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Unanimous Federal Appeals Panel Blasts Trump Administration in HIV-Military Discharge Cases

Posted on: January 14th, 2020 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 4th Circuit, based in Richmond, Virginia, blasted the Trump Administration on January 10 for relying on “outmoded”  information that is “at odds with current science” when the Air Force moved to discharge otherwise healthy HIV-positive service members based on the spurious assertion that they were not available for deployment outside the United States.  Roe v. U.S. Department of Defense, 2020 U.S. App. LEXIS 821, 2020 Westlaw 110826 (4th Cir., Jan. 10, 2020).

The court affirmed a preliminary injunction that was issued last year by U.S. District Judge Leonie M. Brinkema, barring the discharges while the case proceeds to an ultimate ruling on the merits.  The court’s opinion, written by Circuit Judge James Wynn, provides a detailed review of relevant Defense Department policies  and current medical facts, leaving little doubt that Judge Brinkema’s conclusion that plaintiffs are likely to win their case is solidly grounded in legal reasoning.

The three-judge panel consisted of Wynn, who was appointed by Barack Obama, and Albert Diaz and Henry Floyd, both also appointed by Obama.  At the time of his nomination to the court of appeals, Judge Floyd was a District Judge who had been appointed by George W. Bush.

Lambda Legal and Outserve-SLDN brought the case on behalf of two service members, anonymously identified as Richard Roe and Victor Voe, as well as other Outserve members who are HIV-positive and subject to discharge for that reason.  Both Roe and Voe had years of meritorious service when they were diagnosed as HIV-positive in 2017 as a result of the Defense Department’s policy of periodically requiring personnel to submit to HIV testing.  Both men immediately went into treatment, are taking retroviral therapy, have undetectable HIV, and are healthy and uncompromised in their ability to perform their duties.

Defense Department written policies state unequivocally that HIV-positive personnel who are “determined to be fit for duty will be allowed to serve in a manner that ensures access to appropriate medical care.”  The Air Force has a written policy stating that HIV-positive status “alone is not grounds for medical separation or retirement,” and states that “force-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,” and “may not be separated solely on the basis of laboratory evidence of HIV infection.”

The Catch-22, however, comes with the Air Force’s insistence that personnel must be deployable anywhere in the world, and in particular to the central theater of Air Force active operations, known as CENTCOM, which covers operations spanning North Africa, Central Asia, and the Middle East.  Under a rule known as “Modification 13,” 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.”  It lists “confirmed HIV infection” as “disqualifying for deployment.”  The official in charge of granting waivers has stated that it is highly unlikely that a waiver would be granted for HIV-positive servicemembers to be deployed to CENTCOM’s area, and in fact no such waiver has ever been granted.

In this litigation, the Defense Department takes the position that neither it, nor in particular the Air Force, has an absolute ban on continued employment of healthy HIV-positive personnel.  On the other hand, since most of the Air Force’s current activity is in the CENTCOM area, Modification 13 prohibits deployment of HIV-positive personnel to CENTCOM without a waiver, and the official in charging of granting waivers does not grant them for HIV-positive personnel, there is, de facto, a ban.

The lawsuit claims that the discharge of Roe, Voe and similarly-situated service members for being HIV-positive violates the Administrative Procedure Act (APA), as being “arbitrary and capricious” in light of the facts of their individual cases, and also violates the Equal Protection requirements of the 5th Amendment.  Judge Brinkema and the court of appeals narrowed their attention to the alleged APA violation, under the well-established approach of avoiding making a constitutional ruling if the plaintiff can prevail based on a statutory claim.

In this case, it seemed clear to Brinkema and the appeals panel that the government’s position was inconsistent with medical facts, based on outmoded ideas about HIV and current treatments. The court emphasized that Roe and Voe take daily pills that do not require any special treatment (refrigeration, for example, or shielding from temperature extremes, which were required for some HIV treatments prior to the introduction of the pills now in use) and have not generated any significant side effects for either man.  The court summarizes the well-established science that somebody with undetectable levels of HIV presents virtually no risk of transmission through casual contact, and even blood exposure or sexual contact with somebody under retroviral treatment whose HIV level is undetectable is highly unlikely to result in transmission.

Both men present themselves as fully capable of performing their duties, and in both cases their commanding officers have endorsed their request to be allowed to continue serving, as have military physicians.  However, the Air Force, despite the requirements in published policies to evaluate each case on its individual merits, has maintained a de facto categorical exclusion.  Each man appealed the initial rulings against them internally, and both were met with virtually identical formulaic statements that they had to be discharged on medical grounds under the deployability rules, suggesting that their cases did not receive individualized consideration.

“To comply with the APA,” wrote Judge Wynn, “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found the choice made.  Agency action is arbitrary and capricious when the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

Analyzing these requirements, Wynn pointed out that “the Government has taken inconsistent positions on whether HIV-positive servicemembers may deploy to CENTCOM’s area of responsibility.” Prior to this litigation, the Government has treated Modification 13 as “a categorical ban,” but now it tries to appear to conform to APA requirements by emphasizing the possibility of a waiver being granted.  But this position is belied by the evidence that waivers have not been granted in any HIV case, despite the facts concerning these plaintiffs.

“If Modification 13 is not a categorical ban,” wrote Wynn, “the Air Force acted arbitrarily by treating them as categorically ineligible to deploy to CENTCOM’s area of responsibility and denying Plaintiffs the required individualized assessment of their fitness for continued service.  If Modification 13 is a categorical ban, the Government failed to satisfy the APA’s requirements in promulgating their policy.”

The court of appeals concluded that Judge Brinkema “rightly found that Plaintiffs are likely to succeed on their claim that the Air Force’s discharge decisions were arbitrary and capricious, in violation of the APA.”  This is the threshold factor in deciding whether to issue a preliminary injunction to pause the discharge process while the case is litigation has been met.  In this case, the men were designated for discharge without any individualized assessment, and furthermore without even applying for a waiver and being turned down, since the Air Force’s decision-makers predicted that CENTCOM would deny a waiver in their cases, making any such application virtually futile.  “Such a categorical predictive assessment is not ‘a satisfactory explanation’ for discharging each servicemember,” wrote Wynn, “and in using this predictive assessment to discharged these servicemembers, the Air Force violated Department of Defense regulations, failed to consider important aspects of the criteria for discharge, and explained its decision in a manner contrary to the evidence before it.”

Indeed, wrote Wynn, “Upon review, each explanation offered by the Government for the policy is unsupported by the record or contradicted by scientific evidence, leading us to conclude Plaintiffs have adequately shown that the Government failed to consider the relevant evidence and offers explanations so contrary to that evidence as to be arbitrary.”

For example, the court found the Government’s claim that HIV requires “highly specialized” treatment to be unsupported by the record in this case, which shows that managing HIV through anti-retroviral medications involves taking a single daily pill, “which does not require special storage or handling,” minimal side effects, and periodic blood tests that  can be simply performed by any general practitioner in the field, which are reduced to once a year after somebody has been “undetectable” for a period of two years.

The court similarly dismissed some of the standard arguments that were made earlier in the epidemic prior to current treatment protocols, and found that “the risk of battlefield transmission is unsupported by the record,” given the medical evidence that those with undetectable viral loads don’t transmit the virus.  The court found that the Defense Department’s own internal research showed that out of 1.13 million Army servicemembers deployed to Afghanistan or Iraq between 2001 and 2007, only 131 seroconverted, a lower rate than among servicemembers who were not deployed to those countries, and there was only one documented case of a servicemember who had seroconverted during deployment.  Furthermore, there was no documentation of any servicemember contracting HIV through non-sexual means, and no instances of transmission through  trauma care, blood splash, transfusion, or other battlefield circumstances.  In short, the government’s explanations for its policy were contradicted by the data it generated through its own internal studies.

“A ban on deployment may have been justified at a time when HIV treatment was less effective at managing the virus and reducing transmission risks,” wrote Wynn.  “But any understanding of HIV that could justify this ban is outmoded and at odds with current science.  Such obsolete understandings cannot justify a ban, even under a deferential standard of review and even according appropriate deference to the military’s professional judgements.”  As to Modification 13, relied upon so heavily by the Air Force in this case, it “evidences a complete failure to reasonably reflect upon the information contained in the record and grapple with contrary evidence – disregarding entirely the need for reasoned decision-making.”

The court found that plaintiffs easily met the other tests for obtaining preliminary relief, showing they are likely to suffer irreparable harm if they are given medical discharges.  Such discharges would effectively require them to “out” themselves as HIV-positive when they apply for non-military employment, and the interruption of their military careers would set them back in tangible and intangible ways if they ultimately won their cases and the Air Force was ordered to take them back.

The court also endorsed Judge Brinkema’s conclusion that the balance of the equities and the public interest support requiring the Air Force to keep these men employed while their cases are pending.  As to the argument that the injunction improperly intrudes into military personnel decision-making, the court agreed with Judge Brinkema that the relief request by the plaintiffs “that Defendants adhere to their stated policies and make nonarbitrary, personalized determinations about each individual’s fitness for service did not do violence to the notion of military independence.”

Thus, the court upheld Judge Brinkema’s order that the Air Force not discharge “active-duty servicemembers because they are classified as ineligible to deploy to CENTCOM’s area of responsibility due to their HIV status.”  The court rejected the government’s ritualistic opposition to a nation-wide injunction, finding that Supreme Court precedents support such relief in a case such as this.

In a parting shot, Judge Wynn wrote, “The Government’s explanations for why it has imposed an effective ban on deploying HIV-positive servicemembers to CENTCOM’s areas of responsibility are at odds with modern science.”  After concisely summarizing the basic evidence, he commented, “the Government did not consider these realities when discharging these servicemembers, instead relying on assumptions and categorical determinations.  As a result, the Air Force denied these servicemembers an individual determination of their fitness for military service,” which violates the APA.

Lambda Legal’s lead attorney on the case is Scott Schoettes of Lambda’s Chicago office.  Outserve-SLDN’s lead attorney is Peter Perkowski, Washington, D.C.  Amicus briefs were filed on behalf of a variety of individuals and groups, represented by Winston & Strawn LLP and Dentons US LLP, as well as GLBTQ Legal Advocates & Defenders, a Boston-based public interest law firm.

 

Federal Court Blocks Discharges of Healthy Airmen Living with HIV

Posted on: February 18th, 2019 by Art Leonard No Comments

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.