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Roe v. Shanahan

United States District Court, E.D. Virginia, Alexandria Division

February 15, 2019

RICHARD ROE, et al.. Plaintiffs,
v.
PATRICK M. SHANAHAN, in his official capacity as Acting Secretary of Defense, et al., Defendants.

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge

         Plaintiffs Richard Roe ("Roe") and Victor Voe ("Voe")[1] are members of the United States Air Force who have been diagnosed with the human immunodeficiency virus ("HIV") and who face imminent separation from service. Roe and Voe-together with plaintiff OutServe-SLDN, Inc. ("OutServe"), an organization representing the interests of veterans, active-duty servicemembers, and civilian employees of the U.S. Department of Defense ("DoD") who are LGBTQ or HIV positive-bring this action for declaratory and injunctive relief against the Secretary of Defense, the Secretary of the Air Force, and the DoD. Plaintiffs' complaint contains five counts. Count I, asserted against all defendants, alleges that defendants' policies with respect to the deployment and separation of HIV-positive servicemembers, on their face and as applied to Roe and Voe, violate the equal protection component of the Fifth Amendment's Due Process Clause. Counts II and III, which are asserted only against the Secretary of the Air Force, allege that the decisions to separate Roe and Voe were arbitrary and capricious, an abuse of discretion, and contrary to law in violation of the Administrative Procedure Act ("APA"). Finally, Counts IV and V allege that several of defendants' policies "are based on outdated thinking that does not comport with the current state of HIV medical science" and that defendants' failure to update those policies amounts to an independent violation of the APA.[2]

         Plaintiffs have moved for a preliminary injunction preventing Roe and Voe, along with similarly situated servicemembers, from being discharged[3] because of deployment restrictions due to their HIV status. Plaintiffs argue that injunctive relief is necessary to preserve the status quo pending final disposition of their constitutional and administrative law claims. Defendants oppose plaintiffs' motion and have moved to dismiss the complaint for lack of subject matter jurisdiction, arguing that plaintiffs' claims are premature and nonjusticiable; that plaintiffs are not entitled to injunctive relief; and that the scope of any relief granted must be limited to Roe and Voe.[4] The parties have fully briefed and argued their motions.[5] For the reasons stated below, defendants' motion to dismiss will be denied, and plaintiffs' motion for a preliminary injunction will be granted in part and denied in part.

         I. BACKGROUND

         A. Factual Background[6]

         1. Richard Roe

         Roe enlisted in the Air Force in 2012. Compl. for Declaratory & Injunctive Relief [Dkt. No. 1] ("Compl.") ¶ 57. He enjoyed early signs of success, including being promoted to Senior Airman ahead of schedule and successfully testing for Staff Sergeant, a noncommissioned officer rank, on his first try. Id. ¶ 58. Roe hoped to make the Air Force his lifelong career and one day commission as an officer. Id. ¶ 74.

         Roe's upward trajectory was halted in October 2017, when he was diagnosed with HIV while on active duty. Compl. ¶ 59. He began antiretroviral treatment immediately. Id. That treatment requires him to take one pill per day; the pills are stored in an ordinary pill bottle, and his prescription is refilled every 90 days. Id. Ever since he began treatment, Roe's "viral load"- the No. of copies of the HIV virus per milliliter of his blood-has registered as "undetectable."[7] Id. ¶¶ 51, 59. He alleges that because of his successful treatment, he remains physically and mentally capable of continuing to serve in the Air Force. See id ¶¶ 72-75.

         Because Roe had tested positive for HIV, Air Force regulations required that he "undergo [a] medical evaluation for the purpose of determining [his] status for continued military service." Air Force Instruction ("AFP') 44-178, § 2.4, at ¶ 298-99.[8] In late November 2017, he received a Duty Limiting Condition Report restricting his deployability pending a Medical Evaluation Board's ("MEB") determination of his fitness for duty. A568. The MEB was convened in January 2018. A554. Roe's commanding officer submitted an impact statement to the MEB affirming that despite Roe's diagnosis, he could "perform all duties without work-arounds, restrictions or limitations." A556. The commanding officer's recommendation was unambiguous: "[Roe] is a valued team member. Recommend retention." A557. The commanding officer made clear that his recommendation would not change even if Roe were to be put on an assignment limitation code that could restrict his deployability. Id. Several other servicemembers likewise submitted letters on Roe's behalf. A562-66. Also before the MEB was a physician assistant's report prepared in January 2018 after a physical examination of Roe. The physician assistant wrote that although Roe would require ongoing antiretroviral treatment, he was asymptomatic and complication-free. A586-88. In response to a question asking whether "any of [Roe's] HIV-related illnesses or complications affect his ... ability to work," the physician assistant selected "No." A588. An earlier report by an Air Force physician, also part of the record before the MEB, recommended that Roe be returned to active duty. A574.

         The MEB did not order Roe retained and returned to duty. Instead, it opted to refer Roe's case to an Informal Physical Evaluation Board ("IPEB"). A554. The IPEB issued its findings and recommendation on February 22, 2018. A549. Although the IPEB's report "acknowledge[d] the commander's recommendation for retention and statement that [Roe] is able to perform his daily in-garrison duties," it also asserted that Roe's condition "is subject to sudden and unpredictable progression"[9] and would "result in deployment restrictions that prevent him from being fully worldwide qualified." A550. As a result, the IPEB concluded that Roe's HIV status was "unfitting" and "[incompatible with the fundamental expectations of military service." Id. The IPEB recommended that Roe be discharged from the Air Force. A549.

         Roe appealed the IPEB's decision to the Formal Physical Evaluation Board ("FPEB"). Compl. ¶ 65. As part of the formal record of his appeal, Roe submitted a letter from the director of the HIV medical evaluation unit and infectious disease service at a military medical center. In the letter, the director opined that Roe "has no physical limitation that would prevent him from conducting his duties" and recommended that he be returned to active duty. A484. Roe also submitted letters from fellow servicemembers in support of his retention, a recent fitness report reflecting good scores, and commendations he had received during his time in service. See A482-548. A formal hearing was held before the FPEB in early April 2018. A481. The hearing lasted less than 30 minutes, and the FPEB affirmed the IPEB's decision roughly three hours later. Compl. ¶¶ 66-67. The FPEB, like the IPEB before it, recognized that Roe was successfully being treated and was asymptomatic. A481. It also acknowledged the commanding officer's recommendation that Roe be retained as well as Roe's "record of performance during his five years of military service and the numerous letters of support for his retention." Id. Nonetheless, the FPEB stated that under military regulations, Roe's HIV status was "disqualifying for deployment" to the Central Command ("CENTCOM") area of responsibility, [10] which "would have [a] significant effect on his career progression and place [an] increased burden on others within his career field." Id. Accordingly, the FPEB concluded that Roe's condition "is unfitting for continued military service" and reaffirmed that he should be discharged. A480-81 (emphasis in original).

         Roe appealed the FPEB's findings and recommendation to the Secretary of the Air Force, arguing that his condition "is simple to manage and does not place an undue burden on the Air Force." A471. He also argued that the FPEB's analysis was inconsistent with applicable Air Force regulations, which provide that "HIV seropositivity alone is not grounds for medical separation" and that HIV-positive servicemembers "who are able to perform the duties of their office, grade, rank and/or rating ... may not be separated solely on the basis of laboratory evidence of HIV infection."[11] Id. Finally, he challenged the assertion that his condition rendered him nondeployable, asserting that under the applicable regulations, HIV renders a servicemember nondeployable only "with the presence of progressive clinical illness or immunological deficiency"[12]-both of which he claimed were absent in his case. A471-72. Counsel was also appointed to represent Roe before the Secretary. Roe's counsel argued that the IPEB and the FPEB were "feign[ing] fealty to the DoD (and by extension Air Force) policy on retaining HIV[-]infected members, but us[ing] the bludgeon of world-wide qualification to effectively bash the policy aside." A465.

         The deputy director of the Secretary of the Air Force Personnel Council ("SAFPC"), Acting on authority delegated by the Secretary of the Air Force, rejected Roe's appeal on November 7, 2018. The decision, which refers to Roe as "the member," states in relevant part:

[Roe's] case was considered by the Air Force Personnel Board (AFPB), which made a recommendation regarding its disposition. The following rationale is provided for the final decision in this case. The Board considered the member's contention that he is fit and should be returned to duty. The Board noted the member has been compliant with all treatment, is currently asymptomatic, and has an undetectable [HIV] viral load. Additionally, he is able to perform all in[-]garrison duties, has passed his most recent fitness assessment without any component exemptions, and his commander strongly supports his retention. However, the Board noted the member's condition precludes him from being able to deploy world-wide without a waiver and renders him ineligible for deployment to the [CENTCOM] Area..., where the majority of Air Force members are expected to deploy. Deployability is a key factor in determining fitness for duty and the Board recognized the member belongs to a career field with a comparatively high deployment rate/tempo. Therefore, based on his inability to deploy and considering his current career point, the Board determined he is unfit for continued military service and shall be discharged with severance pay.

A460. Roe was advised that he had the "right to pursue further appeal" by applying to the Air Force Board for Correction of Military Records ("AFBCMR"). A462. He has not done so.

         Roe is scheduled to be discharged from the Air Force on March 28, 2019. Pls.' Memo. Ex. A [Dkt. No. 44] ¶ 7. His term of service had been set to expire in mid-2018 but was twice extended as he underwent the medical evaluation and administrative appeals process. Compl. ¶ 74. But for his impending discharge date, Roe's term of service (considering the extensions he received) would have expired on June 25, 2019. Pls.' Memo. Ex. A [Dkt. No. 44] ¶ 6. He alleges that he intended to reenlist for an additional term of service but was prevented from doing so because of the separation process. Id.

         2. Victor Voe

         Voe enlisted in the Air Force in 2011. Compl. ¶ 77. He has served in several countries overseas and in 2014 was deployed to the Middle East. Id. ¶ 78. Like Roe, Voe is dedicated to service in the Air Force. Indeed, after his first period of service in the Middle East, Voe voluntarily cut short the "dwell time" between deployments so that he could return for a second tour ahead of schedule. Id.

         Voe was diagnosed with HIV in March 2017. Compl. ¶ 79. He immediately began antiretroviral treatment, and since August 2017 his viral load has remained undetectable. Id. Voe takes two pills, at the same time, per day; those pills are stored in ordinary pill bottles and are refilled every 90 days. Id. ¶ 80. Voe claims that because of the treatment, he is asymptomatic and wishes to continue serving.

         After his diagnosis, Voe's case proceeded in lockstep with Roe's. Voe's deployability was restricted, and his case was referred to an MEB for initial evaluation. See A768. Voe's commanding officer prepared an impact statement for the MEB in which she stated that Voe was "fully capable of performing any activity/function" necessary for his career field. A763. The commanding officer endorsed Voe unreservedly: "Member superiorly performs all primary duties and has also volunteered with enthusiasm for several on/off base organizations/ function[s]. He is overall a valuable [Air Force] asset. Retain." A764. The commanding officer indicated that her recommendation would not change even if Voe were to be placed on an assignment limitation code that could limit his deployability. Id.

         The MEB found that Voe's HIV status made his "qualifications ... for worldwide duty questionable" and referred his case to an IPEB. A761. The IPEB acknowledged the recommendation of Voe's commanding officer but found that Voe's

medical condition prevents him from reasonably performing the duties of his office, grade, rank or rating; represents a medical risk to the health of [Voe] or the health/safety of others with continued service; is subject to progression; requires frequent follow-up with a medical specialist; and limits [Voe's] ability to meet mobility requirements.

A758.[13] Accordingly, the IPEB concluded that Voe's condition was "unfitting" and "incompatible with the rigors of military service" and recommended that he be discharged. A757-58.

         Voe appealed to an FPEB. His formal hearing before the FPEB lasted only twenty minutes. Compl. ¶ 84. Less than an hour after the hearing had concluded, the FPEB affirmed the IPEB's recommendation that Voe be discharged. Id. The FPEB acknowledged that Voe's "condition is welled [sic] controlled" and that he was asymptomatic. A756. But the FPEB found that because Voe would need "frequent follow-up[s] with a specialist"[14] and had been classified as nondeployable, his HIV condition made him "unfitting for continued military service." Id. (emphasis in original).

         Voe appealed to the SAFPC, which (acting on authority delegated by the Secretary of the Air Force) rejected the appeal on November 7, 2018-the same day Roe's appeal was rejected.[15] A748. The reasons given for denying Voe's appeal were identical to those provided in Roe's case:

[Voe's] case was considered by the Air Force Personnel Board (AFPB), which made a recommendation regarding its disposition. The following rationale is provided for the final decision in this case. The Board considered the member's contention that he is fit and should be returned to duty. The Board noted the member has been compliant with all treatment, is currently asymptomatic, and has an undetectable [HIV] viral load. Additionally, he is able to perform all in[-]garrison duties, has passed his most recent fitness assessment without any component exemptions, and his commander strongly supports his retention. However, the Board noted the member's condition precludes him from being able to deploy world-wide without a waiver and renders him ineligible for deployment to the [CENTCOM] Area ..., where the majority of Air Force members are expected to deploy. Deployability is a key factor in determining fitness for duty and the Board recognized the member belongs to a career field with a comparatively high deployment rate/tempo. Therefore, based on his inability to deploy and considering his current career point, the Board determined he is unfit for continued military service and shall be discharged with severance pay.

A747. Voe was advised of the right to appeal to the AFBCMR, A749, but has not done so.

         Voe's term of service was set to expire in early 2018 but was extended during the pendency of his physical evaluation and administrative appeals process. Compl. ¶ 88. Voe has been unable to apply for reenlistment for another term of service, id, and is set to be discharged from the Air Force on February 25, 2019, Pls.' Memo. Ex. B [Dkt. No. 44-7] ¶¶ 20-21. But for Voe's impending discharge, his term of service (taking into account the extensions he received) would extend until June 2019. Id. ¶ 20.

         3. The Human Immunodeficiency Virus (HIV)

         HIV epidemiology has undergone drastic changes since the disease first came to the public's attention in the 1980s. Compl. ¶ 49. The first sea change involved the means of treatment. Beginning in the mid-1990s, antiretroviral medications were developed that, if taken consistently, can effectively reduce a patient's viral load to zero. Id. ¶¶ 50-51. Those medications have negligible side effects and can prevent the type of immunological deficiencies and opportunistic infections typically associated with HIV and the Acquired Immunodeficiency Syndrome ("AIDS"). Id. ¶¶ 51-52. HIV remains incurable but is no longer a death sentence. When diagnosed promptly and treated appropriately, it "is a chronic, manageable condition" that does not substantially reduce a person's life expectancy. Id. ¶ 53.

         Another major development in the science and study of HIV relates to methods of transmission. HIV is not as easily transmitted as many people believe. For example, the highest-risk sexual activity-engaging in an act of receptive anal sex with an untreated HIV-positive person without using a condom or other means of prophylaxis-carries a risk of transmission of only 1.38%. Compl. ¶ 54. Other sexual activities pose transmission risks ranging from 0% to 0.08%. Id. Apart from sexual activities, only sharing needles, blood transfusions, and perinatal exposure pose a nonnegligible risk of transmission. Id. ¶ 55. According to the Centers for Disease Control and Prevention ("CDC"), HIV transmission through other means such as biting or accidental contact with bodily fluids "is technically possible but unlikely and not well documented." Id. Moreover, when an individual's viral load has been effectively suppressed by antiretroviral treatment, the risk of transmission is essentially reduced to zero. Id. ¶¶ 54-55.

         B. Regulatory and Administrative Background

         An intricate web of regulations, policies, and procedures govern the Armed Forces's treatment of servicemembers diagnosed with HIV. Understanding how those sources interact is crucial to analyzing the parties' arguments in this litigation.

         1. DoD Regulations

         Department of Defense Instruction ("DoDI") 6490.07 is designed to ensure that servicemembers "are medically able to accomplish their duties in deployed environments." DoDI 6490.07, § 1, at ¶ 87. The instruction sets out standards governing under what circumstances a medical condition will restrict a servicemember's deployability:

DoD personnel with existing medical conditions may deploy ... if all of these conditions are met:
(1) The condition is not of such a nature or duration that an unexpected worsening or physical trauma is likely to have a grave medical outcome or negative impact on mission execution.
(2) The condition is stable and reasonably anticipated by the pre-deployment medical evaluator not to worsen during the deployment in light of physical, physiological, psychological, and nutritional effects of the duties and location.
(3) Any required, ongoing health care or medications anticipated to be needed for the duration of the deployment are available in theater within the Military Health System. Medication must have no special handling, storage, or other requirements (e.g., refrigeration, cold chain, or electrical power requirements). Medication must be well tolerated within harsh environmental conditions (e.g. heat or cold stress, sunlight) and should not cause significant side effects in the setting of moderate dehydration.
(4) There is no need for routine evacuation out of theater for continuing diagnostics or other evaluations. (All such evaluations should be accomplished before deployment.)...

Id. § 4(b), at ¶ 89. A trained healthcare provider, in assessing whether a servicemember is deployable under these guidelines, must consider whether the condition "would put the individual at increased risk of injury or illness" or would be "likely to significantly worsen in the deployed environment." Id. enclosure 2, § 2, at ¶ 93.

         DoDI 6490.07 also identifies certain medical conditions that categorically prevent individuals from deploying unless a waiver is granted. DoDI 6490.07, § 4(c), at ¶ 89. The listed conditions are divided into several types, including those that affect a servicemember's ability to receive immunizations or wear protective equipment, Id. enclosure 3, § a, at ¶ 96; those that would require ongoing care or impair duty performance in a manner inconsistent with the nature or duration of the deployment, id § b, at ¶ 96-97; those that cause sudden incapacitation, Id. § c, at ¶ 97; pulmonary, sensory, cardiovascular, and mental-health disorders, Id. §§ d, f-h, at ¶ 97-98; and infectious diseases, which are defined to include "[a]ctive tuberculosis or known blood-borne diseases that may be transmitted to others in a deployed environment" and "[a] diagnosis of human immunodeficiency (HIV) antibody positive with the presence of progressive clinical illness or immunological deficiency." Id. § e, at ¶ 97.

         DoDI 6485.01 establishes the DoD's policies and procedures for "the identification, surveillance, and management of members of the Military Services infected with HIV." DoDI 6485.01, § 1, at ¶ 79. HIV-positive individuals are ineligible "for appointment, enlistment, pre-appointment, or initial entry training for military service." Id. § 3(a). Each military department must screen servicemembers periodically for evidence of HIV infection. Id. § 3(b). Active-duty servicemembers who test positive for HIV must be "referred for appropriate treatment and a medical evaluation of fitness for continued service in the same manner as a Service member with other chronic or progressive illnesses," and anyone "determined to be fit for duty will be allowed to serve in a manner that ensures access to appropriate medical care." Id. enclosure 3, § 2(c), at ¶ 85. Those found to be unfit for duty must be "separated or retired" pursuant to the Disability Evaluation System ("DES"). See Id. § 2(e).

         DoDI 1332.18 governs the DES, which is a multilevel system under the supervision of the secretary of each of the military departments. DoDI 1332.18, enclosure 3, § 1(a), at ¶ 15. The DES comprises (i) the MEB, a board of two or more physicians responsible for reviewing "all available medical evidence" and referring servicemembers with conditions "that will prevent them from reasonably performing the duties of their office, grade, rank, or rating" to the physical evaluation board process, id § 2(a)-(b), (d), at ¶ 16; (ii) the IPEB, which is composed of two to three military personnel and which is responsible for making "initial findings and recommendations," id § 3(a)-(b), (d)(1), at ¶ 18-19; and (iii) the FPEB, which is composed of (at minimum) a military officer, a medical officer, and a line officer, and which is responsible for conducting a formal hearing[16] in the event a servicemember challenges the IPEB's determinations, Id. § 3(c), (d)(2). The instruction also requires each military department to provide appellate review of the FPEB's findings and recommendation. Id. § 3(1), at A¶ 21.

         Finally, DoDI 1332.45-sometimes referred to as the "deploy or get out," or "DOGO," instruction, [17] e.g., Compl. ¶ 41-establishes the Armed Forces-wide policy that "[t]o maximize the lethality and readiness of the joint force, all Service members are expected to be deployable." DoDI 1332.45, § 1.2(a), at ¶ 62. Servicemembers who are deemed nondeployable for more than 12 consecutive months will be evaluated for retention, referral into the DES, or processing for administrative separation. Id. § 1.2(b). DoDI 1332.45 tempers this seemingly categorical rule in several ways. It gives the secretary of each military department the discretion to retain nondeployable servicemembers if doing so is found to be "in the best interest of the Military Service." Id. § 2.4(b)(1), at ¶ 64.[18] Additionally, "Service members with a medical condition that requires additional medical screening, or Combatant Command approval prior to deployment outside the continental United States, will be categorized as Deployable with Limitations." Id. § 3.3, at ¶ 66. Medical conditions triggering the "deployable with limitations" classification include those "referred to in DoDI 6490.07," id.-which, as discussed above, identifies conditions, including HIV under certain circumstances, that preclude deployment without a waiver.[19]

         2. Air Force Regulations

         Each military department has its own set of regulations and policies with respect to the treatment of HIV-positive servicemembers. The Air Force's main policy is set out in AFI44-178, which implements DoDI 6485.01 with respect to the "identification, surveillance, and administration" of Air Force members diagnosed with HIV. A294. HIV-positive individuals may not enlist in the Air Force. AFI 44-178, § 2.2.1, at ¶ 298. Active-duty servicemembers who contract HIV after enlisting "must undergo medical evaluation for the purpose of determining status for continued military service." Id. § 2.4. Testing positive for HIV does not automatically trigger discharge: "HIV seropositivity alone is not grounds for medical separation or retirement." Id. § 2.4.1, at ¶ 299. But servicemembers living with HIV are limited to assignment within the continental United States, Alaska, Hawaii, or Puerto Rico, and may not be deployed beyond those territorial limits absent a waiver. See id § 2.4.2.

         Attachment 9 to AFI 44-178 sets out the Air Force's policy on the retention or separation of servicemembers diagnosed with HIV. It echoes the instruction's clear mandate, providing that servicemembers "who are able to perform the duties of their office, grade, rank and/or rating ... may not be separated solely on the basis of laboratory evidence of HIV infection." Id. § A9.1.1, at ¶ 329. Instead, HIV-positive servicemembers are evaluated for retention or separation in accordance with the Air Force's DES. See id § A9.2.1. Those who are retained are given an appropriate assignment limitation code and are returned to duty. Id. § A9.1.2.

         The Air Force has released additional guidance documents on the treatment of HIV-positive servicemembers. For years, "nearly all cases of asymptomatic HIV resulted in a return to duty." A416. That changed in 2017, when the Air Force issued a memorandum stating that any asymptomatic HIV-positive servicemember would be medically evaluated and possibly referred to the DES. A341. The memorandum reiterates AFI44-178's policy that "[a]symptomatic HIV alone is not unfitting for continued service." Id. The Air Force reaffirmed that policy in a memorandum issued in June 2018, A338, and provided that all HIV-positive members would be evaluated for continued service in the same manner "as any Airman with a chronic and/or progressive disease," id Under the terms of the 2018 memorandum, no servicemember may be referred into the DES unless specific criteria are met. Id. Those criteria are set out in DoDI 1332.18:

[M]edical authorities will refer eligible Service members into the DES who:
(1) Have one or more medical conditions that may, individually or collectively, prevent the Service member from reasonably performing the duties of their office, grade, rank, or rating ...;
(2) Have a medical condition that represents an obvious medical risk to the health of the member or the health or safety of other members; or
(3) Have a medical condition that imposes unreasonable requirements on the military to maintain or protect the Service member.

DoDI 1332.18, enclosure 3, app. 1, § 2(a), at ¶ 26. Most recently, in September 2018, the Air Force reemphasized that servicemembers with asymptomatic HIV are to be "retained or separated on a case by case basis" based on the factors listed in DoDI 1332.18. A339.

         II. DEFENDANTS' MOTION TO DISMISS

         Defendants have moved to dismiss plaintiffs' complaint on the ground that subject matter jurisdiction is lacking. First, they argue that plaintiffs have failed to exhaust administrative remedies, rendering this lawsuit premature. Second, they contend that plaintiffs' claims raise nonjusticiable questions of military policymaking committed solely to the discretion of the executive branch. Finally, they argue that the plaintiffs lack standing to seek relief.

         Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, an action must be dismissed if the court lacks subject matter jurisdiction. The plaintiff, as the party asserting jurisdiction, bears the ultimate burden of proving such jurisdiction. Adams v. Bain,697 F.2d 1213, 1219 (4th Cir. 1982). If "a complaint simply fails to allege facts upon which subject matter jurisdiction can be based[, ]... all the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration." Id. But in the event of a factual dispute over the jurisdictional allegations in the complaint, the court may consider evidence outside the complaint "without converting the proceeding to one for summary ...


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