Roe v. Shanahan

The plaintiffs have made a strong preliminary showing that the U.S. Air Force’s approach to servicemembers living with HIV is irrational, inconsistent, and at variance with modem science.

The plaintiffs are Air Force members who have been diagnosed with HIV. They allege that the military defendants’ policies with respect to the deployment and separation of HIV-positive servicemembers, on their face and as applied, violate the Equal Protection Clause. The plaintiffs also allege that the decisions to separate the plaintiffs from the Air Force were arbitrary and capricious, an abuse of discretion, and contrary to law. Finally, they allege that the defendants’ policies are based on outdated thinking that does not comport with the current state of HIV medical science, constituting an independent violation of the Administrative Procedure Act.

The Air Force’s discharge determinations were entirely dependent on the antecedent findings that the plaintiffs were subject to deployment restrictions based on the rationale that their condition makes them ineligible for deployment to an area of operation where servicemembers of their rank and responsibilities are frequently deployed. This categorical rule fails to pass muster under even the most deferential form of scrutiny. HIV, while incurable, is no longer a progressive, terminal illness. 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.

The process to which the plaintiffs were subjected does not comport with even the minimal requirements of the APA. Along with other similarly situated HIV-positive servicemembers, the plaintiffs 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. In their cases, the stigma o f 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. It is further compounded by the stigma and discrimination facing those living with HIV and the commonsense observation that HIV-positive servicemembers, if discharged under these circumstances, will likely be forced to reveal their condition. 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 equities weigh heavily in plaintiffs’ favor, as does the public interest. The public benefits from the security provided by military departments populated with individuals dedicated to the notion of service. The plaintiffs have carried out their responsibilities in a creditable manner, earning the trust of their commanding officers and fellow servicemembers.

This case deals with national institutions, national policies, and national interests; the appropriate scope of relief should be national as well. Servicemembers who enlist in the Air Force serve the country at large, and there are no relevant regional or localized facts that would counsel in favor of limiting the scope of the injunction to the named plaintiffs.

Motion to dismiss denied; motion for preliminary injunction granted in part.

Roe v. Shanahan, No. 1:18cv1565, Feb. 15, 2019. EDVA at Alexandria (Brinkema).

Categories: Opinions, U.S. District Court - Eastern District of Virginia

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