Deese v. Esper

Decision Date02 September 2020
Docket NumberCivil Action No. RDB-18-2669
Citation483 F.Supp.3d 290
Parties Kevin DEESE, et al., Plaintiffs, v. Mark T. ESPER, et al., Defendants.
CourtU.S. District Court — District of Maryland

Anthony C. Pinggera, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, Bryce Cooper, Pro Hac Vice, Winston and Strawn LLP, Scott A. Schoettes, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Chicago, IL, Geoffrey Eaton, Pro Hac Vice, Joseph Masullo, Pro Hac Vice, Lauren Gailey, Pro Hac Vice, Zachary Benjamin Cohen, Winston and Strawn LLP, Peter E. Perkowski, Pro Hac Vice, OutServe-SLDN, Inc., Washington, DC, for Plaintiffs.

Neil R. White, Office of the United States Attorney, Baltimore, MD, for Defendants.


Richard D. Bennett, United States District Judge Plaintiffs Kevin Deese ("Deese"), a United States Naval Academy graduate, and John Doe1 ("Doe"), a graduate of the United States Air Force Academy, both tested positive for the human immunodeficiency virus ("HIV") prior to their graduation. Both Plaintiffs were discharged by Defendants2 under Department of Defense, Navy, and Air Force regulations which categorically bar service academy graduates living with HIV from commissioning as officers. Those same regulations would not have required Deese and Doe's separation from ordinary military service had they been serving as enlisted men during the time of their HIV diagnosis. In this action, Plaintiffs challenge the military's regulations and the Defendants’ actions under the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 500 - 706 (Counts I, II, III, IV, and V). They also bring claims under the Fifth Amendment's equal protection components (Counts IX and X). Separately, Plaintiff Doe brings a claim under the Fifth Amendment's procedural due process guarantee (Count VI), as well as an equitable estoppel claim (Count VII), and seeks a declaratory judgment (Count VIII).

Now pending is the DefendantsMotion to Dismiss or for Summary Judgment. (ECF No. 42.) The parties’ submissions have been reviewed and a telephonic hearing was conducted in this matter on the record on July 16, 2020.3 See Local Rule 105.6 (D. Md. 2018). For the reasons that follow, DefendantsMotion to Dismiss or for Summary Judgment (ECF No. 42) is GRANTED IN PART and DENIED IN PART. Summary Judgment is ENTERED in favor of Defendants on Count I. Count II is REMANDED IN PART to permit disability evaluation system ("DES") review of Doe's claims. Summary Judgment is ENTERED in favor of Defendants on the remaining claims in Count II. Counts VI, VII, and VIII are DISMISSED WITH PREJUDICE. The Motion to Dismiss is DENIED as to Counts III, IV, V, IX, and X. Specifically, Counts III, IV, and V (the "categorical bar" APA claims) may proceed, as well as Counts IX and X (the equal protection claims).4


Defendants seek Summary Judgment in their favor as to PlaintiffsAdministrative Procedure Act claims (Counts I, II, III, IV, and V) and dismissal as to the remaining counts. In ruling on a motion for summary judgment, this Court reviews the facts and all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; see also Hardwick ex rel. Hardwick v. Heyward , 711 F.3d 426, 433 (4th Cir. 2013). When reviewing a motion to dismiss, this Court accepts as true the facts alleged in the plaintiffs’ complaint. See Aziz v. Alcolac, Inc. , 658 F.3d 388, 390 (4th Cir. 2011). Accordingly, the background of this case is drawn from both the allegations of the Amended Complaint and its attachments (ECF Nos. 1 and 33) and the voluminous administrative records filed in connection with Plaintiffs’ APA claims. (ECF Nos. 38, 39 *SEALED*.)

I. The State of HIV Treatment.

Once a deadly diagnosis, the human immunodeficiency virus ("HIV") is now manageable thanks to the advent of new antiretroviral medications. (Am. Compl. ¶ 28, ECF No. 33.) The effectiveness of these medications is measured by their impact on the "viral load", i.e. , the number of copies of the virus in one milliliter of a person's blood. (Id. ¶ 29.) A person in successful treatment will have a viral load of less than 200, which is considered "virally suppressed," or a viral load of less than 48-50, which is called an "undetectable" viral load. (Id. ) Today, antiretroviral drugs have few or no side effects for most people and are prescribed immediately after an HIV diagnosis. (Id. ¶ 30.) With timely and appropriate treatment, a 25-year-old who has been diagnosed with HIV has nearly the same life expectancy as one who does not have HIV. (Id. ¶ 31.)

A person with a suppressed viral load is incapable of transmitting HIV. (Id. ¶ 32.) Even without treatment, HIV is not as easily transmitted as was once believed. Transmission of HIV is rare outside of the context of sexual activity, sharing of injecting drug equipment, blood transfusion, needle sticks, or perinatal exposure. (Id. ¶ 33.) According to the Centers for Disease Control and Prevention ("CDC"), the risk of exposure through other means is "negligible." (Id. )

II. Military Regulations Governing HIV.

Congress has restricted the appointment of commissioned officers to persons who are "physically qualified for active service." 10 U.S.C. § 532(a)(3). The Departments of Defense, Navy, and Air Force have promulgated regulations designed to implement this restriction. In accordance with those regulations, individuals who have tested positive for HIV may not be commissioned as officers. The same regulations would not require the immediate discharge of active duty service members who have been diagnosed with HIV after enlisting.

Since 1985, the Department of Defense has instituted uniform policies governing HIV.5 Department of Defense Instruction ("DoDI") 6130.03 (ECF No. 1-1) governs the medical standards for appointment, enlistment, or induction in the military services. The regulation generally provides that members of the military must be free of contagious disease and otherwise medically fit for duty. DoDI 6130.03 ¶ 4 (ECF No. 1-1 at 3.) The bulk of the regulation is devoted to listing a myriad of medical conditions which are disqualifying for military service. Id. Encl. 4 (ECF No. 1-1 at 11-50.)

The presence of HIV or serological evidence of infection is listed among these disqualifying conditions. Id. ¶ 24(b) (ECF No. 1-1 at 39.) The policy permits the "Secretaries of the Military Departments" to waive the medical qualification standards on a case-by-case basis. Id. Encl. 2 ¶ 3(b) (ECF No. 1-1 at 8).

DoDI 6485.01 (ECF No. 1-3) governs the monitoring and management of HIV among military service members. The instruction states that it is Department of Defense policy to "[d]eny eligibility for military service to persons with laboratory evidence of HIV infection for appointment, enlistment, pre-appointment, or initial entry training for military service pursuant to DoDI 6130.03" and to "[p]eriodically screen Service members for HIV infection." DoDI 6485.01 ¶ 3 (ECF No. 1-3 at 2.) Active-duty and reserve component service member who test positive for HIV are not automatically separated from the military, but instead are 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...." Id. ¶ 2(c) (ECF No. 1-3 at 7.)

The Navy and the Air Force have issued HIV instructions tailored to their branches of the military. Secretary of the Navy Instruction ("SECNAV") 5300.30E (ECF No. 1-4) concerns the management of HIV, Hepatitis B, and Hepatitis C infection in the Navy and Marine Corps. The Instruction's accession policy—applicable to prospective recruits—provides that "[i]ndividuals confirmed HIV antibody positive, or who have evidence of chronic HBV or HCV infection are not eligible for military service." SECNAV 5300.30E ¶ 4(a) (ECF No. 1-4 at 5.) Active duty personnel who test positive after induction are not immediately discharged. The Navy's retention policy states that "on a case-by-case basis" individuals with controlled HIV "may be considered for [duty outside of the continental United States] or large ship platform tours." Id. ¶ 9(b) (ECF No. 1-4 at 10.)

Specific procedures apply to Naval Academy midshipmen who test positive for HIV:

USNA midshipmen shall be processed for separation from the Naval Academy and discharged when confirmed HIV positive, or when diagnosed with chronic HBV or HCV infection. SECNAV may elect to delay separation to the end of the current academic year. A midshipman who is otherwise qualified and granted such a delay in the final academic year may be graduated without commission and thereafter discharged. An honorable discharge shall be issued if the sole basis for discharge is HIV seropositivity or chronic HBV or HCV infection. Recoupment of educational expenses shall be in accordance with existing statutory requirements and Navy personnel policies.

Id. ¶ 4(c)(3) (ECF No. 1-4 at 7.) The Assistant Secretary of the Navy for Manpower and Reserve Affairs is ultimately responsible for carrying out these procedures, and all other procedures, set forth in SECNAV 5300.30E. Id. ¶ 17(a) (ECF No. 1-4 at 23.)

The Air Force's HIV instruction, AFI 44-178 (ECF No. 1-11), is similar. The Air Force's accession policy states that "[a]pplicants infected with HIV are ineligible for enlistment or appointment. Waiver for HIV infection is not authorized." AFI 44-178 ¶ 2.2.1 (ECF No. 1-11 at 6.) As in the Navy, Air Force retention policies applicable to active duty personnel are more lenient. An Air Force Service member cannot be discharged solely because he has tested positive for HIV after enlistment. Id. ¶ A9.1.1 (ECF No. 1-11 at 37.)

Air Force academy cadets are subject to HIV screening prior to their appointment as officers. AFI 44-178 ¶ A2.1 (ECF No. 1-11 at 16.) Should they test positive, the following procedure...

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    • November 30, 2022 64–65, 300 A.2d 367. Cash-N-Go argues that the circumstances of this case move it beyond the "ordinary." Relying on Deese v. Esper , 483 F. Supp. 3d 290 (D. Md. 2020), Cash-N-Go postulates that an estoppel claim against the State may succeed where it does not threaten state resources or ......
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