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A court battle over a gay San Francisco psychiatrist’s refusal to repay the Air Force for his medical school costs following his discharge arrived at the 9th U.S. Circuit Court of Appeals on Wednesday. Although the court seemed to consider opening one avenue for John Hensala to bring his case that a lower court had closed, a panel that would usually be considered favorable to Hensala seemed skeptical of his effort to avoid paying back the $71,000 cost of his medical school education. Judge A. Wallace Tashima, one of the 9th Circuit’s more liberal members, opened with a question suggesting a lower court’s reasoning was sound. U.S. District Judge William Alsup of the Northern District of California partly relied on a 9th Circuit precedent upholding then-President Bill Clinton’s controversial “Don’t Ask, Don’t Tell” policy toward gays in the military in rejecting Hensala’s case. “You have to tell us why it doesn’t control,” Tashima told Hensala’s lawyer, Clyde Wadsworth, special counsel at San Francisco-based Heller Ehrman White & McAuliffe. Wadsworth said that case, Holmes v. California Army National Guard, 124 F.3d 1126, concluded courts must defer to the military on matters of national security. But recoupment isn’t a matter of national security, combat readiness or unit cohesion, he told the panel. “Here we’re talking about the next step, the added penalty” for revealing one’s homosexuality, Wadsworth said. If the court rules that Holmes doesn’t control, the case could be returned to Alsup for discovery on whether Hensala’s First Amendment and equal protection rights were violated. Those constitutional claims appear to be Hensala’s best chance, as a challenge to the Air Force’s administrative decisions, which are generally given deference by courts, appeared to be dead. Representing the Air Force, Justice Department counsel E. Roy Hawkens said Hensala told the military he was gay in order to avoid his service commitment. By the time Hensala was summoned to serve at a St. Louis base, he had completed medical school at Northwestern University and spent five years in residency and fulfilling a fellowship. “He himself concedes he was aware of the ‘Don’t Ask, Don’t Tell’ policy,” Hawkens said. A key question is whether Hensala knew that announcing his sexuality would lead to his discharge, and thus violate the terms of his contract. Wadsworth has argued that the constitutionality of the policy was in flux at the time and that assessing his client’s state of mind by what courts have done since then is unfair. Hensala has always maintained that he was willing to serve. But Hawkens noted that Hensala’s letter notifying the Air Force of his sexuality was prepared with the help of a lawyer. “We simply say that getting counsel is a very strong indicator of his knowledge,” Hawkens said. Tashima put the question to Wadsworth. “We believe that inference is improper � Dr. Hensala’s retention of counsel cannot be used against him. It’s pure speculation. It’s rank speculation,” Wadsworth said. “The Air Force has the burden of showing that Dr. Hensala knew he would be discharged.” Hensala’s ray of hope came in the form of questions from the panel, which also included Judges Richard Paez and Sidney Thomas, asking whether Hensala could bring a constitutional challenge to the Air Force’s recoupment decision without challenging it on administrative grounds. Hawkens conceded that he could. The interest by the panel in whether Hensala could bring strictly constitutional claims suggests the judges could closely scrutinize the question of whether Holmes applies to those claims. With “Don’t Ask, Don’t Tell” having passed muster with the 9th Circuit, Alsup decided that the Air Force was within its rights to ask Hensala for the medical school expenses. There are only about 30 cases where the military has demanded recoupment from service members discharged for being gay. The government acknowledged three where the individual was not forced to repay. Tashima wondered if those three weren’t asked to repay so the military could avoid charges that it has a blanket policy of asking for recoupment from service members discharged under “Don’t Ask, Don’t Tell.” “It’s almost like we throw in a token case here and there,” Tashima said. Hawkens said that in other cases where service members voluntarily forgo their commitments, the percentage that are asked to repay is even greater. “A conclusion can be drawn that this is a more lenient standard,” Hawkens said.

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