Opinion
Civil No. SA-99-CA-235-EP
March 29, 1999
ORDER
On this date the Court examined the petitioner's motion for a temporary restraining order and preliminary injunction, filed March 19, 1999, the petitioner's memorandum in support of petitioner's motion, and the respondents' opposition, filed March 24, 1999 in the above styled and numbered cause. After careful consideration, the Court is of the opinion that the motion should be denied.
FACTUAL BACKGROUND
Dennis Lipton is a Second Lieutenant in the United States Air Force. Lipton voluntarily enlisted in the Air Force and later applied for and received an Air Force sponsorship for four years of medical school education through the Health Professions Scholarship Program (HPSP). Lipton attended medical school at the University of Texas at Houston from August 1993 until he graduated in June 1997. In exchange for paying for Lipton's education, the HPSP contract required Lipton to complete four active duty tours during medical school, to apply to the Graduate Medical Education (GME) Board for residency training and to serve on active duty for four years, exclusive of active duty residency years. On May 28, 1997, three days before finishing medical school, Lipton contacted the Air Force Institute of Technology, claiming that he was a conscientious objector and requesting termination from the HPSP program. He stated that he was seeking separation from the military because it violated the teachings of his Christian faith, which had led him to become a pacifist. He added that his participation in the Air Force is inconsistent with his faith, and would be a violation of his conscience. On December 16, 1998, the Air Force denied Lipton's conscientious objector application, finding that Lipton failed to establish by clear and convincing evidence that his opposition to participation in war is sincerely held. The Air Force concluded that Lipton's primary motivating factor for seeking release from his military commitment is his disappointment in not being selected for a pathology residency, not his opposition to war.
Lipton is currently scheduled to report to active duty on March 29, 1999, either as a Flight Surgeon or General Medical Officer. Lipton has filed a notion for a temporary restraining order to prohibit the Air Force from ordering him to active duty. Lipton has also filed a petition for habeas corpus and asked for a preliminary and permanent injunction prohibiting the order to active duty. The Air Force opposes the issuance of an order on the basis that Lipton is not likely to achieve success on the merits and he will not suffer irreparable injury if the order is not granted.
STANDARD OF REVIEW
The District Court's review of a military decision denying conscientious objector status is "one of the narrowest [standards of review] known to the law." De Walt v. Commanding Officer, 476 F.2d 440, 442 (5th Cir. 1973). To prevail on the merits, the Plaintiff must show that he is opposed to war due to sincerely held moral, ethical, or religious beliefs. Wiggins v. Secretary of the Army, 751 F. Supp. 1238, 1240 (W.D. Tex. 1990), aff'd, 946 F.2d 892 (5th Cir. 1991); Gillette v. United States, 401 U.S. 437, 443, 91 S.Ct. 828, 832, 28 L.Ed.2d 168 (1971); Welsh v. United States, 398 U.S. 333, 339, 90 S.Ct. 1792, 1796, 26 L.Ed.2d 308 (1970);Witmer v. United States, 348 U.S. 375, 381-82, 75 S.Ct. 392, 395-96, 99 L.Ed. 428 (1955). The Court's review of the Plaintiff's claim is limited to the record relied upon by the Air Force.Cox v. United States, 332 U.S. 442, 454, 68 S.Ct. 115, 120, 92 L.Ed. 59 (1947); Armstrong v. Laird, 456 F.2d 521, 522 (1st Cir. 1972). The Air Force must have had a basis in fact for its denial. United States v. Henderson, 411 F.2d 224, 226 (5th Cir. 1969), cert. denied, 399 U.S. 916, 90 S.Ct. 2204, 26 L.Ed.2d 574 (1970). This standard of review is one of the narrowest in the law. De Walt, 476 F.2d at 442. Furthermore, the Court is hesitant from the start when reviewing military decisions.Pitcher v. Laird, 421 F.2d 1272, 1278 (5th Cir. 1970); Jacobs v. Stetson, 450 F. Supp. 568, 571-72 (N.D.Tex. 1978). Discharge from the Air Force is a privilege, not a constitutional right. In re Summers, 325 U.S. 561, 571-73, 65 S.Ct. 1307, 1313-14, 89 L.Ed. 1795 (1945). In light of the foregoing, the Court will now examine the Air Force's determination.
TEMPORARY RESTRAINING ORDER (TRO) /PRELIMINARY INJUNCTION
In order to obtain a TRO and preliminary injunction, Lipton must demonstrate: (1) a substantial likelihood of success on the merits; (2) a substantial threat that the plaintiff will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury outweighs the threatened harm to the defendant; and (4) that granting the temporary restraining order will not disserve the public interest. Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974).
ANALYSIS
A TRO and preliminary injunction will be denied in the instant case. First, concerning likelihood of success on the merits, it is unlikely that Lipton will prevail on the merits because the Secretary of the Air Force has a "basis in fact" for denying Lipton conscientious objector status. In conscientious objector cases, the agency's determination will stand if it has a "basis in fact." Wiggins v. Secretary of the Army, 751 F. Supp. 1238, aff'd, 946 F.2d 892 (5th Cir. 1991). Under this test, the reviewing Court is not to impose its own views of human nature upon the Air Force's conclusion, but to determine whether that conclusion is supported by fact. Because the test of sincerity is necessarily subjective, any facts which cast doubt on the petitioner's sincerity are relevant to the inquiry and may support the denial of his request. See De Walt v. Commanding Officer, 476 F.2d 440 (5th Cir. 1973).
Lipton claims that the Air Force's denial has no basis in fact. Lipton described the beliefs which underlie his application for discharge as follows:
I am seeking separation from the military because it violates the teachings of my Christian faith, which is rooted in love and forgiveness. My faith has led me to become a pacifist, and now I believe that all conflict can and should be solved non-violently. Pacifism means opting for peace in all relationships, whether it be a relationship between two people or between two nations . . . My participation in war is inconsistent with my faith, and would be a violation of conscience.
Lipton adds that the decision had no basis in fact because an Air Force Chaplain who interviewed Lipton concluded that Lipton's beliefs were sincerely held.
However, the Air Force conducted a thorough investigation and clearly has a basis in fact for its decision. The Air Force noted several inconsistencies in Lipton's application. First, Lipton really only began to question his ability to serve in the military after the GME release date of December 19, 1996. It was on this date that Lipton received written confirmation that he had been rejected for a pathology residency and selected for a deferred internship instead. Lipton contacted Captain Wooten at the Air Force Institute of Technology (AFIT) the next day to determine whether he could buy out his contract and be released from the Air Force. He was informed that a buyout was not an option. Around that time, Lipton told Colonel Harbison that he did not want to do primary care and that he experienced chest pains during clinical rotations. On January 9, 1997, Ms. Caver sent an e-mail to AFIT and carbon copy to Dr. McNeese stating that Petitioner wanted to withdraw from the HPSP program because the GME Board did not select him for a pathology residency.
Second, Lipton did not indicate any concerns about military service in his October 1996 residency application or accompanying personal statement about his career plans. Had Lipton been selected for a deferred pathology residency, as he wanted, he would have delayed his active duty service commitment for five years, which coincidentally is the length of his wife's residency program. A deferred position would have enabled Lipton and his wife to complete their training together in the civilian program of their choice.
Third, the contract that Lipton signed on April 9, 1993, stated in paragraph 3 that "I do not presently have a firm, fixed, or sincere objection by reason of religious training and belief to participation of war of any form or the bearing of firearms." Lipton was a Baptist when he signed the contract and continues to be one at this time. Although the fact that Lipton did not (or at least stated he did not) have a religious objection to participation of war when he signed the contract does not necessarily mean that his religious belief was not formed afterwards, it does cast doubt on Lipton's sincerity, especially in light of the other evidence. Lipton has not convincingly shown that he has a sincere religious belief preventing him from participating in the Air Force.
Joe Lineberger, the Deputy for Air Force Review Boards, Office of the Assistant Secretary, Manpower, Reserve Affairs, Installations and Environment, acts on behalf of the Secretary of the Air Force by designated authority. He was the official who acted on the conscientious objector application of Lipton. He concluded that Lipton did not meet his burden and denied his conscientious objector application, stating that:
When I reviewed 2Lt Lipton's application I considered two factors to be significant in this case. The first is that 2Lt Lipton first informed the Air Force of his conscientious objection three days before completing medical school, after receiving four full years of advanced educational assistance, totaling over $31,000.00. This is significant because, by his own testimony 2Lt Lipton had started to really question his participation in the military in December of his fourth year, after he found out he had not been chosen for a pathology residency. He contacted the Air Force Institute of Technology (AFIT) and the Physician Education Branch Chief at Randolph Air force Base, Texas about buying out his contract, but did not mention his anti-violence beliefs at that time. Instead, he only mentioned frustration about not getting the residency he had desired. He testified that the following month, after treating a WWII veteran, he decided that he never wanted to be a part of the military. He contacted the Health Professions Scholarship Program (HSPS) office and asked about his separation options, but again did not mention that he wanted to separate because of his antiviolence beliefs. After passing up these three opportunities to inform the air Force that he had serious moral doubts about serving in the military, he waited until he was just about to graduate before finally telling AFIT that he was a conscientious objector. The timing of this application called into question the sincerity of the applicant's claim.
The second factor that was significant is that the 2Lt Lipton appears to have an alternative, nonviolence related reason for wanting to avoid his military commitment. In December of his fourth year, 2Lt Lipton was informed that the Air Force did not choose him for the pathology residency he had sought, but instead intended to call him to active duty after only a one-year internship, thus depriving him of his career plans and potentially separating him from his wife, who is a doctor who will also be enrolled in a residency program. It was at this point that he first contacted AFIT and asked about buying out his contract.
Declaration of Joe G. Lineberger. The Fifth Circuit has clearly stated that an applicant's timing in filing for discharge has often been seen to cast doubt on his sincerity. De Walt v. Commanding Officer, 476 F.2d 440, 442 (5th Cir. 1973); Rothfuss v. Resor, 443 F.2d 554 (5th Cir. 1971);United States v. Henderson, 411 F.2d 224 (5th Cir. 1969). Based on these factors, the Air Force concluded that Lipton's religious belief were not sincere. The Air Force clearly has a basis in fact for making its decision.
Lipton cites two Fifth Circuit cases to support his position that the Air Force's denial of his application for discharge as a conscientious objector has no basis in fact: Helwick v. Laird, 438 F.2d 959 (5th Cir. 1971), and Pitcher v. Laird, 421 F.2d 1272 (5th Cir. 1970). However, those cases are very different from the instant case. In Helwick, Helwick was inducted into the United States Army; he did not voluntarily enter into a contract with the military for the payment of his education. InPitcher, although Pitcher voluntarily enlisted in the U.S. Army under a contract of service dated February 19, 1968, he submitted his written request for discharge on April 2, 1969. He had not entered into a contract with the Army for the army to pay for his educaton. Furthermore, he did not submit his request three days before completing medical school, after receiving four full years of advanced educational assistance, and after he found out he had not been chosen for a pathology residency. The instant case is very different from Helwick and Pitcher because the timing of Lipton's filing for discharge as a conscientious objector casts serious doubt on his sincerity. This timing issue was not present in Helwick and Pitcher.
Since Lipton has not established a likelihood of success on the merits, the Court need not examine the other factors.
Accordingly, for the reasons mentioned above, it is hereby ORDERED that Lipton's Motion for Temporary Restraining Order and Preliminary Injunction is DENIED.