Roe v. U.S. Dep't of Def.

• Decision Date: 10 January 2020
• Docket Number: No. 19-1410,19-1410
• Citation: 947 F.3d 207
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

947 F.3d 207

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.

No. 19-1410

United States Court of Appeals, Fourth Circuit.

Argued: September 18, 2019

Decided: January 10, 2020

Amended: January 14, 2020

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 out-comes. 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, ...