process clause of the Fifth

Amendment. Mr. Doe contended that his

release was predicated on the fact that he

had tested positive for the HTLV-III

antibody (HIV) .2? Simultaneously, Mr. Doe

filed a motion for a preliminary injunction

requesting this Court to enjoin the Navy

(Footnote Continued)

collectively referred to in this opinion as

the Navy.

ta HTLV-III is the abbreviation for

Human T-Lymphotropic Virus III. Presently,

it is referred to as Human Immunodeficiency

Virus (HIV) antibodies. The antibody is

produced by the human body as a response to

Acquire Immune Deficiency Syndrome (AIDS).

(Footnote Continued)

-38a-

from releasing him. After a hearing on Mr.

Doe's motion the Court declined to impose a

preliminary injunction and stayed the

progression of the case pending his

exhaustion of administrative remedies. Mr.

Doe then filed an Application for

Correction of Military or Naval Record

under the provisions of 10 U.S.C. § 1552.

At the conclusion of proceedings before the

Board for Correction of Naval Records

(BCNR), Mr. Doe returned to this Court.

Mr. Doe has a long history of service

with the Navy. He first enlisted in the

Navy on 30 March 1972, and served

continuously, except for a brief period in

1975, until 21 April 1977, at which time he

was discharged. Mr. Doe returned to the

Navy in January 1981, when he reenlisted in

the Naval Reserve as part of the TAR

(Footnote Continued)

HTLV-III and HIV will be used

interchangeably throughout this opinion.

-39a-

program. Mr. Doe served on active duty

until his discharge in January 1985. On 13

July, 1985, Mr. Doe reenlisted in the Naval

Reserve for a two-year term, applying for

acceptance into the Naval Reserve Canvasser

Recruiter Program under the provision of

NAVMILPERSCOM Inst. 1001.1B of 26 February

1985, 7°

The Canvasser Recruiter program is

composed of Naval Reservists recalled to

active duty in a temporary status (TEMAC)

to assist in recruiting for the Naval

Reserve. Under the program, Naval

Reservists are assigned to active duty in

the geographic area in which they live so

they may take advantage of their

familiarity with the- locale, and to

conserve travel and transfer funds. The

Navy accepted Mr. Doe for this program and

20 NAVMILPERSCOM is an. official

(Footnote Continued)

-40a-

he reported for active duty at the Naval

Air Reserve, Jacksunville, Florida, on 25

“November 1985. Mr. Doe's initial orders

allowed service for 187 days, ending 31 May

1986. These orders would be extended

through 30 September 1986, provided his

performance was satisfactory. Also, the

Program provided for further continuations

of the active duty period.

Mr. Doe performed his duties as a

Canvasser Recruiter in an excellent manner,

scoring a 3.8 on his performance evaluation

of 31 March 1986, out of a possible 4.0.

The reporting senior noted that Mr. Doe had

recruited 11 individuals during the

reporting period, and otherwise commented

upon Mr. Doe's abilities in glowing terms.

He recommended Mr. Doe for retention and

advancement. Subsequently, Mr. Doe's

(Footnote Continued)

abbreviation for Naval Military Personnel

Command.

-41a-

service as a Canvasser Recruiter was

extended until 30 September 1986. Also,

his underlying active duty status was

extended to 30 September 1987, by Naval

Military Personnel Command (NMPC).

On 20 July 1986, Mr. Doe was admitted

to the Naval Hospital in Portsmouth,

Virginia. This admission was necessary

because he had tested positive for the

presence of the HIV antibody. The physical

examination performed disclosed that the

presence of the antibody was his only

symptom. Otherwise, he was in good health.

On 22 August 1986, after Mr. Doe's return

to Jacksonville, his commanding officer

reported the positive test result for HIV

to the Commander, Naval Reserve Force, via

letter, pointing out his excellent record

and the approved continuation of his active .-

duty. He requested guidance concerning Mr.

Doe's status. The Commander, Naval Reserve

Force, notified NMPC of these developments.

-42a-

| On 26 August 1986, NMPC informed Mr.

Doe that he would not be continued on

active duty after 30 September 1986.

Nevertheless, he was permitted to extend

his agreement to remain on active duty and

his Naval Reserve enlistment the very next

day. These extensions would have continued

his active duty until 30 September 1987,

and his Naval Reserve enlistment until 13

September 1987. Later that same day, both

extensions were cancelled after a message

was received from NMPC. The Navy released

Mr. Doe from active duty on 30 September

1986, returning him to the status of an

inactive reservist. In his final

performance evaluation Mr. Doe scored an

overall rating of 3.8 and again received

very favorable comments.

Prior to his release from active duty,

Mr. Doe filed suit in this Court. As

previously discussed, this Court denied Mr.

Doe's request for a preliminary injunction,

-43a-

directing him to first exhaust possible

administrative remedies. Accordingly, Mr.

Doe applied to the BCNR in November of 1986

to contest his release from active duty.

After a review of Mr. Doe's case, in

light of the naval regulations then in

effect, the BCNR found sufficient grounds

of "error and injustice" to warrant a

correction to his naval record in all

appropriate places. The BCNR recommended

that the correction reflect:

A. That on 27 August 1986,

Petitioner extended his

enlistment in the Naval Reserve

for a period of three months, and

that this extension was not

cancelled at any subsequent time.

Such an extension would result in

the expiration of Petitioner's

enlistment of 12 October 1987.

B. That on 27 August 1986,

Petitioner

extended his agreement to remain

on active duty until 30 September

1987, that this extension was not

subsequently cancelled, and that

Petitioner served on active duty

until the latter date, at which

time he was released from active

duty and transferred to the

inactive reserve.

-44a-

The BCNR concluded that the correction

to the record would constitute sufficient

relief. The Secretary of the Navy accepted

the BCNR's recommendation on 15 March

1988.7+ pursuant to the correction of his

naval record, Mr. Doe was awarded the

compensation to which he would have been

entitled had he been allowed to continue on

active duty until 30 September 1987.

On 7 April 1988, Mr. Doe filed his

Third Status Report with this Court stating

that the results obtained before the BCNR

failed to provide him complete relief.

Specifically, Mr. Doe claims that’ the

following issues remain to be determined:

(a) his future as a Naval Canvasser

Recruiter after 30 September

1987;

(b) whether the Navy has filed to

21 The entire administrative file of

the Board for Cecrrection fo Naval Records

in this case was submitted to the Court and

filed under seal.

-45a-

complete implementation of an

affirmative action plan for the

physically handicapped and

specifically for individuals who

have tested positive for the HIV

antibody;

(c) his damages for the deprivation

of his right to due process; and

(a) his attorney's fees and costs.

On 9 December 1988, the Navy filed its

motion to dismiss.

The first question this Court must

consider is whether the Rehabilitation Act

applied to uniformed members of the armed

forces. The Act prohibits discrimination

against individuals on the basis of a

handicap "under any program or activity

conducted by an Executive Agency...." 29

¥.8.¢, § 794. In addition, the Act

requires each department, agency, and

instrumentality within the executive branch

to develop an affirmative action program

for the hiring, placement and advancement

of individuals with handicaps. 29 U.S.C. §

791(b). The Act is enforceable by private

-~46a-

individuals subjected to handicap

discrimination by employing agencies of the

federal government through the provisions

of 29 U.S.C. § 794(a)(1), which expressly

adopts the "remedies, procedures, and

rights" found in section 717 of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-16

(Title VII). See Treadwell _v. Alexander,

707 F.2d 473, 475 (llth Cir. 1983); Prewitt

v. U.S. Postal Service, 662 F.2d 292, 304

(5th Cir. Unit A 1981).

The Court, therefore, in determining

the appropriate scope to be given to the

Act, must look to the remedial framework of

Title VII.*% 42 U.S.C. § 2000e-16(a)

prohibits discrimination on the basis of

race, color, religion, sex, or national

22 Pursuant to the remedial scheme

of Title VII, a private action may not be

commenced until administrative remedies are

exhausted. Prewitt, at 304. The

proceedings before the BCNR satisfy this

requirement.

-47a-

origin, affecting employees or applicants

for employment in military departments.

However, the courts of appeals which have

considered the issue have concluded that

the definition of military departments, as

used in Title VII, does not’ include

uniformed military personnel. Roper v.

Dept. of Army, 832 F.2d 247 (2nd Cir.1987) ;

Gonzalez _v. Dept. of Army, 718 F.2d 926

(9th Cir.1983)* Johnson v. Alexander, 572

F.2d 1219 (8th Cir.1978). Those courts

have determined that Congress, when

enacting Title VII, meant to distinguish

between civilian employment ina "military

department" and uniformed military

personnel in the armed forces. |

In Stinson v. Hornsby, 821 F.2d 1537

(llth Cir. 1987), the court had before it a

Claim by a discharged member of the Alabama

National Guard alleging racial

discrimination by the Department of the

Army, and seeking relief under 42 U.S.C.

-~48a-

§§ 1981, 1983 and Title VII. The district

court had dismissed Stinson's complaint

holding that it failed to state a claim for

relief. The Court affirmed that portion of

the district court's opinion dismissing

Stinson's Title VII claim. In analyzing

Stinson's Title VII claim the Court made a

distinction between civilian employees who

were members of military departments and

uniformed military personnel who’ were

members of the armed forces. The Court

concluded that Stinson was a member of the

armed forces, and was therefore not covered

by the provisions of Title VII. In so

ruling, the Court wrote:

Our holding today is that members

of the National Guard are

generally employees of the state;

but where the facts indicate that

the person is on _- full-time

military duty and other factors

indicate that the person is more

military than civilian, no Title

VII action may be brought.

Id. at 1541. In this case there can be no

question that Mr. Doe was a member of the

-49a-

armed forces. Title 10 U.S.C. § 101(4)

defines armed forces to include the Navy.

Title 10 U.S.C. § 5001(a) defines Navy as

including the Naval Reserve. Since the

parameters of the Rehabilitation” Act are

restricted by Title VII, and since Stinson

holds that members of the armed forces have

no cause of action under Title VII, the

Court concludes that Mr. Doe has no remedy

under the Rehabilitation Act.

In light of the above ruling that the

Rehabilitation Act does not afford Mr. Doe

any remedy, it is a matter of logical force

for this Court to conclude that’ the

affirmative action mandate of 29 U.S.C. §

791 does not extend to programs involving

military personnel. Indeed, the Eleventh

Circuit has held that Department of Defense

regulations enacted pursuant to the

Rehabilitation Act do not extend to

programs related to the procurement of

military personnel. Smith v. Christian,

-50a-

763 F.2d 1322, 1325 (11th Cir.1985). Thus,

the allegation that the Navy has failed to

implement an affirmative action program for

the physically handicapped, and

specifically for individuals who have

tested positive for the HIV antibody, fails

to state a claim for relief.

Mr. Doe's final claim for relief is

that the Navy deprived him of his right to

due process of law under the Fifth

Amendment by discharging him in violation

of SECNAVINST 5300.30 dated 4 December

1985.*? SECNAV Instruction 5300.30 is an

internal regulation of the Department of

the Navy setting forth policy regarding the

“identification, surveillance and

disposition of military members infected

with HTLV-III." Section 2b‘/1) of the

Instruction provides: ‘

23. SECNAVINST is the official

(Footnote Continued)

-5la-

Members who are HTLV-III antibody

positive who demonstrate no

evidence of progressive clinical

illness or immunological

deficiency shall be retained in

naval service.

In addition, Section 8a provides:

Military personnel who are

antibody positive but manifest no

evidence of progressive clinical

illness or immunological

deficiency (physical laboratory

assessment, demonstration of

ability to respond to

immunizations, and ability to

mount a protective immune

response to immunizations or

exposure to naturally occurring

pathogens), shall be retained in

service, unless some other reason

for separation exists. This

interim pelicy is based on the

following considerations:

(1) There is no demonstrated risk of

transmission of disease in normal

daily activities.

(2) An investment in training of

these members has been made.

(3) The condition may be incident to

service.

(Footnote Continued)

abbreviation for Secretary of the Navy

Instruction.

-52a-

In its administrative proceedings the

BCNR concluded that Mr. Doe had been

released from the Navy as a result of

testing positive for the HIV antibody. The

Board found that such action violated the

regulations set forth in SECNAVINST 5300.30

and recommended that Mr. Doe's record be

corrected to reflect its findings. The

Secretary of the Navy approved this

recommendation, Mr. Doe's record was

corrected, and he received the money that

he would have made for the relevant time

period. Now Mr. Doe, contending that the

Board's recommendation and its approval

afford him inadequate relief, argues that

he should have been returned to active

service after 30 September 1987.

Before this Court can review a

military personnel decision, it must engage

in the analysis outlined in indes v.

Seaman, 453 F.2d 197 (5th Cir.1971), in

order to determine whether Mr. Doe's

-53a-

constitutional claim is barred. The Mindes

approach was recently reaffirmed in

Stinson. 821 F.2d at 1540. The Mindes

inquiry compels an independent two-step

process. First, this Court must look to

see if Mr. Doe asserts:

(a) an allegation of the deprivation

of a constitutional right, or an

allegation that the military has

acted in violation of applicable

statutes or its own regulations,

and

(b) exhaustion of available

intraservice corrective measures.

Mindes, 453 F.2d at 201; Stinson, 821 F.2d

at 1540. If this threshold inquiry cannot

be satisfied then an internal military

decision should not be reviewed.

Mr. Doe has alleged a deprivation of

Fifth Amendment due process and a

concomitant violation of the Navy's own

regulations regarding persons who test

-54a-

positive for the HIV antibody. 4 In

addition, he has exhausted his

administrative remedies by going before the

BCNR. See 10 U.S.C. § 1552. Therefore,

the initial phase of the Mindes test has

been satisfied. The second part of the

Mindes analysis requires this Court to

conduct a weighing of the following four

factors:

1. The nature and strength of the

plaintiff's challenge to the

military determination.

2 The potential injury to the

plaintiff if review is refused.

3 The type and degree of

anticipated interference with the

military function.

4. The extent to which the exercise

of military expertise or

discretion is involved.

Mindes, 453 F.2d at 201; Stinson, 821 F.2d

at 1540. The weighing of these factors is

** The thrust of Mr. Doe's Fifth

Amendment claim in Court III of the

complaint is that the Navy violated its own

rules when discharging him from active

(Footnote Continued)

-$5a-

intended to aid district courts’ in

evaluating the substance of the allegation

"in light of the policy reasons behind

nonreview of military matters." Mindes,

453 F.2d at 201.

Considering the first factor, the

nature and strength of Mr. Doe's challenge,

the Court concludes that it weighs in favor

of the Navy. Mr. Doe's allegation that his

Fifth Amendment due process rights have

been violated is tenuous at best. It is

true that the BCNR found that the Navy had

violated its own regulations in September

of 1986, and that Mr. Doe's record was

corrected and he received compensation.

However, this Court can discern no right of

Mr. Doe's to continued active service after

30 September 1987, that has been violated.

Under applicable regulations he cannot

(Footnote Continued)

duty. See Response to Defendants' Motion

to Dismiss, p.7, n.5.

-56a-

serve additional periods of extended active

duty as a result of his HIV positivity. A

Secretary of Defense Memorandum dated 20

April 1987, provides that "(r]serve

component members with serologic evidence

of HIV infection are ineligible for

extended active duty (duty for a period of

more than 30 days) except under conditions

of mobilization." Secretary of Defense

Memorandum, at 7, para. c. 2 (appended to

Defendant's Motion to Dismiss or, in the

Alternative, Motion for Summary Judgment as

Exhibit A). This memorandum effectively

Supersedes any policy to the contrary

contained in SECNAVINST 5300.30. Moreover,

that Instruction expressly states that it

is an interim policy. Also, Mr. Doe was

ineligible to reapply for the Naval Reserve

Canvasser Recruiter program after 30

September 1987, ‘because of an insufficient

amount of obligated time remaining on his

underlying enlistment. Mr. Doe's

-57a-

underlying enlistment expires on 12 October

1987. NMPC Instruction 1001.18 provides

that personnel applying for the Canvasser

Recruiter program must "[h]jave sufficient

obligated service (at least 9 months from

application date) to perform the requested

period of active duty." Thus the nature

and strength of Mr. Doe's challenge weighs

in favor of the Navy.

The second factor, the potential

injury to Mr. Doe if review is refused, is

related to the analysis of the first

factor. Mr. Doe's claim to continued

service is attenuated, and the BCNR has

already remedied the wrong initially

suffered by Mr. Doe. Thus, the injury to

Mr. Doe should this Court decline review is

not of a magnitude which would * compel

judicial intervention. Therefore, this

second factor also weighs in favor of the

Navy.

-58a-

The third factor, the type and degree

of anticipated interference with the

military function, weighs in the Navy's

favor. Although some interference with the

military decision-making process is always

involved when a civilian court imposed its

scrutiny, such an intrusion here would be

serious enough to impede the military in

its performance of vital duties.

Recognizing that physical qualification is

an important prerequisite in being an

active member of the military, Congress has

vested the military with discretion to

establish physical standards and to

determine who may serve in an active duty

status. See Christian, 763 F.2d at

1324-25. As the above-referenced Secretary

of Defense Memorandum establishes, Mr. Doe

is not- physically | qualified for an

extension of active duty beyond that

granted him through the administrative

process. Were this Court to undertake a

-59a-

review of Mr. Doe's claim to future active

service, it would constitute a significant

and ill-advised intrusion into the

sensitive realm of the military personnel

decision-making process. MTherefore, this

third factor weighs in the Navy's favor and

counsels against judicial review.

The fourth factor, the extent to which

the exercise of military expertise or

discretion is involved, is related to the

third factor and also counsels against ©

judicial peeled. As with factor three, the

decision concerning further active duty

service for a member of a Reserve component

is one entrusted by Congress to the

Executive Branch and the military

departments. The current guidelines, as

previously discussed, dictate that Reserve

component members with evidence of HIV

infection are not eligible for extended

active duty. If this Court were to

evaluate the priority of such a standard in

-60a-

the military context, it would necessitate

an incursion into the — expertise and

discretion that has been traditionally

dedicated to the military. Thus, the

fourth factor weighs in favor of the Navy.

Since this Court has concluded that

all four Mindes factors weigh in favor of

the Navy, review of this matter must be

declined. However, even if the above

factors weighed more favorably toward Mr.

Doe, and this Court did decide to review

his claim, he would not be successful. Mr.

Doe has no constitutional right which has

been violated. .

In order to state a claim under the

due process clause, Mr. Doe must first

demonstrate the deprivation of some liberty

or property interest. He has failed to

establish that he has any such interest

beyond the relief already granted. As the

Court has previously discussed, the BCNR

has accorded a complete relief to Mr. Doe

-6la-

for his wrongful release from active duty

in September of 1986. Subsequent to his

wrongful release, however, the Secretary of

Defense established a new policy for

reserve component members with evidence of

HIV infection. This policy is

determinative of Mr. Doe's’ right’ to

continued active service and, thus of his

due process clain.

The Secretary of Defense Memorandum of

20 April 1987, clearly precludes additional

periods of extended active duty for Service

personnel who are HIV positive. In light

of this regulation, Mr. Doe has_ no

expectation of continued service that would

give rise to a property interest. In

addition, Mr. Doe has not come forward with

any evidence to suggest that he has been

deprived of a cognizable libertv interest.

Although Mr. Doe asserts that he suffered

damage to his reputation as a result of his.

wrongful discharge in September of 1986,

-62a-

this allegation is insufficient to state a

constitutional claim. See, Paul v. Davis,

424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405

(1976). Therefore, were this Court to

review Mr. Doe's claim, it would conclude

that he has failed to make a showing of a

deprivation of either a liberty or property

interest that violates due process. See

Sims v. Fox, 505 F.2d 857 (Sth Cir. 1974);

Alberico v. U.w., 783 F.2d 1024 (Fed. Cir.

1986).

Finally, Mr. Doe is not entitled to an

award of attorney's fees and costs as he is

not a prevailing party in this Court.

Although he did prevail at the

acministrative level to the extent he

awarded one year's back pay and correction

of his naval record, that is unrelated to

proceedings before this Court. In denying

Mr. Doe's application for a preliminary

injunction this Court determined that the

case had been prematurely commenced. At

-63a-

that point the case could very well have

been dismissed and Mr. Doe would have been

forced to refile at the conclusion of the

administrative process. Mr. Doe,

therefore, is not entitled to an award of

attorney's fees and costs.

Accordingly, it is now

ORDERED AND ADJUDGED:

That the defendants' motion to.

dismiss, considered by the Court as a

motion for summary judgment, be, and the

same is, hereby GRANTED. The clerk of the

court is hereby directed to enter final

judgment in favor of the defendants in this

cause.

DONE AND ORDERED.

-64a-

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 89-3404

JOHN DOE,

Plaintiff-Appellant,

August 17, 1990

versus,

H. LAWRENCE GARRETT, III, as Secretary of

the Department of the Navy, and J.W.

HARRIS, as Commanding Office, Naval Air

Reserve, Jacksonville,

Defendants~-Appellees.

On Appeal from the United States District

Court for the Middle District of Florida

SUGG 0) 0) Cc

-65a-

(Opinion June 25, 1990, 11th Cir., 198_,

me * Se

Before: KRAVITCH and JOHNSON, Circuit

Judges, and KAUFMAN*, Senior District

Judge .-

PER CURIAM:

(x) The Petition(s) for Rehearing are

DENIED and no member of this panel nor

other Judge in regular active service on

the Court having requested that the Court

be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the

Suggestion(s) of Rehearing En Banc are

DENIED.

( ) The .Petition(s) for Rehearing are

DENIED and the Court having been polled at

the request of one of the members of the

Court and a majority of the Circuit Judges

who are in regular active service not

having voted in favor of it (Rule 35,

Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the

Suggestion(s) of Rehearing En Banc are also

DENIED.

( ) A member of the Court in active

service having requested a poll on the

reconsideration of this cause en banc, and

* Honorable Frank A. Kaufman, Senior U.S.

District Judge for the District of

Maryland, sitting by designation.

-66a- 4

a majority of the judges in active service

not having voted in favor of it, Rehearing

En Banc is DENIED.

ENTERED FOR THE COURT:

LZsZ

UNITED STATES CIRCUIT JUDGE ee

»

-67a-

\y