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Roe v. United States Department of Defense

United States Court of Appeals, Fourth Circuit

January 10, 2020

RICHARD ROE; VICTOR VOE; OUTSERVE-SLDN, INC., Plaintiffs - Appellees
v.
UNITED STATES DEPARTMENT OF DEFENSE; MARK T. ESPER, in his official capacity as Secretary of Defense; and BARBARA M. BARRETT, in her official capacity as Secretary of the Air Force, Defendants - Appellants. HIV MEDICINE ASSOCIATION; AMERICAN ACADEMY OF HIV MEDICINE; GLMA:HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY; INFECTIOUS DISEASES SOCIETY OF AMERICA; SECRETARY ERIC K. FANNING; SECRETARY DEBORAH LEE JAMES; SECRETARY RAY MABUS; DR. LAWRENCE J. KORB; REAR ADMIRAL ALAN M. STEINMAN; CAPTAIN THOMAS T. CARPENTER; AIDS UNITED; THE AMERICAN PUBLIC HEALTH ASSOCIATION; DUKE LAW HEALTH JUSTICE CLINIC; SOUTHERN AIDS COALITION; THE NATIONAL ALLIANCE OF STATE AND TERRITORIAL AIDS DIRECTORS; NMAC, Amici Supporting Appellees.

          Argued: September 18, 2019

          Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:18-cv-01565-LMB-IDD)

         ARGUED:

          Lewis Yelin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants.

          Geoffrey Paul Eaton, WINSTON & STRAWN LLP, Washington, D.C., for Appellees.

         ON BRIEF:

          Joseph H. Hunt, Assistant Attorney General, Ryan D. Newman, Deputy General Counsel, Michael J. Fucci, Associate General Counsel, Mark B. Stern, Marleigh D. Dover, James Y. Xi, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellants.

          Scott A. Schoettes, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Chicago, Illinois; Peter Perkowski, OUTSERVE-SLDN, INC., Washington, D.C.; Lauren Gailey, John W.H. Harding, Laura Cooley, WINSTON & STRAWN LLP, Washington, D.C., for Appellees.

          Peter J. Anthony, Laura Seferian, Washington, D.C., Richard D. Salgado, Dallas, Texas, Monica R. Thompson, DENTONS U.S. LLP, Phoenix, Arizona, for Amici Former Military Officials. Bennett Klein, Chris Erchull, GLBTQ LEGAL ADVOCATES & DEFENDERS, Boston, Massachusetts; Kevin J. Minnick, Adam K. Lloyd, Los Angeles, California, for Amici AIDS United, The American Public Health Association, Duke Law Health Justice Clinic, Southern AIDS Coalition, The National Alliance of State & Territorial AIDS Directors, and NMAC.

          Before WYNN, DIAZ, and FLOYD, Circuit Judges.

          WYNN, Circuit Judge:

         Richard Roe and Victor Voe are active-duty members of the Air Force.[1] They were discharged when the Air Force determined that their chronic but managed illness-HIV- makes them unfit for military service. Roe and Voe sought a preliminary injunction to maintain the status quo while they challenged their discharges. The district court concluded Roe and Voe were likely to succeed on their claims that their discharges were arbitrary and capricious, in violation of the Administrative Procedure Act, and irrational, in violation of Roe and Voe's equal protection rights. The Government appeals. For the reasons that follow, we affirm.

         I.

         A.

         In the early 1980s, many young and otherwise healthy people became ill with "a wide array of rare and often deadly infections." J.A. 656. In the United States alone, thousands died. Researchers identified acquired immunodeficiency syndrome (AIDS) as the reason so many otherwise healthy people died from these infections, but they did not understand the cause of AIDS. The people most frequently diagnosed with AIDS belonged to marginalized and stigmatized groups-gay men, intravenous drug users, Haitians, and hemophiliacs-and the disease acquired the colloquial moniker "gay cancer." In 1984, researchers discovered that AIDS was caused by the human immunodeficiency virus (HIV), which could infect any person sufficiently exposed. However, "by that time, many Americans already believed the cause of the disease to be a deviant lifestyle, a stigmatizing belief that . . . AIDS [w]as a punishment from God." J.A. 657. Stigma, fear, and misinformation about HIV persist today.

         Unlike some viruses, HIV is not easily transmitted. It cannot be spread by saliva, tears, or sweat, and it is not transmitted through hugging, handshaking, sharing toilets, exercising together, or closed-mouth kissing. HIV may be transmitted when certain infected body fluids-blood, semen, pre-seminal fluid, rectal and vaginal fluids, and breastmilk-encounter damaged tissue, a mucous membrane, or the bloodstream. However, even then, transmission is unlikely. The Centers for Disease Control and Prevention estimate the per-exposure risk of transmitting untreated HIV during the riskiest sexual activity-receptive anal intercourse-to be 1.38%. For other sexual activities, the per-exposure risk of transmitting untreated HIV drops to between 0% and 0.11%. And although the risk of transmitting untreated HIV through blood transfusion is high, people who have been diagnosed with HIV are not permitted to donate blood. Untreated HIV can also be transmitted through other types of exposure, but the risk is low. For needle sharing, the per-exposure risk is 0.63%, and for percutaneous needlestick injuries, the per-exposure risk is 0.23%. For other exposures to untreated HIV-like biting, spitting, and throwing bodily fluids-the CDC found the risk to be "negligible," meaning transmission of untreated HIV is "technically possible but unlikely and not well documented." J.A. 599.

         In 1996, antiretroviral therapy for HIV became widely available. Today, there is "an effective treatment regimen for virtually every person living with HIV," and 75% to 80% of people living with HIV are on a one-tablet antiretroviral regimen, which combines the required medications into a single pill taken daily. J.A. 598. The pills have no special handling or storage requirements and tolerate extreme temperatures well. They have minimal side effects and impose no dietary restrictions. And with adherence to treatment, an HIV-positive person's viral load becomes "suppressed" within several months and the virus reaches "undetectable" levels shortly thereafter, meaning there are less than 50 virus copies per milliliter of blood. J.A. 597, 795. In addition to medication, individuals with HIV receive viral load testing, which is usually conducted quarterly until the patient reaches an undetectable viral load. Then, testing is reduced to three times a year, and finally, once the viral load is undetectable for two years, testing is reduced to a semiannual basis. Testing is routine and can be performed by a general practitioner. Where on-site testing is unavailable, a blood sample can be shipped to a lab.

         Antiretroviral therapy is effective for virtually every person living with HIV. Usually, the virus develops resistance to antiretroviral therapy only when individuals fail to adhere to their treatment regimens. But even then, switching to a different regimen returns the individual to viral suppression. And failing to adhere to treatment does not result in immediate adverse health consequences. It "often takes weeks for an individual's viral load to reach a level that would not be considered 'suppressed.'" J.A. 795. If nonadherence continues, the person enters a clinical latency period during which the person may not have any symptoms or negative health outcomes. This clinical latency period "can last for years," and "can be reversed by restarting [treatment]." Id.

         Antiretroviral therapy has both increased the quality of life of individuals with HIV and decreased the chance of transmission. In contrast to the fraction-of-a-percent exposure risks for untreated HIV addressed above, according to the CDC, "people who take [antiretroviral medication] daily as prescribed and achieve and maintain an undetectable viral load have effectively no risk of sexually transmitting the virus to an HIV negative partner." J.A. 600. And other than through blood transfusions-again, "HIV infection is among a number of medical conditions that preclude blood donation"-risk of transmission from a person with an undetectable viral load through non-sexual means such as percutaneous needlestick injuries is very low, if such a risk exists at all. J.A. 459. An HIV diagnosis was "[o]nce considered invariably fatal within approximately eight to ten years," but now, HIV is a "chronic, treatable condition." J.A. 794. Those who are timely diagnosed and treated "experience few, if any, noticeable effects on their physical health and enjoy a life expectancy approaching that of those who do not have HIV." Id.

         B.

         The United States military does not permit HIV-positive individuals to enlist, nor does the military allow a servicemember who acquired HIV after joining to be appointed as an officer. However, servicemembers who are diagnosed with HIV after enlistment may not be discharged solely based on their HIV-positive status. Department of Defense policies address retention of servicemembers with medical conditions generally and HIV-positive servicemembers specifically.

         Department of Defense Instruction 6485.01, which applies to all military branches, provides that servicemembers diagnosed with HIV "will be referred for appropriate treatment and a medical evaluation of fitness for continued service." J.A. 134. And servicemembers "determined to be fit for duty will be allowed to serve in a manner that ensures access to appropriate medical care." Id. When determining fitness, HIV-positive servicemembers are evaluated "in the same manner as a Service member with other chronic or progressive illnesses." Id.

         The Air Force has also implemented policies for retaining HIV-positive servicemembers. For example, like the Department of Defense generally, the Air Force requires that "HIV-positive personnel . . . undergo medical evaluation for the purpose of determining status for continued military service." J.A. 350. Air Force Instruction 44-178 provides that HIV-positive status "alone is not grounds for medical separation or retirement." J.A. 351. It further clarifies, "[f]orce-wide, HIV-infected employees are allowed to continue working as long as they are able to maintain acceptable performance and do not pose a safety or health threat to themselves or others." J.A. 352. An attachment to Air Force Instruction 44-178 reiterates 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." J.A. 381.

         Accordingly, Department of Defense and Air Force policies permit HIV-positive servicemembers to continue to serve, so long as they are determined to be fit. Department of Defense Instruction 1332.18 governs servicemember fitness determinations under the military's Disability Evaluation System. A member is unfit for service "when the evidence establishes that the member, due to disability, is unable to reasonably perform duties of his or her office, grade, rank, or rating." J.A. 79. Such a finding requires consideration of "all relevant evidence," including whether the servicemember: "can perform the common military tasks required" of the servicemember's position; is medically permitted to take a "required physical fitness test"; can be deployed "individually or as part of a unit, . . . to any vessel or location specified by the Military Department"; and is able to fulfill any "specialized duties" of assignment. J.A. 79-80. In determining servicemember fitness, Department of Defense Instruction 1332.18 requires the relevant decision-maker to "cite objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture, to determine a Service member is unfit because of disability." J.A. 82. The instruction further clarifies, "[d]oubt that cannot be resolved with evidence will be resolved in favor of the Service member's fitness." Id.

         In making servicemember fitness determinations, the military considers deployability. And Department of Defense Instruction 6490.07 governs deployment-limiting medical conditions. This instruction is intended to ensure personnel are "medically able to accomplish their duties in deployed environments" by creating "minimum medical standard[s] for all deploying and deployed DoD personnel." J.A. 136-37. It provides that servicemembers with "existing medical conditions" may deploy based on a medical assessment and when certain criteria-including that a servicemember's condition is stable and will not require "routine evacuation out of theater" for evaluation and that needed medications can be provided in theater through the Military Health System-are met. J.A. 138.

         Department of Defense Instruction 6490.07 also provides a non-comprehensive list of medical conditions that prevent servicemembers from deploying unless they obtain a waiver. The list includes "diagnosis of [HIV] antibody positive with the presence of progressive clinical illness or immunological deficiency." J.A. 146. However, Department of Defense Instruction 6490.07 does not preclude deployment or require a waiver for deployment of HIV-positive servicemembers without a progressive clinical illness or immunological deficiency.

         Department of Defense Instruction 6490.07 permits "[m]ore stringent . . . Service-specific readiness requirements." J.A. 137. And the Air Force enacted such requirements in Air Force Instruction 44-178, which provides that HIV-positive "personnel must be assigned within the continental United States[, ] Alaska, Hawaii, [or] Puerto Rico," absent a waiver. J.A. 351. The waiver process follows the "normal procedures established for chronic diseases." Id.

         Eighty percent of all Air Force deployments are to Central Command's (CENTCOM) area of responsibility, which includes theater-level military operations spanning North Africa, Central Asia, and the Middle East. CENTCOM's Modification 13 to its Individual Protection and Individual/Unit Deployment Policy (Modification 13) sets policy for personnel deploying to its area of responsibility. Specifically, Modification 13 provides that personnel who are "found to be medically non-deployable . . . will not enter [the Central Command area] . . . until the non-deployable condition is completely resolved or an approved waiver . . . is obtained." J.A. 393. It also lists "disqualifying medical conditions" that preclude deployment without a waiver. J.A. 412. Within that list, Modification 13 states that "[c]onfirmed HIV infection is disqualifying for deployment." J.A. 417.

         C.

         From a young age, Roe wanted a career in the Air Force. He enlisted in 2012 and currently serves as a Staff Sergeant. During his time in the Air Force, he has received numerous awards and has been entrusted with increasing levels of responsibility. He mentors other airmen, describing that mentorship role as "one of the highlights of [his] military career." J.A. 588. In October 2017, Roe was diagnosed with HIV. He immediately began antiretroviral treatment. And now, he takes one pill per day and has an undetectable viral load. The pills are stored in an ordinary bottle, do not require special storage, and are refilled every 90 days. His doctors have not recommended his daily work be restricted as a result of his diagnosis.

         Following his diagnosis, Roe was referred to the Disability Evaluation System for assessment of his fitness for continued military service. Roe's commanding officer described him as "a valued team member" and recommended he be retained. J.A. 589. And Roe's primary care doctor recommended he be returned to duty. Nevertheless, the Air Force's Informal Physical Evaluation Board recommended Roe be discharged. Roe appealed to the Air Force's Formal Physical Evaluation Board. On appeal, Roe provided additional letters from his commanding officers and colleagues supporting his retention. Additionally, Roe submitted a letter from Lt. Col. Jason Okulicz, Director of the HIV Medical Evaluation Unit at the San Antonio Military Medical Center. In that letter, Lt. Col. Okulicz stated that there was no "medical reason to explain why [Roe] would not be returned to duty." J.A. 590. Nonetheless, the Formal Physical Evaluation Board also recommended Roe be discharged.

         Upon review, the Secretary of the Air Force Personnel Council affirmed the decision. In its memorandum, the Council acknowledged that Roe was "compliant with all treatment," "currently asymptomatic," and had an undetectable viral load. J.A. 545. And the Council noted that Roe was "able to perform all in garrison duties" and that his "commander strongly support[ed] his retention." Id. But the Council concluded Roe's HIV status "precludes him from being able to deploy world-wide without a waiver and renders him ineligible for deployment to the Central Command (CENTCOM) Area of Responsibility (AOR) where the majority of Air Force members are expected to deploy." Id. Because "[d]eployability is a key factor in determining fitness for duty . . . and [Roe] belongs to a career field with a comparatively high deployment rate[, ] . . . the Board determined he is unfit for continued military service." Id. Accordingly, Roe's discharge date was set for March 28, 2019.

         Voe experienced a nearly identical process. Voe enlisted in 2011 and has deployed twice in his time in the Air Force. In March 2017, Voe was diagnosed with HIV. He began antiretroviral treatment within two weeks, and his viral load reached undetectable levels in August 2017. He takes two pills a day. The pills are stored in an ordinary bottle, do not require special storage, and are refilled every 90 days. Voe takes his medication as prescribed and continues to have an undetectable viral load. His doctors have not recommended restricting his daily work as a result of his diagnosis. Voe would like to continue to serve and is "willing to go anywhere in the world to fulfill [his] duties." J.A. 579.

         After Voe's diagnosis, he was referred to the Disability Evaluation System for evaluation of his fitness for continued military service. Both the Informal Physical Evaluation Board and the Formal Physical Evaluation Board recommended that Voe be discharged. Upon review, the Secretary of the Air Force Personnel Council affirmed the decision and issued a memorandum almost identical to Roe's. The Council acknowledged that Voe was "compliant with all treatment," "currently asymptomatic," and had an undetectable viral load. J.A. 553. The Council observed Voe was "able to perform all in garrison duties" and that his "commander strongly support[ed] his retention." Id. But the Council concluded Voe's HIV status "precludes him from being able to deploy world-wide without a waiver and renders him ineligible for deployment to the Central Command (CENTCOM) Area of Responsibility (AOR) where the majority of Air Force members are expected to deploy." Id. Because "[d]eployability is a key factor in determining fitness for duty . . . and [Voe] belongs to a career field with a comparatively high deployment rate[, ] . . . the Board determined he is unfit for continued military service." Id. Voe's discharge date was set for February 25, 2019.

         Roe and Voe were not alone in receiving this disposition. OutServe-SLDN (OutServe), an organization that works on behalf of the LGBTQ and HIV-positive military community, identified four other HIV-positive Air Force servicemembers found unfit for duty and ordered discharged based upon identical reasoning.

         D.

         In December 2018, Plaintiffs filed suit against the Government in the United States District Court for the Eastern District of Virginia. Plaintiffs contended the Air Force's discharge decisions and the military's deployment policies violated the Administrative Procedure Act and the equal protection component of the Fifth Amendment's Due Process Clause. Plaintiffs sought declaratory and injunctive relief prohibiting the Air Force from discharging them and prohibiting the Air Force and the Department of Defense from enforcing their policies in a manner that limits the deployability of servicemembers diagnosed with HIV. Plaintiffs moved for a preliminary injunction, and the Government moved to dismiss the case.

         In an opinion dated February 15, 2019, the district court granted in part and denied in part Plaintiffs' motion and denied the Government's motion. See Roe v. Shanahan, 359 F.Supp.3d 382 (E.D. Va. 2019). The district court entered an injunction prohibiting the Air Force from "separating or discharging from military service Richard Roe, Victor Voe, and any other similarly situated active-duty member of the Air Force because they are classified as ineligible for worldwide deployment or deployment to the [CENTCOM] area due to their HIV-positive status." Dkt. No. 73. The district court later modified the injunction to allow the separation or discharge of Air Force servicemembers who did not wish to be retained during the ...


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