Roe v. Shanahan

• Decision Date: 15 February 2019
• Docket Number: 1:18-cv-1565 (LMB/IDD)
• Citation: 359 F.Supp.3d 382
• Parties: Richard ROE, et al., Plaintiffs, v. Patrick M. SHANAHAN, in His Official Capacity as Acting Secretary of Defense, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

359 F.Supp.3d 382

Richard ROE, et al., Plaintiffs,

v.Patrick M. SHANAHAN, in His Official Capacity as Acting Secretary of Defense, et al., Defendants.

1:18-cv-1565 (LMB/IDD)

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

Signed February 15, 2019

Laura Joy Cooley, Andrew Ryan Sommer, Winston & Strawn LLP, Washington, DC, for Plaintiffs.

R. Trent McCotter, U.S. Attorney's Office, Alexandria, VA, for 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 Finally, Counts IV and V allege that several of defendants' policies "are based on outdated thinking that does not comport with the current state of HIV medical science" and that defendants' failure to update those policies amounts to an independent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 discharged³ 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 number 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 ("AFI") 44-178, § 2.4, at A298-99.⁸ 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 "[in]compatible 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

...