good morning your honour's may please the court and lewis yellen from the department of justice and i'm here today on behalf of the department of defense and the air force i'd like to reserve five minutes of my time for rebuttal your honour's the district court fundamentally are in  holding that it is irrational for the military to choose not to deploy hiv positive service members to combat zones such as iraq and afghanistan the court similarly urged in the holding that the air force discharge decisions were inconsistent playable policies and that plaintiffs have established the irreparable injury necessary for an injunction for these reasons the court should vacate the preliminary injunction i'd like to begin by addressing the deployment policy there are safety risks and foreign policy harms that follow from deploying a hiv positive so you see in this case  it's both your honor the discharge was premised on the plaintiff's inability to deploy to centcom and the district held that it was irrational for the air force to deploy excuse me to discharge pla because of their inability to deploy the district court's decision unambiguously held that the deployment policy was irrational and that is a key part of its discharge decision that and and if as could well happen it had to be disclosed that centcom had done that that would cause pretty serious foreign policy diplomatic harm between the united states and those states because we would have violated those state laws on the safety risk side there are two types of risk i'd like to discuss st the baseline civilian context thankfully the risk of transmission of hiv is very low but it's not non and for that reason the united states public health service recommends that if anyone is exposed to a hiv they receive post exposure prophylactic care in light of the fact that even in the civilian context post exposure necessary it's not irrational for the military to decide that it does not want to have the requirement to ensure that every person who could conceivably be exposed to hiv in the combat context have prophylactic treatment in addition there is a imbalance between the likelihood of transmission which is slow and the significance of the harm if there is a transmission which is very high if there is a transmission the person who becomes infected has a chronic incurable though manageable disease but a chronic and incurable combination with the circumstances that the individuals would be and if they were deployed i would point your honor to the twenty million one hundred and forty two thousand and eighteen reports in which the department reports to congress in which the department of defen e explained the science that the department and its branches rely on in coming up with an h i the policy and in fact it which informed congress what was the time period of us that live the last report was two thousand and eighteen and the reports indicate that the department of defense on an annual basis has its experts review the current science and the air force on a bi annual basis reviews the science because the department of evidence that they actually waited to review one thing and you have to do something with it i mean review it means you look at it could be favor of something different where is the evidence that they we did consider it in light of what had been your own or perhaps i wasn't clear enough the report say that the department of defense and the air force have to reconsider their policies in light of the most recent evidence your honor something that i ask is sort of a just a fundamental background question because there seem to there seems to be a thicket of instructions and regulations here that times seem to be working across purposes or appear to be inconsistent let me just start with this d o d instruction six can tell in this record neither one of these two plaintiffs fit in that category so how do we get from that to a situation where we've got two service members who are asymptomatic being evaluated for discharge and not even being considered for a waiver explain that to me everything that you've described is accurate your honor six hundred and forty nine seventy one its face provides minimum standards and on its face permits the different parts of the military to consider more restrictive standards if they're necessary for let's say that i'm sorry i don't have the joint appendix citation i'll have it for you in my rebuttal it's quite it's i can assure the court it's absolutely explicit that it provides only minimum standards  centcom for reasons address now if the court will allow me has a more rigorous standard and that is because its area deals with some very serious combat zones and individuals could possibility of waivers to include waivers or people with hiv but the record seems to suggest that there is a an almost categorical bar to obtaining a waiver in that particular circumstance so clear that he can see he has the waiver authority for centcom he considers each particular waiver request on its face and there is a calculation that he has to make between the particular circumstances of the case and the condition of the person whose commander is seeking a waiver and the benefit to centcom if the person has skills that others can perform dr crone has explained that balance is not in favor of a waiver if however there is someone who has specialized skills that are not easy to replace i'm going to give a made up hypothetical someone who could defuse a nuclear bomb the waiver decision might be entirely different ok so laurie limit let's apply that to this case where in this record is that kind of sort of do you do specific analysis with respect to these two plaintiffs there isn't your honor because there was not a waiver request made and let me explain that your hon in making the discharge decision the personnel commission that made the ultimate decision made an evaluation of the likelihood that a waiver would be granted in this context looking at three things sent comes general lucky there so we're in these regulations is that authorize this kind of predictive futuristic assessment without actually looking at the individual characteristics of the service member your honor that there's nothing in the regulation that seems to suggest that there would be an individual as assessment would respect that each of us and there is an individual ised assessment your honor just there is where there is and there is it is based on a predictive judgment about waiver if it is the case that eighty percent of all deployments from the air force are to centcom and if it is the case that individuals with the in the positions that these plaintiffs hold are incredibly unlikely to receive a waiver as plaintiffs themselves can see that's not in dispute here your hon so even if there were a waiver decision made plaintiffs can see they would not they're very unlikely to receive a waiver there is nothing irrational or arbitrary or capricious about the air of the air force making that predictive judgment if i may turn made is permissible for the courts consideration to and supreme court precedent i don't have cases at hand i would be happy to supply those to the court that i will be very happy to do that sir now now if i may turn to the military specific harms your honour's small teams that are in combat could be grievously injured by an i e d in that circumstance is the teams have to provide emergency st aid to each other some people who are injured having to provide emergency st aid to other people who are injured in that circumstance it is much more likely that there is going to be blood to blood contact and if an individual shows one of these men only taken one peel a day your honor it's taken two pills a day you're on it makes that how they specialize to the point that it must be constant villages to but it's highly specialized your honor in the sense that it is a medication that has that is not common that would have to be supplied in combat in combat situations to each individual who needs to receive it such that if the medication were destroyed or lost it would have to be a common consistent every day operation the military has to undertake the question for this court is is it irrational for the military to choose not to undertake an additional burden of providing medication that would not or you  maintaining that one single special it's highly specialized your honor in the sense that it's not something that's commonly part of the kit of the medication kit that's provided to all individuals in question is is there a legitimate basis a reason that the military has for undertaking the policy that it did and even if it's a question of providing additional low just sticks to ensure that medication is supplied and the military is decision is not to undertake that additional burden that is not an irrational choice your honor it does not matter for purposes of rational basis review even if the military is inclined to take on the logistical burden for others suffering from different diseases yes your honor the military can reduce one risk under rational basis review without having to reduce other risks and the reason for that is that there are other considerations brought to bear which make the circumstances different high blood pressure diabetes are not  diseases that can be transmitted they are not infectious diseases they are not diseases that would which could produce chronic lifelong diseases and dish an ill person so it is the constellation of considerations that the military takes into account and again it does not have to be identical in all circumstances or is it a big understand your argument with respect to the constitutional claim but i want to get back to this statutory claim and yes are predictive ability to deploy is that something that the military has been engaged in from the get go when it comes to the service members or is it something recent it is more recent in two thousand and sixteen the policy started to change this fall this traces back to a two thousand and thirteen change in the department of defense regulations in two thousand and thirteen the department of fent of defense modified six thousand four hundred and eighty five one which is the hiv policy previously before two thousand and thirteen under the two thousand and six version the policy required referral only for hiv that was progressive policy and in two thousand and thirteen required referral for chronic and program or progressive the air force to bring its policies in compliance with that two thousand and thirteen change went through a process of ensuring that it referred individuals who are the question is when to refer an individual for medical evaluation this referral itself is not something that is the ultimate decision making this referral other infectious diseases required referral for chronic  progressive manifestation the change in the d o d policy brought the hiv policy in line with that in the change in the air force policy brought the air force policy in line with the  it's not in the record your honor but there is broad consistency there are some differences based on some of the unique features of the other branches the centcom policy is again i want to stress this is not in the record the centcom policy is similar with other combat commands that have similar areas of responsibility but it very it's very much on the particular conditions of each military department and each combatant honor we were well beyond the record i could tell your honor that the navy permits deployment but only on massive ships that have full compliments of medical facilities and where the logistics of providing for  medical the appropriate medication is not an issue but not in other situations again we are well beyond the record here this is not something that has been vetted yet in the district court  good morning your honor sir before i get directly into the arguments that government counsel made just now i want to make three kind of overarching points that i think helped frame the way we think about this appeal the st and the government didn't get into this at all is that the only thing that's at issue here is a preliminary injunction entered on a limited record for the sole purpose and function of preserving the status quo to keep these airman in the air force until their claims can be heard on the merits something that i should point out would have happened already if the government had moved over our objection to stay the trial pending this appeal the nd point your honor is that the status quo that's being preserved by this preliminary injunction keeping hiv positive airman in the air force to continue the careers that they've chosen and six and excelled in was the government's policy until about two years ago for about twenty years they didn't just charge people who had each i v routinely that policy as counsel admitted can change two years ago despite the advances in science that you would think were pointing the other way in the thirty year honor and he has got into this a little bit is that there are two independent grounds for this preliminary injunction the st is a straightforward regulatory claim that the discharges violated the government's regulations on each i v that's just charges and the nd is the claim that the categorical bar on prohibition assumed the categorical bar on deployment by hiv positive individuals is so far divorced from modern medical reality that it's irrational and can't be sustained i'm going to talk st about the regulatory claim your honor because it's a little more straightforward but i would of course like to get into into the equal protection and arbitrary and capricious claims as well your honor the regulatory claim is not a basis for discharging active duty airman it's undisputed that these plaintiffs were in fact just charged because they have h i v there's no dispute about that the government's only argument to the contrary is that well they were also discharged for another reason which is that they're not deployable but your honour's there's that's pretty clearly wrong for a couple of reasons one simply logical and one based on the regulation itself you know logically the restriction on deployment is itself c is identical logically to if a then c i don't see how they get around that problem your honor the nd reason is that the regulation itself if you look at it two four point one says you can't just charge people because they have h i v two four point two says by the way hiv positive people are under ploy for the regulation itself pod to contemplate not deploy ability in the same text that it prohibits their districts so you can't read two four point one two permit deployment based discharges with then you really read it out of existence because by definition they're not deployable and if on the government's reading then by definition they're dischargeable it makes two four point one prohibition on discharge meaning if you're honest i have questions about that not sure i understand i'm going to figure out what i'm trying to understand here is exactly the nature of your claim is that understand the constitutional claims with respect to the regulatory claim is that as a matter of law these service members should never have been discharged or if they were going to be discharged they were entitled to have someone to term and whether or not they should receive a waiver which one is well you're out of the underlying claim is that they should never have been discharged that th discharge from the deployment the discharge claim actually the deployment claim ultimately leads to the discharge claim the discharge regulatory claim is independent of the deployment claim so the point of what the what so what the government said in a kind of post facto analysis when they went back and looked at who had been discharged if you had and they came they the discovered that the people who had been discharged by and large had a deployment tempo rate of twenty percent or higher and the people who were not discharged had a deployment rate of i think it was seventeen percent or lower there's no regulation or anything written anywhere that says that that's what the standard is but they look back at it and said that that's what the standard was so is true they do not discharge everyone who clause you don't have to reach that to reach the violation of regulations claim you could get there fired by either route either one is sufficient to sustain the injunction well your honor as as government counsel explained and as jeff diaz i think asked there is a complicated thicket of regulations that govern these things the governing department of defense regulation seems to be more permissible in terms of deployment of h and the central command regulations are also more restrictive and do you have any position on whether or not that's appropriate for your colleagues and that this is entirely consistent with that they could regulations that the air force was entitled to impose more your client's hiv piece that is that should not subject them to limitations on deployment but even if that's correct the fact that there are non deployable simply because of their hiv status should not lead to their discharge that's correct your honor and that's based on that air force regattas based on a on air force regulation if that regulation didn't exist this might be a different argument but it does and they followed it for twenty odd years by not discharging these people and then they started the regulations take precedence over service regulations in terms of who can and cannot deploy to those areas i think the air force has to abide by central command's regulations and the waiver deterred though the waiver authority for deployment to central command is at the central command level it's this it's the that lead the head surgeon of central command is the ultimate waiver authority for that but of course these remember these airmen were never asked to deploy as judge pointed out the air force m predictive judgment that they wouldn't be allowed to deploy which they made because the people at centcom said we don't give waivers to people with hiv we've never given one and we're highly unlikely to give one which is why the district court found quite unequivocally that the bar on the actions for separation of powers reasons however she found correctly that in this case the basis for these restrictive policies is so irrational that it survives even a highly deferential review and it is clear your honor that whatever degree of deference is required rational basis review won't suffer irrationality that is to say no matter how much deference you owe the military if there's really not a rational basis for the policy it has to fall and that's where the district court found again that's a predictive judgment this is a likelihood of success determination at this point we haven't tried the merits yet but based on the review that the record that she had the district judge looked at it carefully looked at what the government put forward  in defense of its policies and said you haven't given me a rational basis for upholding this policy based on the record that she had at that time the only record that's currently in play she could not identify a rational basis she found that we had a likelihood of success on that claim what on it i don't believe it has any your honor there are certainly cases that say that honorable discharge of itself is not an irreparable harm the irreparable harm claim here is a little narrower because this is a preliminary injunction the purpose this injunction is just to ensure that the district court can retain the ability to to to provide an adequate remedy on the merits because the government has argued that after that plaintiffs would so if the injunction if the plenary injunction goes away the air force is going to discharge and the government takes the position that once they are discharged the courts can't reinstate them the courts don't have the power to affect the remedy that they would seek and therefore the plenary injunction here serve the function of preserving the district court's power to effect the remedy that the pla that is a a an absolute baseline proposition for preliminary injunctive relief so i don't think it matters for this purpose your honor i think the district of course also found that there's another basis for it for the injunction here which is that the combination of the discharge together with a finding by the government or the united states that hiv makes one unfit for national service creates a particularly traumatic kind of stigma that will go with these men for the rest of their lives and she found that that was a sufficient basis for the irreparable harm finding as well can i go back to your position on this the constitutional claim i don't think you dispute the government has a strong not compelling years so that all of what you say in the record is true about it being able to be controlled with proper medication but the fact remains that in a combat environment there are uncertainties that are bound not unique to hiv but other diseases as well and as your colleague wondered out there is a risk and i suppose their point is that there is some risk and particularly given rational review that the military is entitled to make a judgment as to the level of risk that they are willing to accept in that unique combat environment or you may disagree with that you may think that it's you know that the record suggests evidence to the contrary but what about that makes irrational let me put it this way the government's position seems to be that any risk greater than zero justifies any restrictions that they wish to impose or at least at least justifies these restrictions that can't be the right answer you know as the supreme court pointed out in a somewhat related context in bragdon there's nothing in life it doesn't have risk risk exists on a spectrum you know there's a non zero risk that an asteroid will hit this courthouse today it wouldn't be rational for me to plan my day around that possibility right so the question isn't is there any risk the question is what is the risk and is it rationally related to the purpose for which the government as an act of these policies and the district court looked at that question and said these risks are and i think i mean frankly the district court i think was surprised as many people seem to be at what these risks actually are but when she looked at and by the way i want you to finish but i highlighted just one factor obviously the government other is the issue with respect to medication the ability to secure medication the ability the issue of transfusions and the like i mean it's sort of it just wasn't one thing it was this collective constellation of risks that in their judgment they found to be intolerable and again we might disagree with respect to that judgment but i'm just having trouble understanding why that is completely but you've got to break the risks down your honor to understand whether that i mean we take them collectively will you i mean ultimately i think you do have to take them collectively but if the individual pieces add up to something like zero then the policy is irrational and that isn't centrally what the district court found here i mean so there's a couple of different risk as you point out that they identify one is kind of transmission there's really no dispute that sexual transmission is not a risk if you are in treatment the chances of transmitting hiv sexually the record here says effect zero since this happened the c d c came back and said it's literally zero it can't happen so that's off the table the risks they're talking about are essentially kind of combat care risk you know when to contact blood splash things like that so there's evidence in the record on what the risks of those things are and what that record evidence shows your honor is that the risk is merely theoretical at best this is the military has studied these things they did a study of afghan of hiv transmission in the afghanistan theater from two thousand and one to two thousand and seven and this is in the record they identified and keep in mind that's a study of people who by definition are not in treatment right because people who have hiv and are in treatment and military can't deploy so if you're deployed that means you're not in treatment which means you are as infectious as you can be right so in this study what they found was that one million three hundred thousand servicemen deployed to afghanistan from two thousand and one to two thousand and seven they identified exactly forty eight cases sarah positivity of people who didn't have it when they went and had it when they came back zero of those cases involve transmission other than sexual transmission zero and only one of those cases actually even happened during th how long would it be before you took your honor i the answer is that it's not it's sort of unique to the individual but the broad you know broadly it's you know multiple you know four to six weeks to slightly more than that and again once you and once you get from undetectible to detectable the transmission risk is still very very low transmission risk doesn't reach it sort of apogee until you've been untreated for a very long time like a year plus and even and again as that study kind of goes back to show one of the real misapprehensions about hiv in this context is that even when it's not in treatment hiv is actually a pretty hard virus to transmit you know the very riskiest sexual behavior in untreated individuals has an incidence of transmission of one point three percent about one percent if you're on treatment magnitudes below that you know the c d c now says it's effectively zero so you know these regulations were adopted in a time when people were terrified of this virus right they were adopted at a time when people viewed this as a highly transmissible death sentence it hasn't been that for a very long time and the army's me the military's regulations are going in the wrong direction on this they're no longer justified by the science that originally justified with respect to this  whether that violates the it is our position your honor because what the what the regulations contemplate is as you say an individualized determination and the question isn't just do you have each i v it's where exactly are you deploying to one of the medical facilities that are available there what are the conditions on the ground you know there's a variety of things that they are supposed to take into into contact incineration when they make these determinations and am not clear that centcom makes them anyway but here centcom didn't even get the chance because as you point out the air force made a predictive judgment about how that would go where so twice removed from any possible individual eyes determination i mean to use the example that mr yellin used you know if one of our clients you know had a specialty that was you know disarming nuclear weapons or something like that he would be out of the air force and they wouldn't look into that they would say if you look at his discharge sheet the box where it says reason for discharge it says hiv in big letters that's what it says they didn't ask whether he could do anything important i understood him to say that in fact is the relevant factor in deciding whether or not the stores they're all he said it would be but there's no evidence that they considered anything like that in these cases if you look at the letters that the people got in this question there's there's six of them in evidence they're almost identical i mean down to the phrasing a lot of them came out on the same day there's just no evidence that they gave any degree of individualized consideration here thank you you know when you have a   st even if the court has any question about the likelihood of success on the merits plaintiffs in no way engaged our demonstration in our reply brief that if plaintiffs ultimately prevail on the merits they would be placed back in the identical position they were in before they were deployed that simply means that there is no cognizable irreparable injury that they would suffer so plaintiffs did not address that at all they did not dispute our  demonstration in fact in their response brief they don't even claim that it's impossible that they would be restored to the position they were in before they were discharged they say that it's our position that they couldn't be restored and that's simply not true for the reasons that we provide in our response brief your honor we were stipulating to exactly what we say in our reply brief which is they will be placed in exactly the position that they were in before they were discharged they are their explanation is a bit more complicated because their terms of enlistment have expired but they would be treated like any individual whose term of enlistment had not expired and had  sorry had expired but had not been discharged their hiv status would not be a consideration in their reenlistment if this if they ultimately prevail on the merits the nd point i'd like to how does that affect this case some trouble understanding to receive an injunction one has to an essential part of the demonstration is irreparable injury this shows that plaintiffs have not identified any irreparable injury because they would be put back in the place that they were before the discharge occurred and they would be treated as if they had not been discharged this is in our response brief in some detail they would not be deployable but they would be well  it would depend on what the ultimate holding on the merits were i somewhat doubt i'm sorry or i can't predict what the courts would ultimately say i can't predict what the response would be of the precise argument we did not make because the plaintiffs for the st time in their response brief said that it is impossible that they said that we said that it is impossible for them to be restored in the place they were they purport to describe our position as saying that the courts have no authority to enlist an individual and while that's true it's only part of the story because for example if if an individual commits a crime between the term of the expiration of their enlistment and  reconsideration that would be a basis for not be enlisting them but our position is as detailed in the response brief that if they prevail on the merits they would be in exactly the same condition that they were in before they were discharged and their hiv status would not be a factor in considering their reenlistment if i might get to the other two points i'd like to make counsel pointed to evidence in the record and he suggested that this shows that hiv is not transmittable that there is virtually no risk in the combat area this is with respect to counsel a mischaracterization of the evidence individuals who acquired hiv during deployment are different than those who are sent over who are deployed individuals who are diagnosed with hiv are immediately evacuated they have untreated hiv and they are evacuated back so that they could receive treatment these are not individuals who are in the field who are subject to  combat situations where there could be wound to wound contact and the other considerations that i had discussed before in addition because the military does not deploy hiv positive personnel to centcom there is respect that's apples and oranges for the following reason no i understand your honor your comparison your honor is asking about i'd like to suggest or apples and oranges when a person is diagnosed on deployment he or she is immedia evacuated a person who is already diagnosed with hiv there is a decision made whether or not the risks of deployment outweigh the benefit that to the military and for all the reasons we've suggests that their force does not permit dismiss discharge on stereo positivity alone but then says that discharge sorry that deployment is categorically barred that's not correct that's not what the regulation says mr eaton sort of differentiated these claims he suggested well with two separate claims one is the boy ability claim we think we prevail on that but even if we don't prevail on that the air force instruction that you just read indicates that you can't this charge somebody simply on the basis of zero positivity so what about that and that's correct correct you're on the air force does not let me give an analogy if i might a pilot who acquires incurable air sickness and can no longer fly if that pilot is just charged the pilot does not discharge simply because the pilot has air sickness it's the air sickness in combination with the inability to perform the duty that is the ability