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.