U.S. District Judge Leonie M. Brinkema refused to dismiss a lawsuit challenging the Air Force’s refusal to allow healthy Airmen living with HIV to deploy to combat zones and continue serving, and issued a preliminary injunction blocking discharges pending a final ruling on the merits in a pending lawsuit. Brinkema’s February 15 ruling in Roe v. Shanahan, 2019 U.S. Dist. LEXIS 25419, 2019 WL 643971 (E.D. Va.), found that the plaintiffs – two Airmen living with HIV and OutServe-SLDN, an organization for LGBT servicemembers and veterans representing other service members living with HIV – have “made a strong preliminary showing that the deployment policy applied to asymptomatic HIV-positive servicemenbers cannot withstand rational basis review.”
Soon after Donald Trump took office and James Mattis became Secretary of Defense, it became clear that the Pentagon was going to reverse course and systematically dismiss uniformed personnel who were living with HIV, regardless of the state of their health. Although a literal interpretation of Defense Department regulations would suggest that those who are thriving on anti-retroviral regimens should be able to serve virtually without limitation, the new regime in the Defense Department hierarchy began rendering seemingly inexplicable decisions, determined to discharge highly functioning personnel. Although this reason was not openly advanced by the defendants or alluded to by the judge, one suspects that the decision may well have been motivated, at least in part, by a desire to avoid the costs of providing expensive medications to the servicemembers involved.
The cases of the two plaintiffs, proceeding anonymously as Richard Roe and Victor Voe, well illustrate the bizarre situation. Both men enlisted in the Air Force during President Barack Obama’s first term, after the “Don’t Ask, Don’t Tell” policy had been repealed. Both had very successful careers until they were diagnosed as HIV-positive in 2017. Although both men, complaint with their treatment regimen, have undetectable viral loads and no measurable impairments, their careers have been side-lined and their hopes for promotions and overseas deployments stymied.
Both men had been deployed overseas prior to their diagnosis. The military screens all active-duty personnel periodically for HIV, and will not enlist HIV-positive individuals, so it is clear that both men contracted HIV while in the service. Despite the strongly positive recommendations of their commanders and colleagues, the Pentagon’s internal review process has rejected their attempts to remain in the service and both were scheduled for discharge. But Judge Brinkema’s preliminary injunction will keep them in the service while this case plays out, and depending on compliance with her preliminary injunction, these highly trained individuals should be treated as available for overseas deployment.
The Defense Department’s motion to dismiss the case focused on three arguments. First, they claimed that the plaintiffs had failed to exhaust administrative remedies because, despite encountering a categorical refusal at multiple levels of internal decision-making, they decided not to appeal once more to the Air Force Board for the Correction of Military Records (AFBCMR), which would be futile under the circumstances.
Judge Brinkema rejected defendants’ suggestion that this required dismissal of the lawsuit. “Roe and Voe did not seek judicial review without having given the Air Force a meaningful opportunity to examine its policies and decisions,” she wrote. “To the contrary, they presented their claims to a complex, tiered administrative review process – one that involved medical evaluations, written submissions, and formal hearings – culminating in an extensive administrative record and final written decisions by the [Secretary of the Air Force Personnel Council],” which was “acting on the authority delegated by the Secretary of the Air Force.” The AFBCMR would not have authority to issue a binding recommendation in any event, and its recommendation would go to the very Secretary of the Air Force on whose authority the plaintiffs’ appeals had been denied.
Secondly, the Defense Department argued that its personnel decisions based on medical concerns are “altogether immune from judicial scrutiny,” effectively the same argument the government has been making in defense of Trump’s ban on transgender military service. Judge Brinkema pointed out that military personnel decisions are not wholly free from judicial scrutiny, and that under precedents of the 4th Circuit Court of Appeals binding on her, she found that the factors to be considered tipped in favor of allowing the case to continue, particularly since “at this preliminary stage, [the plaintiffs] have made a strong showing that defendants’ policies are irrational, based on a flawed understanding of HIV epidemiology, and inconsistently applied.” She also noted that with OutServe-SLDN as a co-plaintiff representing a class of similarly situated HIV-positive personnel facing unjustified discharges, “the far-reaching nature of these claims surely counsels in favor of judicial review.”
Finally, the Defense Department argued that the individual plaintiffs lack standing because they have not actually been discharged. “Defendants’ argument that plaintiffs lack standing is, as is often the case, a matter of characterization,” wrote Brinkema. “In their view, the Article III injury on which plaintiffs rely is that ‘they have been prevented from continuing to serve in the Air Force.’” Because their terms of enlistment had expired during this dispute, in some sense, the case could be characterized as being about their ability to re-enlist. But their terms of service had been extended while the lawsuit is pending. The defendants argued that because there is no guaranteed right to re-enlist, the plaintiffs have suffered no injury if they leave the military at the end of their extensions of service. However, the judge observed, “Plaintiffs label this argument a ‘Catch-22,’ arguing that Roe’s and Voe’s ‘terms have expired only because Defendants’ illegal policies forced them into the medical discharge process and prevented them from reenlisting.”
Furthermore, Brinkema wrote, because their terms of service were extended, a “favorable decision would be likely to remedy their injury” and, furthermore, OutServe, representing numerous HIV-positive service members, continues to have associational standing on behalf of those members who are at various stages of their terms of enlistment. Thus, she rejected all three arguments and denied the dismissal motion.
As to the preliminary injunction motion, expert medical testimony submitted in support of the motion convinced Brinkema that plaintiffs are likely to win their claim on the merits that the defendants’ approach to the issue runs afoul of the 5th Amendment and the Administrative Procedure Act (APA). Even though, in the context of a challenge to the military policy, she found that it is likely that the case will have to be decided using the lowest level of judicial scrutiny – rational basis review – the way the Air Force is implementing its policies as described in the Complaint would fail to meet even that test. “At least at this stage,” she wrote, “plaintiffs have made a strong and clear showing that defendants’ policies are irrational, outdated, and unnecessary and their decisions arbitrary, unreasoned, and inconsistent.”
In essence, the Defense Department has been proceeding as if treatment for HIV-infection were still mired in the futility of the 1980s, when HIV infection usually led to severe debility and death. The decision to discharge Roe and Voe was based on their classification as “non-deployable,” which in turn was based on the mischaracterization of their health as presenting unacceptable risks to themselves and others were they deployed overseas. Under inflexible regulations, people living with HIV cannot be deployed without a “waiver” of the general restriction on deploying personnel overseas who have serious medical conditions, and the record before Judge Brinkema includes a statement by the official in charge of the “waiver” process that they would never issue a waiver for somebody living with HIV.
Judge Brinkema’s opinion takes a deep dive into the medical testimony, and concludes that the Air Force’s application of its regulations is inconsistent with the facts. “To be sure,” she wrote, “HIV remains incurable, and Roe and Voe must take daily medication to ensure that their viral loads remain suppressed. But that fact does not justify the categorical prohibition at issue here. Although HIV-positive individuals who suddenly stop antiretroviral treatment are vulnerable to ‘viral rebound,’ appreciable physical effects are not immediate.” According to the expert testimony in the record, it “often takes weeks for an individual’s viral load to return to clinically significant levels, and even then, the virus enters a period of clinical latency that can last years, often with no symptoms of negative health outcomes. What is more,” she continued, “plaintiffs have identified several serious medical conditions treated with daily medication that do not subject servicemembers to the same categorical denial of deployability.”
She found that “there appears to be no reason why asymptomatic HIV is singled out for treatment so different from that given to other chronic conditions, all of which are subject to worsening upon disruption of daily medication.” She also noted the latest evidence that those with undetectable viral load “cannot transmit the virus to another,” obviating the Defense Department’s argument that deployed troops must be able to source blood transfusions. Roe and Voe’s “risk of transmitting HIV during military service remains vanishingly low,” she observed, pointing out that “Defendants have not identified a single recorded case of accidental transmission of HIV on the battlefield, which is unsurprising given the uncontroverted evidence that even without effective treatment, the risk of transmission through non-intimate contact such as blood splash is negligible.”
The judge also found that the defendants had totally failed to counter the plaintiffs’ expert medical evidence. They cited a report to Congress that asserted that “HIV infection has the potential to undermine a Service member’s medical fitness and the readiness of the force,” but she found that this was just a summary of the Defense Department’s policy position: “It contains no evidence, whether anecdotal or otherwise, of the effect of HIV on a servicemember’s medical fitness or the military’s readiness.”
“In sum,” wrote Brinkema, “While plaintiffs have presented considerable evidence in support of their arguments, defendants rely on little more than ipse dixit.” Thus, she found, the defendants’ position on deployability was not supported.
As to the discharge decisions themselves, the court found the argument that these men were evaluated on a “case by case” basis and found to be non-deployable mandating discharge, to be unsupported as well. She wrote that “the evidence in this record clearly establishes that HIV seropositivity alone is not inconsistent with ongoing military service, does not seriously jeopardize the health or safety of the servicemember or his companions in the service, and does not impose unreasonable burdens on the military when compared to similar chronic conditions.” Both men’s commanding officers recommended retention, which even the Secretary of the Air’s Force’s Council recognized in its opinion on their appeals. But the Council’s decision failed to make an assessment that had any relationship to the individual situations of these men.
This, Brinkema found, makes the discharge decisions “contrary to the APA” for two reasons. First, reliance on the nondeployability policy for HIV-positive service members is not based on an individualized assessment, but rather a categorical ban, which “renders the decision to discharge them arbitrary and capricious.” Due to the lack of any relationship to a legitimate interest of the military, the Council “violated agency policy mandating that HIV status alone is not a permissible ground for separation. A decision in direct conflict with the agency’s own standards, and one based on a failure to consider key aspects of the problem, cannot stand under the APA.”
Further, she found that the other factors relevant to awarding preliminary relief were all present. The men’s military careers would be irreparably damaged by an unjustified discharge, which would also deprive them of continued coverage of military health care. The Defense Department argued that an improper discharge could be remedied after the fact by an award of damages, but Brinkema strongly rejected the idea. “Roe and Voe, along with other similarly situated HIV-positive servicemembers, face a particularly heinous brand of discharge, one based on an irrational application of outmoded policies related to a disease surrounding which there is widespread fear, hostility, and misinformation,” she wrote. “In their cases, the ‘stigma of being removed from active duty and being labeled as unfit for service’ is coupled with the indignity suffered because the reason for their discharges bears no relationship to their ‘ability to perform their jobs.’”
Furthermore, the reason for a military discharge can have secondary consequences, forcing the individuals to “real their condition,” thus subjecting them to discrimination in civilian life as well. “This is precisely the type of harm that back pay or reinstatement cannot remedy and for which status quo-preserving preliminary relief is designed.” The judge found that the remaining equitable factors also cut in favor of plaintiffs, and especially the public interest. She found that these men, dedicated to service with excellent records, were rendering valuable public service that would be interrupted or ended if she did not issue the preliminary injunction.
Because her analysis of the case focused specifically on the practice of the Air Force, Judge Brinkema did not grant plaintiffs’ request to make her injunction apply to the entire Defense Department, but on the other hand she rejected the government’s request that it apply only to Roe and Voe and not to the other similarly situated Air Force personnel.
Lambda Legal joined with OutServe-SLDN to represent the plaintiffs. Appearing in the district court were cooperating pro bono attorneys from the Washington office of Winston & Strawn LLP, Laura Joy Cooley and Andrew Ryan Sommer.