Roe v. Department Of Defense

947 F.3d 207 (4th Cir. 2020)

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Nature of the Case

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Facts

In 1984, researchers discovered that AIDS was caused by the human immunodeficiency virus (HIV), which could infect any person sufficiently exposed. 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. Even then, transmission is unlikely. The estimated per-exposure risk of transmitting untreated HIV during the riskiest sexual activity-receptive anal intercourse-is thought 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%. Antiretroviral therapy 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. 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. Antiretroviral therapy has both increased the quality of life of individuals with HIV and decreased the chance of transmission. 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.' Service members who are diagnosed with HIV after enlistment may not be discharged solely based on their HIV-positive status. 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.' A relevant decision-maker must 'cite objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture, to determine a Service member is unfit because of disability.' D provides a non-comprehensive list of medical conditions that prevent service members from deploying unless they obtain a waiver. The list includes 'diagnosis of [HIV] antibody positive with the presence of progressive clinical illness or immunological deficiency.' D does not preclude deployment or require a waiver for deployment of HIV-positive service members without a progressive clinical illness or immunological deficiency. Air Force Instruction 44-178, which provides that HIV-positive 'personnel must be assigned within the continental United States[,] Alaska, Hawaii, [or] Puerto Rico,' absent a waiver. P's primary care doctor recommended he be returned to duty. Nevertheless, the Air Force's Informal Physical Evaluation Board recommended P be discharged. Roe appealed. A Lt. Col. Okulicz stated that there was no 'medical reason to explain why P would not be returned to duty.' The Formal Physical Evaluation Board also recommended P be discharged. The Secretary of the Air Force Personnel Council affirmed the decision. It held that because 'deployability is a key factor in determining fitness for duty and P belongs to a career field with a comparatively high deployment rate[,] the Board determined he is unfit for continued military service.' Voe (P) experienced the same result. Ps sued D claiming a violation of the Administrative Procedure Act and the equal protection component of the Fifth Amendment's Due Process Clause. Ps moved for a preliminary injunction, and the Government moved to dismiss the case. The district court entered an injunction prohibiting the D from 'separating or discharging Ps, and any other similarly situated active-duty member of the Air Force because they are classified as ineligible for worldwide deployment or deployment to the [CENTCOM] area due to their HIV-positive status.' D appealed.