Filed Date: Dec. 19, 2018
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On December 19, 2018 two US Airmen under pseudonym and OutServe-SLDN, a network of LGBTQ military service-people, filed suit against the U.S. Department of Defense, in the U.S. District Court for the Eastern District of Virginia. The Plaintiffs argued that the Department of Defense had violated equal protection under the Fifth Amendment and the Administrative Procedure Act. The plaintiffs, represented by Winston and Strawn LLP, LAMBDA Legal Defense and Education Fund, and Outserve-SLDN, sought declaratory and injunctive relief allowing HIV-positive service members to continue to serve, as well as money damages. The plaintiffs alleged that they were discharged from their duties in the Air Force due to their HIV status.
Specifically, the complaint alleged that the plaintiffs were discharged based on their HIV status. The complaint explains that what it means to be living with HIV has changed significantly since its origin, “for most people living with HIV, medication renders their HIV inconsequential to their daily lives.” Both plaintiffs Roe and Voe were service members in good standing. Both had been successfully deployed to foreign countries twice and were excelling in their positions when they were diagnosed with and began treatment for HIV. Both of the plaintiffs were able to get their viral loads to an undetectable status quickly, however they were both dismissed from the Air Force solely on the basis of the HIV status. When the Air Force discharged Roe and Voe, the Air Force described HIV as rendering the service members ineligible for deployment to the Central Command area of responsibility. The Air Force also noted the service members were precluded from being able to deploy world-wide without a waiver.
The case was assigned to Judge Leonie M. Brinkema. On January 11, 2019 the plaintiffs filed a motion for a preliminary injunction to preserve the status quo until there was a judgment on the merits of the plaintiffs claims. The plaintiffs requested that the injunction prevent the defendants from restricting Roe and Voe and others similarly situated from being promoted, changing duty station, or re-training on the same terms as other service members living with HIV who were not being separated. On January 25, 2019, the Department of Defense opposed the plaintiffs' motion for a preliminary injunction and also filed a motions to dismiss for lack of jurisdiction and failure to state a claim.
A hearing was held before Judge Brinkema on February 15, 2019. The same day, Judge Brinkema issued an opinion granting in part and denying in part the plaintiffs' motion for preliminary injunction. The order enjoined the defendants from separating or discharging from military service Richard Roe, Victor Voe, and any other similarly situated active-duty member of the Air Force because of their classification as ineligible for worldwide deployment or deployment to the United States Central Command area due to their HIV-positive status. Judge Brinkema also denied the defendants' motion to dismiss. 359 F.Supp.3d 382.
The same day the order was issued, the plaintiffs OutServe-SLDN filed a motion to amend the preliminary injunction. In the motion, the plaintiffs asked the court to remove the phrase "active-duty." There was a member of the Air National Guard who faced separation from service on the basis of HIV-positive status. Four days after the motion was filed, the court denied to amend the preliminary injunction, and Judge Brinkema said that this airman was not similarly situated to the named plaintiffs because he is not on active-duty and he is part of the National Guard, which is a separate institution from the Air Force. Judge Brinkeman dismissed this motion without prejudice.
On March 22, 2019 plaintiffs OutServe-SLDN filed a motion to compel documents and information withheld on the basis of deliberative process privilege. The plaintiffs claimed that the defendants were withholding 161 documents because they allegedly involved Defendants’ decision-making regarding policies affecting service members living with HIV. The documents at issue were related to the determinations that Plaintiffs Roe and Voe were limited in their ability to deploy, documents that defendants relied upon in writing or amending Air Force policies relating to individuals living with HIV, and documents related to the deployability of other Airmen living with HIV, and the decisions to separate or retain those Airmen. The defendants opposed this motion, and a hearing was held before Magistrate Judge Ivan D. Davis on March 29, 2019. The motion to compel production was held in abeyance by Judge Davis pending review of a similar issue in the companion case, Harrison v. Spencer.
On April 5, 2019, the defendants filed a motion to modify the preliminary injunction to include the following language:
If an Airman wishes to be excepted from this Order and be separated or discharged, the Air Force shall provide them a written notice that their consent to separation is not required and that a federal lawsuit may result in his or her retention. After receiving such a notice, the Airman may make a written request to proceed with his or her separation or discharge, and then the Air Force may proceed with the separation or discharge.The plaintiffs did not oppose this motion, and three days later, Judge Brinkema granted the motion and amended the February 15 Order as proposed.
The defendants filed a notice of appeal to the U.S. Court of Appeals for the Fourth Circuit on April 16, 2019. They appealed the February 15, 2019 decision denying the defendants motion to dismiss that granted in part and denied in part the plaintiffs' motion for a preliminary injunction. (Appellate Docket No. 19-01410). Amicus briefs were filed by the HIV Medicine Association (with the American Academy of HIV Medicine, GLMA: Health Professionals Advancing LGBTQ Equality, and Infectious Diseases Society of America), former military officials, and the American Public Health Association (with Duke Law Health Justice Clinic, Southern AIDS Coalition, The National Alliance of State and Territorial AIDS Directors, and NMAC). All three amicus briefs were in support of the appellees. Oral argument was held on September 18, 2019 before a panel of Fourth Circuit Judges comprised of Judges James A. Wynn Jr, Albert Diaz, and Henry F. Floyd.
Back in the district court, on May 3, 2019, the defendants filed a motion to dismiss for lack of jurisdiction in part. The defendants argued that the plaintiffs lacked standing to sue since Outserve was not injured by the military's policies nor was it the type of institutional plaintiff that can sue based on injury to its members. The plaintiffs rejected both of these contentions. On May 31, 2019 oral argument was held before Judge Brinkema, and on the same day, Judge Brinkema ordered that the motion to dismiss be held in abeyance so that the parties could engage in additional discovery.
On June 18, 2019, following a decision in the companion case Harrison v. Shanahan, regarding the production of documents where the defendants similarly opposed the motion on the basis of deliberative process privilege, Magistrate Judge Davis issued an order granting in part and denying in part the plaintiffs' motion to compel documents and information. Judge Davis denied the motion to compel with regard to one document because it was not relevant to plaintiffs' claims because it was an appeal of a physical evaluation board hearing for someone who was not a party to this case. Based on the decision in Harrison v. Shanahan, Judge Davis ordered the defendants to produce the other requested documents because they were relevant to the plaintiffs' case, there is no other source of information, and the possible negative effect on the government is outweighed by the plaintiffs need for the information.
In July 2019, the plaintiffs filed another motion to compel documents and information withheld on the basis of deliberative process privilege. After the June 2019 order by Magistrate Judge Davis, the defendants produced many documents, however, the defendants refused to produce complete versions of eight emails to and from senior officials regarding the Air Force’s decision to refer asymptomatic HIV-positive Airmen into the Disability Evaluation System and to separate them from service.
The plaintiffs filed a motion for partial summary judgment on July 23, 2019 with respect to their claim that the determinations of Roe and Voe's deployability and separability violated the APA, and their claim that the determinations of Roe and Voe's deployability and separability are arbitrary and capricious or an abuse of discretion.
On July 19, 2019, the defendants filed a motion to stay the summary judgment briefings and the bench trial set to begin on September 9, 2019 because of the Fourth Circuit appeal in this case. Oral argument before a panel of Fourth Circuit judges was set for September 18, 2019. On August 1, 2019, Judge Brinkema cancelled the district court trial scheduled for September 9 and stayed all proceedings until further order of the court.
On appeal, on January 10, 2020 the Fourth Circuit published an opinion affirming the decision of the district court. Four days later the Fourth Circuit published an amended superseding opinion written by Judge Wynn and joined by Judges Diaz and Floyd, once again affirming the decision of the district court. The district court previously concluded that 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. On the motion to dismiss, the Fourth Circuit concluded that the plaintiffs were likely to succeed on at least one claim (either that discharging Roe and Voe violated the APA or that the deployment policies violate the APA), and that absent judicial review the plaintiffs were likely to suffer irreparable harm. 947 F.3d 207.
On the preliminary injunction, the Fourth Circuit said the plaintiffs were likely to succeed on the merits of their claim that their deployment policies at issue violate the APA because the government has not and cannot reconcile the policies with current medical evidence. Judge Wynn wrote that the district court 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. Department of Defense regulations require individualized determinations based on objective evidence to determine a service member’s fitness for duty or separation under the Disability Evaluation System. The Fourth Circuit said that the government's explanation for why is has effectively imposed a ban on deploying HIV-positive service members to the Central Command area of responsibility is "at odds with modern science." Because the Air Force ignored developments in knowledge and treatment that allow HIV-positive service members to carry out their duties without posing any substantial risk of transmission, the Air Force denied these service members an individualized determination of their fitness for military service. 947 F.3d 207
OutServe-SLDN and the American Military Partner Association merged in August 2019 and formed the Modern Military Association of America (MMAA). Due to this merger, On March 10, 2020, plaintiffs Voe and Roe filed a consent motion to substitute parties. The plaintiffs requested that the court substitute the Modern Military Association of America for OutServe-SLDN in this case, which the court did the next day.
On March 27, 2020, Judge Brinkema denied the defendants' renewed motion to dismiss and in a separate order also denied the plaintiffs' motion to compel documents and information. Judge Brinkema found that MMAA (formerly Outserve) had direct standing as the organization personally suffered an injury due to the increased staffing required by the greater number of HIV-related calls. 2020 WL 1493557.
On May 4, 2020 plaintiff Roe filed a motion for summary judgment. One month later, the defendants also filed a motion for summary judgment. A hearing before Judge Brinkema is scheduled for August 4, 2020. The case remains open.
Margaret Vogel (2/13/2020)
Sabrina Glavota (6/19/2020)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/8439246/parties/roe-v-defense/
Brinkema, Leonie M. (Virginia)
Bauer, Julie A. (Illinois)
Cooley, Laura Joy (District of Columbia)
Barghaan, Dennis C. (Virginia)
Anthony, Peter J. (District of Columbia)
Brinkema, Leonie M. (Virginia)
Davis, Ivan D. (Virginia)
Wynn, James Andrew Jr. (North Carolina)
See docket on RECAP: https://www.courtlistener.com/docket/8439246/roe-v-defense/
Last updated Dec. 26, 2023, 3 a.m.
State / Territory: Virginia
Filing Date: Dec. 19, 2018
Case Ongoing: Yes
HIV-positive members of the US Air Force (under pseudonyms Richard Roe and Victor Voe) who were separated from service solely because of their HIV-positive status
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Causes of Action:
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Order Duration: 2017 - None
Content of Injunction:
Type of Facility: