Case: 1:18-cv-1565 As of: 07/03/2020 03:46 PM EDT 1 of 23
U.S. District Court Eastern District of Virginia − (Alexandria) CIVIL DOCKET FOR CASE #: 1:18−cv−01565−LMB−IDD

Roe et al v. Defense et al Assigned to: District Judge Leonie M. Brinkema Referred to: Magistrate Judge Ivan D. Davis Case in other court: 4th Circuit, 19−01410 Cause: 28:1331 Federal Question
Plaintiff

Date Filed: 12/19/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Richard Roe

represented by John Webster Hunter Harding Winston & Strawn LLP (DC) 1901 L Street, NW Washington, DC 20036 202−282−5000 Fax: 202−282−5100 Email: Jwharding@winston.com ATTORNEY TO BE NOTICED

Laura Joy Cooley Winston & Strawn LLP (DC) 1700 K St NW Washington, DC 20006 202−282−5000 Fax: 202−282−5100 Email: lcooley@winston.com TERMINATED: 08/28/2019 ATTORNEY TO BE NOTICED

Andrew Ryan Sommer Greenberg Traurig LLP (McLean) 1750 Tysons Blvd Suite 1000 McLean, VA 22102 703−749−1370 Email: sommera@gtlaw.com ATTORNEY TO BE NOTICED

Plaintiff Victor Voe

represented by John Webster Hunter Harding (See above for address) ATTORNEY TO BE NOTICED

Laura Joy Cooley (See above for address) TERMINATED: 08/28/2019 ATTORNEY TO BE NOTICED

Andrew Ryan Sommer (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
OutServe−SLDN, Inc. TERMINATED: 03/11/2020

represented by John Webster Hunter Harding (See above for address) ATTORNEY TO BE NOTICED

Laura Joy Cooley (See above for address) TERMINATED: 08/28/2019 ATTORNEY TO BE NOTICED

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Plaintiff The Modern Military Association of America
Defendant United States Department of Defense
Defendant Patrick M. Shanahan Acting Secretary of Defense TERMINATED: 07/22/2019 Defendant Heather A. Wilson in her official capacity as Secretary of the Air Force TERMINATED: 07/22/2019 Defendant Richard V. Spencer Acting Secretary of Defense
Defendant

Andrew Ryan Sommer (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Ryan Sommer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Webster Hunter Harding (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis Carl Barghaan , Jr. United States Attorney's Office 2100 Jamieson Ave Alexandria, VA 22314 (703)299−3700 Email: dennis.barghaan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Trent McCotter United States Attorney's Office (Alexandria) 2100 Jamieson Ave Alexandria, VA 22314 703−299−3845 Email: trent.mccotter@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by R. Trent McCotter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by R. Trent McCotter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis Carl Barghaan , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Trent McCotter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

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Matthew Donovan Acting Secretary of the Air Force

Dennis Carl Barghaan , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Trent McCotter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/19/2018 12/19/2018 12/19/2018 12/19/2018 12/19/2018 12/19/2018 12/19/2018 12/19/2018
12/19/2018
12/19/2018
12/19/2018 12/19/2018 12/19/2018 12/19/2018

# Docket Text
1 Complaint ( Filing fee $ 400, receipt number 0422−6414179.), filed by Richard Roe, OutServe−SLDN, Inc., Victor Voe. (Attachments: # 1 Civil Cover Sheet)(Sommer, Andrew) (Entered: 12/19/2018)
2 NOTICE of Appearance by Andrew Ryan Sommer on behalf of OutServe−SLDN, Inc., Richard Roe, Victor Voe (Sommer, Andrew) (Entered: 12/19/2018)
3 Financial Interest Disclosure Statement (Local Rule 7.1) by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)
4 Proposed Summons as to Acting Attorney General of the United States Matthew Whitaker by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)
5 Proposed Summons as to G. Zachary Terwilliger US Attorney for Eastern District of Virginia by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)
6 Proposed Summons as to James Mattis Secretary of Defense by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)
7 Proposed Summons as to Heather A. Wilson, Secretary of the Air Force by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)
8 MOTION to Proceed Under Pseudonyms and for All of Plaintiff Roe's and Plaintiff Voe's Identifying Information to be Redacted from Documents filed in the Public Record by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 12/19/2018)
9 Memorandum in Support re 8 MOTION to Proceed Under Pseudonyms and for All of Plaintiff Roe's and Plaintiff Voe's Identifying Information to be Redacted from Documents filed in the Public Record filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)
10 Notice of Hearing Date set for 1/4/2019 re 8 MOTION to Proceed Under Pseudonyms and for All of Plaintiff Roe's and Plaintiff Voe's Identifying Information to be Redacted from Documents filed in the Public Record (Sommer, Andrew) (Entered: 12/19/2018)
Initial Case Assignment to District Judge Leonie M. Brinkema and Magistrate Judge Ivan D. Davis. (acha, ) (Entered: 12/19/2018)
11 Proposed Summons as to the U.S. Department of Defense by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)
12 Motion to appear Pro Hac Vice by Julie Anne Bauer and Certification of Local Counsel Andrew R. Sommer by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)
13 Motion to appear Pro Hac Vice by Kara Nicole Ingelhart and Certification of Local Counsel Andrew R. Sommer Filing fee $ 75, receipt number 0422−6414747. by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)

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12/19/2018
12/19/2018
12/19/2018
12/19/2018
12/20/2018
12/21/2018 12/21/2018 12/21/2018 12/21/2018 12/21/2018 12/21/2018
01/02/2019 01/02/2019 01/02/2019 01/02/2019 01/02/2019 01/04/2019

14 Motion to appear Pro Hac Vice by Lauren Gailey and Certification of Local Counsel Andrew R. Sommer Filing fee $ 75, receipt number 0422−6414754. by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)
15 Motion to appear Pro Hac Vice by Peter Edward Perkowski and Certification of Local Counsel Andrew R. Sommer Filing fee $ 75, receipt number 0422−6414767. by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)
16 Motion to appear Pro Hac Vice by Scott Schoettes and Certification of Local Counsel Andrew R. Sommer Filing fee $ 75, receipt number 0422−6414790. by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)
17 Summons Issued as to James N. Mattis, United States Department of Defense, Heather A. Wilson, U.S. Attorney and U.S. Attorney General NOTICE TO ATTORNEY: Print out two electroncially issued summons and one copy of the attachments for each defendant to be served with the complaint. (Attachments: # 1 Notice to Attorney)(acha, ) (Entered: 12/19/2018)
Set Deadlines as to 8 MOTION to Proceed Under Pseudonyms and for All of Plaintiff Roe's and Plaintiff Voe's Identifying Information to be Redacted from Documents filed in the Public Record . Motion Hearing set for 1/4/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 12/20/2018)
18 ORDER granting 12 Motion for Pro hac vice for Julie Anne Bauer. Signed by District Judge Leonie M. Brinkema on 12/21/2018. (acha, ) (Entered: 12/21/2018)
19 ORDER granting 13 Motion for Pro hac vice for Kara Nicole Ingelhart. Signed by District Judge Leonie M. Brinkema on 12/21/2018. (acha, ) (Entered: 12/21/2018)
20 ORDER granting 14 Motion for Pro hac vice for Lauren Gailey. Signed by District Judge Leonie M. Brinkema on 12/21/2018. (acha, ) (Entered: 12/21/2018)
21 ORDER granting 15 Motion for Pro hac vice for Peter Edward Perkowski. Signed by District Judge Leonie M. Brinkema on 12/21/2018. (acha, ) (Entered: 12/21/2018)
22 ORDER granting 16 Motion for Pro hac vice for Scott Schoettes. Signed by District Judge Leonie M. Brinkema on 12/21/2018. (acha, ) (Entered: 12/21/2018)
23 ORDER: Before the Court is plaintiffs' Motion to Proceed Under Pseudonyms and for All of Plaintiff Roe's and Plaintiff Voe's Identifying Information to Be Redacted from Documents Filed in the Public Record [Dkt. No. 8]. The Court has considered plaintiffs' submission and finds it is well made. Accordingly, the Motion is GRANTED, and it is hereby ORDERED that plaintiffs shall be entitled to proceed pseudonymously and to have any personal identifying information redacted from publicly filed documents.Signed by District Judge Leonie M. Brinkema on 12/21/18. (yguy) (Entered: 12/21/2018)
24 AFFIDAVIT of Service as to Matthew Whitaker by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/02/2019)
25 AFFIDAVIT of Service as to Department of Defense by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/02/2019)
26 AFFIDAVIT of Service as to Heather A. Wilson by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/02/2019)
27 AFFIDAVIT of Service as to James Mattis by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/02/2019)
28 AFFIDAVIT of Service as to G. Zachary Terwilliger by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/02/2019)
29 Joint MOTION to Modify the Scheduling Order in the Harrison Case and for Entry of Briefing Schedule and Scheduling Order in the Roe Case by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/04/2019)

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01/04/2019 01/04/2019 01/04/2019
01/04/2019 01/11/2019 01/11/2019 01/11/2019 01/11/2019 01/11/2019 01/11/2019 01/11/2019 01/11/2019
01/11/2019 01/15/2019 01/18/2019

30 Memorandum in Support re 29 Joint MOTION to Modify the Scheduling Order in the Harrison Case and for Entry of Briefing Schedule and Scheduling Order in the Roe Case filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 01/04/2019)
31 NOTICE of Appearance by R. Trent McCotter on behalf of James N. Mattis, United States Department of Defense, Heather A. Wilson (McCotter, R.) (Entered: 01/04/2019)
32 ORDER− It is hereby ORDERED that the joint motion is GRANTED with the following exceptions: the cut−off date for all discovery is Friday, May 10, 2019 and the final pretrial for both civil actions will be held at 10:00 a.m. on Thursday, May 16, 2019, and it is further ORDERED that the parties Proposed Consolidated Discovery Schedule is approved and shall control discovery to the extent of its application unless further modified by the Court. Signed by District Judge Leonie M. Brinkema on 1/4/2019. (See order for further details). (acha, ). (Entered: 01/04/2019)
Set Deadlines/Hearings Discovery due by 5/10/2019. Final Pretrial Conference set for 5/16/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (acha, ) (Entered: 01/04/2019)
33 MOTION for Preliminary Injunction by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/11/2019)
34 Memorandum in Support re 33 MOTION for Preliminary Injunction filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 01/11/2019)
35 Notice of Hearing Date set for February 15, 2019 re 33 MOTION for Preliminary Injunction (Sommer, Andrew) (Entered: 01/11/2019)
36 MOTION to Seal Exhibits A & B and Attachments by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 01/11/2019)
37 Notice of Filing Sealing Motion LCvR5(C) by OutServe−SLDN, Inc., Richard Roe, Victor Voe re 36 MOTION to Seal Exhibits A & B and Attachments (Sommer, Andrew) (Entered: 01/11/2019)
38 Sealed Attachment/Exhibit(s) re 36 MOTION to Seal Exhibits A & B and Attachments. (Attachments: # 1 Exhibit A1, # 2 Exhibit A2, # 3 Exhibit A3, # 4 Exhibit A4, # 5 Exhibit A5, # 6 Exhibit A6, # 7 Exhibit B, # 8 Exhibit B1, # 9 Exhibit B2, # 10 Exhibit B3, # 11 Exhibit B4)(Sommer, Andrew) (Entered: 01/11/2019)
39 Memorandum in Support re 36 MOTION to Seal Exhibits A & B and Attachments filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/11/2019)
40 EXHIBIT C−J for Memorandum in Support of Preliminary Injunction by OutServe−SLDN, Inc., Richard Roe, Victor Voe.. (Attachments: # 1 Exhibit C1, # 2 Exhibit C2, # 3 Exhibit C3, # 4 Exhibit C4, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J)(Sommer, Andrew) (Entered: 01/11/2019)
41 CERTIFICATE of Service as to Sealed Exhibits A & B and attachments by Andrew Ryan Sommer on behalf of OutServe−SLDN, Inc., Richard Roe, Victor Voe (Sommer, Andrew) (Entered: 01/11/2019)
Set Deadlines as to 33 MOTION for Preliminary Injunction . Motion Hearing set for 2/15/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 01/15/2019)
42 ORDER− It is hereby ORDERED that plaintiff's 36 motion is GRANTED IN PART, and that Exhibits A and B in support of plaintiff's motion for preliminary injunction may remain filed under seal; and it is further ORDERED that plaintiff's publicly file redacted versions of every document filed under seal. Signed by District Judge Leonie M. Brinkema on 1/18/2019. (See order for further details). (acha, ) (Entered: 01/18/2019)

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01/18/2019
01/22/2019
01/22/2019 01/22/2019 01/25/2019
01/25/2019 01/25/2019 01/25/2019
01/25/2019 01/25/2019 01/25/2019 01/25/2019 01/25/2019 01/25/2019 01/25/2019 01/25/2019 01/28/2019 01/28/2019
02/01/2019

43 MOTION For Entry of Agreed−Upon Protective Order and Agreed−Upon Electronically−Stored Information Order by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Exhibit A − Proposed Protective Order, # 2 Exhibit B − Proposed ESI Order)(Sommer, Andrew) (Entered: 01/18/2019)
44 Redacted version of Exhibits A and B and Supporting Attachments to 34 Memorandum in Support of Plaintiffs Motion for Preliminary Injunction. (Attachments: # 1 Exhibit A1, # 2 Exhibit A2, # 3 Exhibit A3, # 4 Exhibit A4, # 5 Exhibit A5, # 6 Exhibit A6, # 7 Exhibit B, # 8 Exhibit B1, # 9 Exhibit B2, # 10 Exhibit B3, # 11 Exhibit B4)(Sommer, Andrew) (Entered: 01/22/2019)
45 ORDER granting 43 Motion for Entry of Agreed−Upon Protective Order Signed by Magistrate Judge Ivan D. Davis on 1/22/2019. (See order for further details). (acha, ) (Entered: 01/22/2019)
46 ORDER GRANTING 43 MOTION For Agreed−Upon Electronically−Stored Information Order. Signed by Magistrate Judge Ivan D. Davis on 1/22/2019. (See order for further details). (acha, ) (Entered: 01/22/2019)
47 Memorandum in Opposition re 33 MOTION for Preliminary Injunction filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Appendix Index, # 2 Appendix Public Part 1, # 3 Appendix Public Part 2)(McCotter, R.) (Entered: 01/25/2019)
48 MOTION to Dismiss for Lack of Jurisdiction by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 01/25/2019)
49 MOTION to Dismiss for Failure to State a Claim by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 01/25/2019)
50 Memorandum in Support re 49 MOTION to Dismiss for Failure to State a Claim , 48 MOTION to Dismiss for Lack of Jurisdiction filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Appendix Index, # 2 Appendix Public Part 1, # 3 Appendix Public Part 2)(McCotter, R.) (Entered: 01/25/2019)
51 Notice of Hearing Date set for February 15, 2019 re 49 MOTION to Dismiss for Failure to State a Claim , 48 MOTION to Dismiss for Lack of Jurisdiction (McCotter, R.) (Entered: 01/25/2019)
52 MOTION to Seal by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 01/25/2019)
53 Notice of Under Seal Filing LCvR5 (B) by James N. Mattis, United States Department of Defense, Heather A. Wilson re 52 MOTION to Seal (McCotter, R.) (Entered: 01/25/2019)
54 Memorandum in Support re 52 MOTION to Seal filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 01/25/2019)
55 Sealed Appendix Part 1. (McCotter, R.) (Entered: 01/25/2019)
56 Sealed Appendix Part 2. (McCotter, R.) (Entered: 01/25/2019)
57 Sealed Appendix Part 3. (McCotter, R.) (Entered: 01/25/2019)
58 Sealed Appendix Part 4. (McCotter, R.) (Entered: 01/25/2019)
59 ORDER granting 52 Motion to Seal. Signed by District Judge Leonie M. Brinkema on 1/28/2019. (See order for further details). (acha, ) (Entered: 01/28/2019)
Set Deadlines as to 49 MOTION to Dismiss for Failure to State a Claim , 48 MOTION to Dismiss for Lack of Jurisdiction . Motion Hearing set for 2/15/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 01/28/2019)
60 Opposition to the Motion to Dismiss filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit C1, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(Sommer, Andrew)

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02/01/2019 02/01/2019 02/01/2019 02/01/2019 02/01/2019 02/01/2019 02/01/2019 02/01/2019 02/04/2019 02/08/2019 02/15/2019
02/15/2019 02/15/2019

(Entered: 02/01/2019)
61 Reply to Opposition to Preliminary Injunction filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 02/01/2019)
62 MOTION to Seal Exhibits A & B to Plaintiffs' Opposition to the Motion to Dismiss and Reply in Support of their Motion for a Preliminary Injunction by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 02/01/2019)
63 Notice of Filing Sealing Motion LCvR5(C) by OutServe−SLDN, Inc., Richard Roe, Victor Voe re 62 MOTION to Seal Exhibits A & B to Plaintiffs' Opposition to the Motion to Dismiss and Reply in Support of their Motion for a Preliminary Injunction (Sommer, Andrew) (Entered: 02/01/2019)
64 Sealed Attachment/Exhibit(s) re 62 MOTION to Seal Exhibits A & B to Plaintiffs' Opposition to the Motion to Dismiss and Reply in Support of their Motion for a Preliminary Injunction. (Attachments: # 1 Exhibit B)(Sommer, Andrew) (Entered: 02/01/2019)
65 Memorandum in Support re 62 MOTION to Seal Exhibits A & B to Plaintiffs' Opposition to the Motion to Dismiss and Reply in Support of their Motion for a Preliminary Injunction filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 02/01/2019)
66 CERTIFICATE of Service as to Sealed Exhibits A & B by Andrew Ryan Sommer on behalf of OutServe−SLDN, Inc., Richard Roe, Victor Voe (Sommer, Andrew) (Entered: 02/01/2019)
67 NOTICE by James N. Mattis, United States Department of Defense, Heather A. Wilson FILING OF REDACTED ADMINISTRATIVE RECORD (Attachments: # 1 Exhibit AR1, # 2 Exhibit AR2, # 3 Exhibit AR3, # 4 Exhibit AR4)(McCotter, R.) (Entered: 02/01/2019)
68 NOTICE of Appearance by Laura Joy Cooley on behalf of OutServe−SLDN, Inc., Richard Roe, Victor Voe (Cooley, Laura) (Entered: 02/01/2019)
69 ORDER granting 62 Motion to Seal Exhibits A & B to Plaintiffs' Opposition to the Motion to Dismiss and Reply in Support of their Motion for a Preliminary Injunction. Signed by District Judge Leonie M. Brinkema on 2/4/2019. (see Order for details) (dest, ) (Entered: 02/04/2019)
70 REPLY to Response to Motion re 49 MOTION to Dismiss for Failure to State a Claim , 48 MOTION to Dismiss for Lack of Jurisdiction filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 02/08/2019)
71 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing held on 2/15/2019. Appearances of counsel. Motions are argued. Pltfs' 33 MOTION for Preliminary Injunction is GRANTED IN PART AND DENIED IN PART. Defts' 48 MOTION to Dismiss for Lack of Jurisdiction and 49 MOTION to Dismiss for Failure to State a Claim are DENIED. (memorandum opinion and order to follow) (Court Reporter A. Thomson.)(yguy) (Entered: 02/15/2019)
72 MEMORANDUM OPINION: Accordingly, plaintiffs' motion for a preliminary injunction will be granted in part and denied in part, and defendants' motion to dismiss denied, by an appropriate Order to be issued with thisMemorandum Opinion. Signed by District Judge Leonie M. Brinkema on 2/15/19. (yguy) (Entered: 02/15/2019)
73 ORDER: For the reasons stated in the accompanying Memorandum Opinion, defendants' Motion to Dismiss [Dkt. Nos. 48−49] is DENIED, plaintiffs' Motion for a Preliminary Injunction [Dkt. No. 33] is GRANTED IN PART and DENIED IN PART, and it is hereby ORDERED, ADJUDGED, and DECREED that defendants be and are ENJOINED from separating or discharging from military service Richard Roe, Victor Voe, 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 United States Central Command ("CENTCOM" ) area due to their HIV−positive status. Signed by District Judge Leonie M. Brinkema on 2/15/19. (yguy) (Entered:

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02/15/2019 02/15/2019 02/15/2019 02/19/2019 02/19/2019 02/21/2019
03/01/2019 03/01/2019 03/01/2019 03/01/2019 03/01/2019 03/01/2019 03/06/2019 03/06/2019 03/06/2019 03/07/2019

02/15/2019)
74 MOTION to Amend/Correct Preliminary Injunction by OutServe−SLDN, Inc.. (Sommer, Andrew) (Entered: 02/15/2019)
75 Memorandum in Support re 74 MOTION to Amend/Correct Preliminary Injunction filed by OutServe−SLDN, Inc.. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 02/15/2019)
76 NOTICE by James N. Mattis, United States Department of Defense, Heather A. Wilson FORTHCOMING RESPONSE (McCotter, R.) (Entered: 02/15/2019)
77 Memorandum in Opposition re 74 MOTION to Amend/Correct Preliminary Injunction filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 02/19/2019)
78 ORDERED that OutServe's Motion to Amend Preliminary Injunction [Dkt. No. 74] be and is DENIED WITHOUT PREJUDICE. (see order for details). Signed by District Judge Leonie M. Brinkema on 2/19/19. (yguy) (Entered: 02/19/2019)
79 TRANSCRIPT of proceedings held on 2/15/2019, before Judge Leonie M. Brinkema, Court Reporter Anneliese Thomson, Telephone number 703−299−8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 3/25/2019. Redacted Transcript Deadline set for 4/23/2019. Release of Transcript Restriction set for 5/22/2019.(thomson, anneliese) (Entered: 02/21/2019)
80 NOTICE by James N. Mattis, United States Department of Defense, Heather A. Wilson FILING OF SUPPLEMENTAL ADMINISTRATIVE RECORD (McCotter, R.) (Entered: 03/01/2019)
81 MOTION TO FILE UNDER SEAL by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 03/01/2019)
82 Memorandum in Support re 81 MOTION TO FILE UNDER SEAL filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Exhibit Declaration)(McCotter, R.) (Entered: 03/01/2019)
83 Notice of Under Seal Filing LCvR5 (B) by James N. Mattis, United States Department of Defense, Heather A. Wilson (McCotter, R.) (Entered: 03/01/2019)
84 Sealed Document SUPPLEMENTAL ADMINISTRATIVE RECORD. (McCotter, R.) (Entered: 03/01/2019)
85 ORDER granting 81 MOTION TO FILE UNDER SEAL SUPPLEMENTAL ADMINISTRATIVE RECORD. Signed by District Judge Leonie M. Brinkema on 3/1/2019. (See order for further details). (acha, ) (Entered: 03/01/2019)
86 NOTICE by James N. Mattis, United States Department of Defense, Heather A. Wilson re 80 NOTICE FILING OF REDACTED SUPPLEMENTAL ADMINISTRATIVE RECORD (McCotter, R.) (Entered: 03/06/2019)
87 Consent MOTION for Extension of Time to File Answer by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 03/06/2019)
88 Memorandum in Support re 87 Consent MOTION for Extension of Time to File Answer filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 03/06/2019)
89 ORDER granting 87 Motion for Extension of Time to Answer. Defendants may file and Answer to Plaintiffs' Complaint no later than March 8, 2019. Signed by District

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03/08/2019 03/15/2019 03/15/2019 03/15/2019 03/20/2019 03/22/2019 03/22/2019 03/22/2019 03/25/2019 03/25/2019 03/27/2019
03/28/2019 03/29/2019
03/29/2019

Judge Leonie M. Brinkema on 3/7/2019. (dvanm, ) (Entered: 03/07/2019)
90 ANSWER to Complaint by James N. Mattis, United States Department of Defense, Heather A. Wilson.(McCotter, R.) (Entered: 03/08/2019)
91 Joint MOTION to Amend/Correct the Scheduling Order for the Limited Purpose of Taking Several Depositions Out of Time by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 03/15/2019)
92 Memorandum in Support re 91 Joint MOTION to Amend/Correct the Scheduling Order for the Limited Purpose of Taking Several Depositions Out of Time filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 03/15/2019)
93 ORDER granting 91 Joint MOTION to Amend/Correct the Scheduling Order for the Limited Purpose of Taking Several Depositions Out of Time by OutServe−SLDN, Inc., Signed by Magistrate Judge Ivan D. Davis on 3/15/2019. (See order for further details).(acha, ) (Entered: 03/15/2019)
94 NOTICE of Appearance by John Webster Hunter Harding on behalf of OutServe−SLDN, Inc., Richard Roe, Victor Voe (Harding, John) (Entered: 03/20/2019)
95 MOTION to Compel Documents and Information Withheld on the Basis of Deliberative Process Privilege by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 03/22/2019)
96 Memorandum in Support re 95 MOTION to Compel Documents and Information Withheld on the Basis of Deliberative Process Privilege filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Proposed Order)(Sommer, Andrew) (Entered: 03/22/2019)
97 Notice of Hearing Date set for March 29, 2019 re 95 MOTION to Compel Documents and Information Withheld on the Basis of Deliberative Process Privilege (Sommer, Andrew) (Entered: 03/22/2019)
Set Deadlines as to 95 MOTION to Compel Documents and Information Withheld on the Basis of Deliberative Process Privilege. Motion Hearing set for 3/29/2019 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (clar, ) (Entered: 03/25/2019)
MOTIONS REFERRED to Magistrate Judge: Davis. 95 MOTION to Compel Documents and Information Withheld on the Basis of Deliberative Process Privilege (clar, ) (Entered: 03/25/2019)
98 Opposition to 95 MOTION to Compel Documents and Information Withheld on the Basis of Deliberative Process Privilege filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Exhibit Declaration, # 2 Exhibit Privilege Log, # 3 Exhibit Privilege Log)(McCotter, Richard) (Entered: 03/27/2019)
99 REPLY to Response to Motion re 95 MOTION to Compel Documents and Information Withheld on the Basis of Deliberative Process Privilege filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 03/28/2019)
100 Minute Entry for proceedings held before Magistrate Judge Ivan D. Davis:Motion Hearing held on 3/29/2019 re 95 MOTION to Compel Documents and Information Withheld on the Basis of Deliberative Process Privilege filed by Richard Roe, Victor Voe, OutServe−SLDN, Inc. Appearance of Counsel for the Plaintiff and Defendant. Motion argued and held in abeyance. Order to follow. (Tape #FTR.)(lgue, ) (Entered: 03/29/2019)
101 ORDER − FOR REASONS stated from the bench and in accord with specific rulings and instructions thereto, it is hereby ORDERED that Plaintiffs' Motion to Compel Production of Documents 95 is HELD IN ABEYANCE pending review of the objections in the companion case Harrison et al. v. Shanahan el al., 18−cv−641. Signed by Magistrate Judge Ivan D. Davis on 03/29/2019. (lgue, ) (Entered: 03/29/2019)

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04/03/2019 04/04/2019 04/05/2019 04/05/2019 04/05/2019 04/05/2019 04/05/2019 04/05/2019 04/08/2019 04/08/2019
04/16/2019 04/17/2019 04/18/2019 05/02/2019 05/02/2019 05/03/2019

102 Motion to appear Pro Hac Vice by Alexandra Jane Hemmings and Certification of Local Counsel John W.H. Harding Filing fee $ 75, receipt number 0422−6571827. by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 04/03/2019)
103 ORDER granting 102 Motion for Pro hac vice for Alexandra Jane Hemmings. Signed by District Judge Leonie M. Brinkema on 4/4/2019. (acha, ) (Entered: 04/04/2019)
104 Consent MOTION to Amend/Correct 73 Order,, by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, Richard) (Entered: 04/05/2019)
105 Memorandum in Support re 104 Consent MOTION to Amend/Correct 73 Order,, filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Exhibit Menendez Declaration)(McCotter, Richard) (Entered: 04/05/2019)
106 MOTION to Seal by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, Richard) (Entered: 04/05/2019)
107 Memorandum in Support re 106 MOTION to Seal filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, Richard) (Entered: 04/05/2019)
108 Notice of Under Seal Filing LCvR5 (B) by James N. Mattis, United States Department of Defense, Heather A. Wilson (McCotter, Richard) (Entered: 04/05/2019)
109 Sealed Attachment/Exhibit(s). (McCotter, Richard) (Entered: 04/05/2019)
110 ORDER granting 106 Motion to Seal. The Court ORDERS that Exhibits A−D to the Declaration of Col. Damon Menendez ("Menendez Decl."), filed simultaneously with Defendants' Motion to Modify the Preliminary Injunction, be filed under seal. Signed by District Judge Leonie M. Brinkema on 4/8/2019. (dest, ) (Entered: 04/08/2019)
111 ORDER granting 104 Motion to Amend/Correct. The Court hereby GRANTS Defendants' Motion, and AMENDS its February 15, 2019 Order, ECF No. 73, to state that it is "ORDERED, ADJUDGED, and DECREED that defendants be and are ENJOINED from separating or discharging from military service Richard Roe, Victor Voe, and any other similarly situated active duty member of the Air Force. Signed by District Judge Leonie M. Brinkema on 4/8/2019. (see Order for further details) (dest, ) (Entered: 04/08/2019)
112 NOTICE OF APPEAL as to 73 Order,, 111 Order on Motion to Amend/Correct, 72 Memorandum Opinion, by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, Richard) (Entered: 04/16/2019)
113 Transmission of Notice of Appeal to US Court of Appeals re 112 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (acha, ) (Entered: 04/17/2019)
114 USCA Case Number 19−1410 4th Circuit, Case Manager J. Neal for 112 Notice of Appeal filed by United States Department of Defense, James N. Mattis, Heather A. Wilson. (rban, ) (Entered: 04/18/2019)
115 Joint MOTION to Modify the Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 05/02/2019)
116 Memorandum in Support re 115 Joint MOTION to Modify the Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 05/02/2019)
Notice of Correction re 115 Joint MOTION to Modify the Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time . The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument.(acha, ) (Entered: 05/03/2019)

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05/03/2019
05/03/2019 05/03/2019
05/03/2019 05/03/2019 05/03/2019 05/03/2019 05/03/2019 05/06/2019 05/06/2019 05/13/2019 05/14/2019 05/14/2019 05/14/2019
05/16/2019
05/17/2019 05/17/2019

117 ORDER granting 115 Joint MOTION to Modify the Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time by OutServe−SLDN, Inc., Richard Roe, Victor Voe. Signed by Magistrate Judge Ivan D. Davis on 5/3/2019. (See order for further details).(acha, ) (Entered: 05/03/2019)
118 MOTION to Dismiss for Lack of Jurisdiction IN PART by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 05/03/2019)
119 Memorandum in Support re 118 MOTION to Dismiss for Lack of Jurisdiction IN PART filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit E, # 4 Exhibit N, # 5 Exhibit O, # 6 Exhibit Q, # 7 Exhibit R)(McCotter, R.) (Entered: 05/03/2019)
120 MOTION to Seal by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 05/03/2019)
121 Memorandum in Support re 120 MOTION to Seal filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 05/03/2019)
122 Notice of Under Seal Filing LCvR5 (B) by James N. Mattis, United States Department of Defense, Heather A. Wilson (McCotter, R.) (Entered: 05/03/2019)
123 Sealed Attachment/Exhibit(s) FOR PARTIAL MOTION TO DISMISS. (McCotter, R.) (Entered: 05/03/2019)
124 Notice of Hearing Date set for MAY 31, 2019 re 118 MOTION to Dismiss for Lack of Jurisdiction IN PART (McCotter, R.) (Entered: 05/03/2019)
125 ORDER granting 120 MOTION to Seal by James N. Mattis, United States Department of Defense, Heather A. Wilson. Signed by District Judge Leonie M. Brinkema on 5/6/2019. (See order for further details). (acha, ) (Entered: 05/06/2019)
Set Deadlines as to 118 MOTION to Dismiss for Lack of Jurisdiction IN PART. Motion Hearing set for 5/31/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 05/06/2019)
Set/Reset Hearings: Final Pretrial Conference reset for 5/16/2019 at 09:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (yguy) (Entered: 05/13/2019)
126 Joint MOTION to Enlarge Time to File Pretrial Disclosures by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 05/14/2019)
127 Memorandum in Support re 126 Joint MOTION to Enlarge Time to File Pretrial Disclosures filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 05/14/2019)
128 ORDERED that the 126 Parties' Joint Motion to Enlarge Time to File Pretrial Disclosures is granted, and that the Parties shall file the pretrial disclosures required by the scheduling order entered in Harrison v. Shanahan see Dkt. 64 on or before May 30,2019. Signed by District Judge Leonie M. Brinkema on 05/14/2019. (dvanm, ) (Entered: 05/14/2019)
129 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Final Pretrial Conference held on 5/16/2019. Appearances of counsel. Court advised of case status. Deadline to file witness/exhibits list previously extended to May 30th. Trial estimate − 1 week. Bench Trial set for 9/9/2019 at 09:30 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (Court Reporter A. Thomson.)(yguy) (Entered: 05/16/2019)
130 NOTICE by James N. Mattis, United States Department of Defense, Heather A. Wilson re 118 MOTION to Dismiss for Lack of Jurisdiction IN PART Filing of Redacted Exhibits A, D, F−M, P (McCotter, R.) (Entered: 05/17/2019)
131 Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe−SLDN filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Exhibit A, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E)(Harding, John) (Entered: 05/17/2019)

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05/17/2019 05/17/2019 05/17/2019
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05/22/2019 05/23/2019 05/24/2019 05/29/2019 05/29/2019 05/29/2019 05/29/2019 05/29/2019 05/29/2019 05/29/2019

132 MOTION to Seal Exhibits B and F−L filed Simultaneously with Plaintiffs' Opposition to Defendants' Renewed Motion to Dismiss Plaintiff OutServe−SLDN by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 05/17/2019)
133 Notice of Filing Sealing Motion LCvR5(C) by OutServe−SLDN, Inc., Richard Roe, Victor Voe re 132 MOTION to Seal Exhibits B and F−L filed Simultaneously with Plaintiffs' Opposition to Defendants' Renewed Motion to Dismiss Plaintiff OutServe−SLDN (Harding, John) (Entered: 05/17/2019)
134 Sealed Document re 132 MOTION to Seal Exhibits B and F−L filed Simultaneously with Plaintiffs' Opposition to Defendants' Renewed Motion to Dismiss Plaintiff OutServe−SLDN. (Attachments: # 1 Exhibit F, # 2 Exhibit G, # 3 Exhibit H, # 4 Exhibit I, # 5 Exhibit J, # 6 Exhibit K, # 7 Exhibit L)(Harding, John) (Entered: 05/17/2019)
135 Memorandum in Support re 132 MOTION to Seal Exhibits B and F−L filed Simultaneously with Plaintiffs' Opposition to Defendants' Renewed Motion to Dismiss Plaintiff OutServe−SLDN filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 05/17/2019)
136 ORDER−It is hereby ORDERED that Exhibits B and F−L in support of Plaintiffs' Opposition Defendants' Renewed 132 Motion to Dismiss Plaintiff OutServe−SLDN may remain filed under seal, and that Plaintiffs publicly file redacted versions of Exhibits B and F−L by May 29,2019. Signed by District Judge Leonie M. Brinkema on 5/21/2019. (See order for further details). (acha, ) (Entered: 05/21/2019)
Reset Deadlines as to 118 MOTION to Dismiss for Lack of Jurisdiction IN PART. Motion Hearing set for 5/31/2019 at 09:30 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (Per LMB chambers)(clar, ) (Entered: 05/22/2019)
137 REPLY to Response to Motion re 118 MOTION to Dismiss for Lack of Jurisdiction IN PART filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Exhibit S, # 2 Exhibit T)(McCotter, R.) (Entered: 05/23/2019)
138 STATUS REPORT Joint Status Report by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Exhibit A)(Harding, John) (Entered: 05/24/2019)
139 MOTION to Seal by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 05/29/2019)
140 Memorandum in Support re 139 MOTION to Seal filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 05/29/2019)
141 Notice of Under Seal Filing LCvR5 (B) by James N. Mattis, United States Department of Defense, Heather A. Wilson (McCotter, R.) (Entered: 05/29/2019)
142 MOTION for Extension of Time to File and Exchange Rule 26 Disclosures by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 05/29/2019)
143 Memorandum in Support re 142 MOTION for Extension of Time to File and Exchange Rule 26 Disclosures filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 05/29/2019)
144 Redacted version of Exhibits B, F−L in relation to Order granting Motion to Seal entered May 20, 2019. (Attachments: # 1 Exhibit F, # 2 Exhibit G, # 3 Exhibit H, # 4 Exhibit I, # 5 Exhibit J, # 6 Exhibit K, # 7 Exhibit L)(Harding, John) (Entered: 05/29/2019)
145 ORDER granting 142 Motion for Extension of Time to File and Exchange Rule 26 Disclosures. ORDERED that the Parties shall file the pretrial disclosure required by the scheduling order entered in Harrison v. Shanaban, see Dkt. 64 on or before June 5, 2019. Signed by District Judge Leonie M. Brinkema on 5/29/2019. (dest, ) (Entered: 05/29/2019)

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05/30/2019 05/31/2019 05/31/2019
06/05/2019 06/05/2019 06/05/2019 06/05/2019 06/05/2019 06/11/2019 06/12/2019
06/17/2019 06/17/2019 06/17/2019 06/18/2019

Reset Deadlines as to 118 MOTION to Dismiss for Lack of Jurisdiction IN PART. Motion Hearing set for 5/31/2019 at 09:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (Per LMB chambers) (clar, ) (Entered: 05/30/2019)
146 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing held on 5/31/2019. Appearances of counsel. Defts 118 MOTION to Dismiss for Lack of Jurisdiction IN PART is argued and HELD IN ABEYANCE. (order to follow) (Court Reporter A. Thomson.)(yguy) (Entered: 05/31/2019)
147 ORDER: For the reasons stated in open court, Defendants' Renewed Motions to Dismiss [1:18−cv−641, Dkt. No. 154; l:18−cv−1565, Dkt. No. 118]' are HELD IN ABEYANCE, and it is hereby ORDERED that the parties have until the close of business on Monday, July 1, 2019 to conduct additional discovery with respect to whether plaintiff OutServe−SLDN, Inc. has associational and/or direct standing. If the additional discovery period does not reveal any further facts that merit attention, the parties should so advise the Court. Alternatively, if any party wishes to submit additional briefing related to newly discovered evidence, it must do so no later than Friday, July 12,2019. Any briefs in opposition must be filed by Friday, July 19, 2019, and no reply briefs will be permitted. (see order for details) Signed by District Judge Leonie M. Brinkema on 5/31/19. (yguy) (Entered: 05/31/2019)
148 Exhibit List by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson.. (McCotter, R.) (Entered: 06/05/2019)
149 Witness List by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 06/05/2019)
150 Exhibit List by OutServe−SLDN, Inc., Richard Roe, Victor Voe.. (Harding, John) (Entered: 06/05/2019)
151 Witness List by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 06/05/2019)
152 Statement of Undisputed Facts by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 06/05/2019)
153 ORDER granting 139 MOTION to Seal by James N. Mattis, United States Department of Defense, Heather A. Wilson. Signed by Magistrate Judge Ivan D. Davis on 6/11/2019. (See order for further details). (acha, ) (Entered: 06/11/2019)
154 TRANSCRIPT of proceedings held on 5/31/2019, before Judge Leonie M. Brinkema, Court Reporter Anneliese Thomson, Telephone number 703−299−8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 7/12/2019. Redacted Transcript Deadline set for 8/12/2019. Release of Transcript Restriction set for 9/10/2019.(thomson, anneliese) (Entered: 06/12/2019)
155 Objection to 150 Exhibit List filed by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 06/17/2019)
156 Objection to 149 Witness List filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 06/17/2019)
157 Objection to 148 Exhibit List filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 06/17/2019)
158 ORDER granting in part and denying in part 95 MOTION to Compel Documents and Information Withheld on the Basis of Deliberative Process Privilege by OutServe−SLDN, Inc., Richard Roe, Victor Voe. Signed by Magistrate Judge Ivan D. Davis on 6/18/2019. (See order for further details). (acha, ) (Entered: 06/18/2019)

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06/19/2019 06/21/2019 06/21/2019 06/24/2019 07/01/2019 07/03/2019 07/03/2019 07/03/2019 07/03/2019 07/03/2019 07/03/2019 07/05/2019
07/05/2019 07/05/2019 07/10/2019 07/10/2019

159 Plaintiffs' First Supplemental Exhibit List by OutServe−SLDN, Inc., Richard Roe, Victor Voe.. (Harding, John) (Entered: 06/19/2019)
160 Joint MOTION to Modify the Court's Order for the Limited Purpose of Taking a Deposition Out of Time by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 06/21/2019)
161 Memorandum in Support re 160 Joint MOTION to Modify the Court's Order for the Limited Purpose of Taking a Deposition Out of Time filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 06/21/2019)
162 ORDER granting 160 Joint MOTION to Modify the Court's Order for the Limited Purpose of Taking a Deposition Out of Time by OutServe−SLDN, Inc., Richard Roe, Victor Voe. Signed by Magistrate Judge Ivan D. Davis on 6/24/2019. (See order for further details). (acha, ) (Entered: 06/24/2019)
163 Objection to 159 Exhibit List filed by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 07/01/2019)
164 Consent MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking Depositions Out of Time by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 07/03/2019)
165 Memorandum in Support re 164 Consent MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking Depositions Out of Time filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 07/03/2019)
166 Notice of Hearing Date set for July 12, 2019 re 164 Consent MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking Depositions Out of Time (Harding, John) (Entered: 07/03/2019)
167 MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 07/03/2019)
168 Memorandum in Support re 167 MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Harding, John) (Entered: 07/03/2019)
169 Notice of Hearing Date set for July 12, 2019 re 167 MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time (Harding, John) (Entered: 07/03/2019)
Set Deadlines as to 164 Consent MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking Depositions Out of Time , 167 MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time . Motion Hearing set for 7/12/2019 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (dvanm, ) (Entered: 07/05/2019)
MOTIONS REFERRED to Magistrate Judge: Davis. 164 Consent MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking Depositions Out of Time , 167 MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time (dvanm, ) (Entered: 07/05/2019)
170 ORDER granting 164 Consent MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking Depositions Out of Time by OutServe−SLDN, Inc., Richard Roe, Victor Voe. Signed by District Judge Leonie M. Brinkema on 7/5/2019. (See order for further details). (acha, ) (Entered: 07/05/2019)
171 Memorandum in Opposition re 167 MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time filed by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Exhibit A through J)(McCotter, R.) (Entered: 07/10/2019)
172 MOTION to Seal by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered:

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07/10/2019 07/10/2019 07/10/2019 07/11/2019 07/11/2019
07/11/2019
07/11/2019
07/11/2019
07/11/2019 07/11/2019 07/11/2019 07/12/2019 07/12/2019
07/12/2019 07/12/2019 07/12/2019

07/10/2019)
173 Notice of Under Seal Filing LCvR5 (B) by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson (McCotter, R.) (Entered: 07/10/2019)
174 Memorandum in Support re 172 MOTION to Seal filed by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 07/10/2019)
175 Sealed Attachment/Exhibit(s) F and G re 171 Memorandum in Opposition,. (McCotter, R.) (Entered: 07/10/2019)
176 Reply to 171 Memorandum in Opposition, filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Harding, John) (Entered: 07/11/2019)
177 MOTION to Seal Plaintiffs' Reply and Exhibits A and B in Support of their Motion to Modify the Court's Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 07/11/2019)
178 Notice of Filing Sealing Motion LCvR5(C) by OutServe−SLDN, Inc., Richard Roe, Victor Voe re 177 MOTION to Seal Plaintiffs' Reply and Exhibits A and B in Support of their Motion to Modify the Court's Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time (Harding, John) (Entered: 07/11/2019)
179 Sealed Response/Reply/Opposition re 177 MOTION to Seal Plaintiffs' Reply and Exhibits A and B in Support of their Motion to Modify the Court's Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Harding, John) (Entered: 07/11/2019)
180 Memorandum in Support re 177 MOTION to Seal Plaintiffs' Reply and Exhibits A and B in Support of their Motion to Modify the Court's Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 07/11/2019)
181 ORDER granting 167 MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time. Signed by District Judge Leonie M. Brinkema on 7/11/2019. (rban, ) (Entered: 07/11/2019)
182 ORDER granting 177 Motion to Seal. Signed by District Judge Leonie M. Brinkema on 7/11/2019. (rban, ) (Entered: 07/11/2019)
183 ORDER granting 172 Motion to Seal. Signed by District Judge Leonie M. Brinkema on 7/11/2019. (rban, ) (Entered: 07/11/2019)
184 MOTION to Compel Documents and Information Withheld on the Basis of Deliberative Process Privilege by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 07/12/2019)
185 Memorandum in Support re 184 MOTION to Compel Documents and Information Withheld on the Basis of Deliberative Process Privilege filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Proposed Order)(Harding, John) (Entered: 07/12/2019)
186 Waiver of Hearing on Motion to Compel (Docket Entry 184) by OutServe−SLDN, Inc., Richard Roe, Victor Voe (Harding, John) (Entered: 07/12/2019)
187 RESPONSE in Opposition re 118 MOTION to Dismiss for Lack of Jurisdiction IN PART filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Exhibit D, # 2 Exhibit G)(Harding, John) (Entered: 07/12/2019)
188 MOTION to Seal Exhibits A−C, E and F to Plaintiffs Supplemental Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe−SLDN by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 07/12/2019)

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07/12/2019
07/12/2019
07/12/2019
07/12/2019 07/12/2019 07/12/2019 07/12/2019 07/12/2019 07/15/2019 07/15/2019
07/15/2019 07/17/2019
07/17/2019 07/17/2019 07/17/2019 07/17/2019 07/17/2019

189 Notice of Filing Sealing Motion LCvR5(C) by OutServe−SLDN, Inc., Richard Roe, Victor Voe re 188 MOTION to Seal Exhibits A−C, E and F to Plaintiffs Supplemental Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe−SLDN (Harding, John) (Entered: 07/12/2019)
190 Sealed Attachment/Exhibit(s) re 188 MOTION to Seal Exhibits A−C, E and F to Plaintiffs Supplemental Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe−SLDN. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit E, # 4 Exhibit F)(Harding, John) (Entered: 07/12/2019)
191 Memorandum in Support re 188 MOTION to Seal Exhibits A−C, E and F to Plaintiffs Supplemental Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe−SLDN filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 07/12/2019)
192 Sealed Memorandum in Support re 118 MOTION to Dismiss for Lack of Jurisdiction IN PART. (Attachments: # 1 Exhibit Batch 1, # 2 Exhibit Batch 2, # 3 Exhibit Batch 3, # 4 Exhibit Batch 4, # 5 Exhibit Batch 5)(McCotter, R.) (Entered: 07/12/2019)
193 MOTION to Seal by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 07/12/2019)
194 Notice of Under Seal Filing LCvR5 (B) by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson (McCotter, R.) (Entered: 07/12/2019)
195 Memorandum in Support re 193 MOTION to Seal filed by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 07/12/2019)
196 NOTICE by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson SUBMISSION OF UNDER SEAL DVD (McCotter, R.) (Entered: 07/12/2019)
197 ORDER granting 193 MOTION to Seal by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. Signed by District Judge Leonie M. Brinkema on 7/15/2019. (See order for further details). (acha, ) (Entered: 07/15/2019)
198 ORDER− It is hereby: ORDERED [188} Motion to Seal is GRANTED and that Exhibits A−C, E and F in support of Plaintiffs' Supplemental Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe−SLDN may remain filed under seal, and that Plaintiffs publicly file redacted versions of Exhibits A−C, E and F by July 19, 2019. Signed by District Judge Leonie M. Brinkema on 7/15/2019. (See order for further details) (acha, ) (Entered: 07/15/2019)
199 Sealed Exhibit− DVD Disk re: DE 192 by United States Department of Defense, Victor Voe, Heather A. Wilson and forwarded to Clerk's Office Vault. (acha, ) (Entered: 07/16/2019)
200 Memorandum in Opposition re 184 MOTION to Compel Documents and Information Withheld on the Basis of Deliberative Process Privilege filed by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Exhibit Public)(McCotter, R.) (Entered: 07/17/2019)
201 MOTION to Seal by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 07/17/2019)
202 Memorandum in Support re 201 MOTION to Seal filed by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 07/17/2019)
203 Notice of Filing Sealing Motion LCvR5(C) by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson (McCotter, R.) (Entered: 07/17/2019)
204 Sealed Attachment/Exhibit(s) re 200 Memorandum in Opposition,. (McCotter, R.) (Entered: 07/17/2019)
205 ORDER granting 201 MOTION to Seal by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. Signed by District Judge Leonie M.

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07/18/2019 07/18/2019 07/18/2019 07/18/2019 07/18/2019 07/19/2019 07/19/2019
07/19/2019 07/19/2019 07/19/2019 07/19/2019 07/19/2019 07/19/2019

Brinkema on 7/17/2019. (See order for further details). (acha, ) (Entered: 07/17/2019)
206 Reply to 200 Memorandum in Opposition, filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Harding, John) (Entered: 07/18/2019)
207 MOTION to Seal Plaintiffs' Reply and Exhibits A−F in Support of their Motion to Compel the Production of Documents and Information by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 07/18/2019)
208 Notice of Filing Sealing Motion LCvR5(C) by OutServe−SLDN, Inc., Richard Roe, Victor Voe re 207 MOTION to Seal Plaintiffs' Reply and Exhibits A−F in Support of their Motion to Compel the Production of Documents and Information (Harding, John) (Entered: 07/18/2019)
209 Sealed Document re 207 MOTION to Seal Plaintiffs' Reply and Exhibits A−F in Support of their Motion to Compel the Production of Documents and Information. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Harding, John) (Entered: 07/18/2019)
210 Memorandum in Support re 207 MOTION to Seal Plaintiffs' Reply and Exhibits A−F in Support of their Motion to Compel the Production of Documents and Information filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 07/18/2019)
211 ORDER granting 207 Motion to Seal (see order for details). Signed by District Judge Leonie M. Brinkema on 07/19/2019. (jlan) (Entered: 07/19/2019)
212 TRANSCRIPT of proceedings held on 5/16/2019, before Judge Leonie M. Brinkema, Court Reporter Anneliese Thomson, Telephone number 703−299−8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 8/19/2019. Redacted Transcript Deadline set for 9/18/2019. Release of Transcript Restriction set for 10/17/2019.(thomson, anneliese) (Entered: 07/19/2019)
213 EXHIBIT Redacted Versions of Exhibits A−C, E and F related to D.E. No. 187 Response in Opposition to D.E No. 118 Motion to Dismiss by OutServe−SLDN, Inc., Richard Roe, Victor Voe.. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit E, # 4 Exhibit F)(Harding, John) (Entered: 07/19/2019)
214 MOTION to Stay Summary Judgment and Trial Pending Appellate Ruling by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order, # 2 Exhibit Combined Exhibits)(McCotter, R.) (Entered: 07/19/2019)
215 Notice of Hearing Date set for JULY 26, 2019 re 214 MOTION to Stay Summary Judgment and Trial Pending Appellate Ruling (McCotter, R.) (Entered: 07/19/2019)
216 Reply to 192 Sealed Memorandum in Support filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Exhibit A)(Harding, John) (Entered: 07/19/2019)
217 MOTION to Seal Exhibit B filed Simultaneously with Plaintiffs' Supplemental Response Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe−SLDN by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 07/19/2019)
218 Notice of Under Seal Filing LCvR5 (B) by OutServe−SLDN, Inc., Richard Roe, Victor Voe re 217 MOTION to Seal Exhibit B filed Simultaneously with Plaintiffs' Supplemental Response Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe−SLDN (Harding, John) (Entered: 07/19/2019)

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07/19/2019 07/19/2019 07/19/2019
07/19/2019 07/19/2019 07/19/2019 07/19/2019 07/22/2019 07/22/2019 07/22/2019
07/22/2019
07/23/2019 07/23/2019 07/23/2019 07/23/2019

219 Sealed Attachment/Exhibit(s) re 217 MOTION to Seal Exhibit B filed Simultaneously with Plaintiffs' Supplemental Response Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe−SLDN. (Harding, John) (Entered: 07/19/2019)
220 Memorandum in Support re 217 MOTION to Seal Exhibit B filed Simultaneously with Plaintiffs' Supplemental Response Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe−SLDN filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 07/19/2019)
221 ORDER granting 217 MOTION to Seal Exhibit B filed Simultaneously with Plaintiffs' Supplemental Response Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe−SLDN by OutServe−SLDN, Inc., Richard Roe, Victor Voe. Signed by District Judge Leonie M. Brinkema on 7/19/2019. (See order for further details). (acha, ) (Entered: 07/19/2019)
222 Sealed Response/Reply/Opposition re 1 Complaint, 118 MOTION to Dismiss for Lack of Jurisdiction IN PART. (Attachments: # 1 Exhibit Combined Exhibits)(McCotter, R.) (Entered: 07/19/2019)
223 MOTION to Seal by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 07/19/2019)
224 Memorandum in Support re 223 MOTION to Seal filed by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 07/19/2019)
225 Notice of Filing Sealing Motion LCvR5(C) by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson (McCotter, R.) (Entered: 07/19/2019)
Set Deadlines as to 214 MOTION to Stay Summary Judgment and Trial Pending Appellate Ruling. Motion Hearing set for 7/26/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 07/22/2019)
226 ORDER granting 223 MOTION to Seal by Patrick M. Shanahan, United States Department of Defense, Heather A. Wilson. Signed by District Judge Leonie M. Brinkema on 7/22/2019. (See order for further details). (acha, ) (Entered: 07/22/2019)
227 ORDER − Accordingly, it is hereby ORDERED that the caption of this civil action be and is AMENDED to substitute "Richard V. Spencer, Acting Secretary of Defense" for "Patrick M. Shanahan, Acting Secretary of Defense"; and it is further ORDERED that the caption of this civil action be and is AMENDED to substitute"Matthew Donovan, Acting Secretary of the Air Force" for "Heather A. Wilson, Secretary of the Air Force." Signed by District Judge Leonie M. Brinkema on 7/22/2019. (See order for further details).(acha, ) (Entered: 07/22/2019)
228 ORDER− Accordingly, it is hereby ORDERED that the hearing currently scheduled for Defendants' Motion to Stay [1:18−cv−1565, DKT. No. 214 be and is CANCELLED. The Court will rule on Defendant's motions once plaintiffs have filed a response or opposition. Signed by District Judge Leonie M. Brinkema on 7/22/2019. (See order for further details). (acha, ) (Entered: 07/22/2019)
229 EXHIBIT Second Supplemental Exhibit List by OutServe−SLDN, Inc., Richard Roe, Victor Voe.. (Harding, John) (Entered: 07/23/2019)
230 MOTION for Partial Summary Judgment (Counts II and III) by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 07/23/2019)
231 Notice of Hearing Date set for 8/16/2019 re 230 MOTION for Partial Summary Judgment (Counts II and III) (Harding, John) (Entered: 07/23/2019)
232 MOTION to Seal Plaintiffs Memorandum in Support of their Motion for Partial Summary Judgment and Exhibits A−C & F−J to that Memorandum by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 07/23/2019)

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07/23/2019 07/23/2019 07/23/2019 07/23/2019 07/24/2019 07/24/2019 07/24/2019 07/26/2019 07/26/2019
07/26/2019 07/31/2019 07/31/2019
07/31/2019 08/01/2019 08/02/2019

233 Memorandum in Support re 232 MOTION to Seal Plaintiffs Memorandum in Support of their Motion for Partial Summary Judgment and Exhibits A−C & F−J to that Memorandum filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 07/23/2019)
234 Notice of Under Seal Filing LCvR5 (B) by OutServe−SLDN, Inc., Richard Roe, Victor Voe re 232 MOTION to Seal Plaintiffs Memorandum in Support of their Motion for Partial Summary Judgment and Exhibits A−C & F−J to that Memorandum (Harding, John) (Entered: 07/23/2019)
235 Sealed Memorandum in Support re 230 MOTION for Partial Summary Judgment (Counts II and III). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit F, # 5 Exhibit G, # 6 Exhibit H, # 7 Exhibit I, # 8 Exhibit J)(Harding, John) (Entered: 07/23/2019)
236 EXHIBIT D & E to 235 Sealed Memorandum in Support re 230 MOTION for Partial Summary Judgment (Counts II and III) by OutServe−SLDN, Inc., Richard Roe, Victor Voe.. (Attachments: # 1 Exhibit E)(Harding, John) (Entered: 07/23/2019)
Set Deadlines as to 230 MOTION for Partial Summary Judgment (Counts II and III). Motion Hearing set for 8/16/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 07/24/2019)
Notice of Correction re 236 Exhibit. An incomplete, illegible, or incorrect document was filed in the future please include the case number and case title. (clar, ) (Entered: 07/24/2019)
237 Opposition to 214 MOTION to Stay Summary Judgment and Trial Pending Appellate Ruling filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Exhibit A)(Harding, John) (Entered: 07/24/2019)
238 CERTIFICATE of Service Amended Certificate of Service re 235 Sealed Memorandum in Support, by John Webster Hunter Harding on behalf of OutServe−SLDN, Inc., Richard Roe, Victor Voe (Harding, John) (Entered: 07/26/2019)
239 RESPONSE in Support re 118 MOTION to Dismiss for Lack of Jurisdiction IN PART REDACTED COPY OF BRIEF AND REDACTED EXHIBITS filed by Matthew Donovan, Patrick M. Shanahan, Richard V. Spencer, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Exhibit U through JJ REDACTED, # 2 Exhibit KK through AAA REDACTED)(McCotter, R.) (Entered: 07/26/2019)
240 EXHIBIT Redacted Version of Exhibit B to (216) Plaintiffs' Supplemental Opposition to Defendants' Renewed Motion to Dismiss by OutServe−SLDN, Inc., Richard Roe, Victor Voe.. (Harding, John) (Entered: 07/26/2019)
241 ORDER granting 232 Motion to Seal. Plaintiffs must publicly file redacted versions by 8/2/2019. Signed by District Judge Leonie M. Brinkema on 7/31/2019. (rban, ) (Entered: 07/31/2019)
242 REPLY to Response to Motion re 118 MOTION to Dismiss for Lack of Jurisdiction IN PART REDACTED BRIEF AND EXHIBITS filed by Matthew Donovan, Patrick M. Shanahan, Richard V. Spencer, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Exhibit BBB to III REDACTED)(McCotter, R.) (Entered: 07/31/2019)
243 MOTION for Extension of Page Limit (UNOPPOSED) by Matthew Donovan, Patrick M. Shanahan, Richard V. Spencer, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 07/31/2019)
244 ORDERED that the bench trial scheduled to begin on September 9, 2019 be and is CANCELLED; all proceedings in these civil actions be and are stayed until further order of the Court. Signed by District Judge Leonie M. Brinkema on 08/01/2019. (choy, ) (Entered: 08/01/2019)
245 Memorandum in Support re 230 MOTION for Partial Summary Judgment (Counts II and III) Redacted filed by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit F, # 5 Exhibit G, # 6 Exhibit H, # 7 Exhibit I, # 8 Exhibit J)(Harding, John) (Entered: 08/02/2019)

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08/27/2019 08/27/2019 08/28/2019 01/10/2020 01/10/2020 01/14/2020 01/14/2020 03/03/2020 03/06/2020 03/06/2020 03/10/2020 03/10/2020 03/10/2020 03/11/2020
03/11/2020
03/27/2020

246 MOTION to Withdraw as Attorney by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Cooley, Laura) (Entered: 08/27/2019)
247 ORDER of USCA as to 112 Notice of Appeal filed by United States Department of Defense, Heather A. Wilson, Patrick M. Shanahan. The court grants the motion to withdraw from further representation on appeal. (acha, ) (Entered: 08/28/2019)
248 ORDER granting 246 Motion to Withdraw Laura Joy Cooley terminated as attorney. Signed by District Judge Leonie M. Brinkema on 8/28/2019. (See order for further details). (acha, ) (Entered: 08/28/2019)
249 Published Opinion of USCA re 112 Notice of Appeal− AFFIRMED. (acha, ) (Entered: 01/10/2020)
250 USCA JUDGMENT as to 112 Notice of Appeal filed by United States Department of Defense, Heather A. Wilson, Patrick M. Shanahan. In accordance with the decision of this court, the judgment of the district court is affirmed. (acha, ) (Entered: 01/10/2020)
251 PUBLISHED OPINION of USCA re 112 Notice of Appeal− AFFIRMED. (acha, ) (Entered: 01/14/2020)
252 ORDER of USCA as to 112 Notice of Appeal filed by United States Department of Defense, Heather A. Wilson, Patrick M. Shanahan. The Court amends its opinion filed January 10, 2020. (acha, ) (Entered: 01/14/2020)
253 USCA Mandate re 112 Notice of Appeal. The judgment of this court, entered 01/10/2020, takes effect today. (acha, ) (Entered: 03/03/2020)
254 NOTICE of Appearance by Dennis Carl Barghaan, Jr on behalf of Matthew Donovan, Richard V. Spencer, United States Department of Defense (Barghaan, Dennis) (Entered: 03/06/2020)
255 NOTICE by Matthew Donovan, Richard V. Spencer, United States Department of Defense of Ex Parte Submission (Barghaan, Dennis) (Entered: 03/06/2020)
256 Financial Interest Disclosure Statement (Local Rule 7.1) by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Harding, John) (Entered: 03/10/2020)
257 Withdrawal of Motion by OutServe−SLDN, Inc., Richard Roe, Victor Voe re 230 MOTION for Partial Summary Judgment (Counts II and III) (Harding, John) (Entered: 03/10/2020)
258 Consent MOTION to Substitute Party by OutServe−SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 03/10/2020)
259 ORDER: Pursuant to Plaintiffs' consent motion, the Court hereby orders that: The Modem Military Association of America is substituted in place of OutServe−SLDN, Inc. in the above−captioned cases. The Clerk is requested to have the docket sheets reflect that OutServe−SLDN, Inc. is no longer a party and the Modern Military Association of America is a Plaintiff. Signed by District Judge Leonie M. Brinkema on 3/11/20. (yguy) (Entered: 03/11/2020)
260 ORDERED that plaintiffs file their motion for summary judgment on all counts, which is not to exceed 70 pages, no later than May 4, 2020; that defendants file their combined brief in opposition and cross−motion for summary judgment on all counts, which is not to exceed 70 pages, no later than June 3, 2020; that plaintiffs file their combined brief in opposition and reply brief, which is not to exceed 40 pages, no later than July 2, 2020; and that defendants file their reply brief, which is not to exceed 40 pages, no later than July 20, 2020; 1 and it is further ORDERED that defendants' Unopposed Motion for Extension of Page Limits, and Memorandum in Support Thereof [Dkt. 243] be and is DENIED AS MOOT.(see order for details) Signed by District Judge Leonie M. Brinkema on 3/11/20. (yguy) (Entered: 03/11/2020)
261 MEMORANDUM OPINION: For the reasons stated above, the defendants' motions to dismiss [Harrison, 0kt. 154; Roe, Dkt. 118] will be denied by an Order to be issued with this Memorandum Opinion. Signed by District Judge Leonie M. Brinkema on 3/27/20. (yguy) (Entered: 03/27/2020)

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03/27/2020 03/27/2020 05/04/2020 05/04/2020 05/04/2020 05/04/2020 05/04/2020 05/04/2020
05/04/2020 05/05/2020 05/08/2020

262 ORDER: For the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that the defendants' Renewed Motions to Dismiss [Harrison, Dkt. 154; Roe; Dkt. 118] be and are DENIED; and it is further ORDERED that the defendants correct the record to update the names of the defendants. Signed by District Judge Leonie M. Brinkema on 3/27/20. (yguy) (Entered: 03/27/2020)
263 ORDER− For these reasons, it is hereby ORDERED that plaintiffs' Motion to Compel [Dkt. 184 ] be and is DENIED. Signed by District Judge Leonie M. Brinkema on 3/27/2020. (See order for further details). (acha, ) (Entered: 03/27/2020)
265 MOTION to Seal Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Summary Judgment and Exhibits 4, 11, 13, 14−19, 42, 49, 62 and 63 in Support of Their Motion for Summary Judgment by Richard Roe, The Modern Military Association of America, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 05/04/2020)
266 Notice of Filing Sealing Motion LCvR5(C) by Richard Roe, The Modern Military Association of America, Victor Voe re 265 MOTION to Seal Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Summary Judgment and Exhibits 4, 11, 13, 14−19, 42, 49, 62 and 63 in Support of Their Motion for Summary Judgment (Harding, John) (Entered: 05/04/2020)
267 Memorandum in Support re 265 MOTION to Seal Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Summary Judgment and Exhibits 4, 11, 13, 14−19, 42, 49, 62 and 63 in Support of Their Motion for Summary Judgment filed by Richard Roe, The Modern Military Association of America, Victor Voe. (Harding, John) (Entered: 05/04/2020)
268 Sealed Document re 265 MOTION to Seal Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Summary Judgment and Exhibits 4, 11, 13, 14−19, 42, 49, 62 and 63 in Support of Their Motion for Summary Judgment. (Attachments: # 1 Exhibit 4, # 2 Exhibit 11, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17, # 8 Exhibit 18, # 9 Exhibit 19, # 10 Exhibit 42, # 11 Exhibit 49, # 12 Exhibit 62, # 13 Exhibit 63)(Harding, John) (Entered: 05/04/2020)
269 MOTION for Summary Judgment by Richard Roe, The Modern Military Association of America, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 05/04/2020)
270 Memorandum in Support re 269 MOTION for Summary Judgment filed by Richard Roe, The Modern Military Association of America, Victor Voe. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, Part 1 of 3, # 45 Exhibit 44, Part 2 of 3, # 46 Exhibit 44, Part 3 of 3, # 47 Exhibit 45, # 48 Exhibit 46, # 49 Exhibit 47, # 50 Exhibit 48, # 51 Exhibit 49, # 52 Exhibit 50, # 53 Exhibit 51, # 54 Exhibit 52, # 55 Exhibit 53, # 56 Exhibit 54, # 57 Exhibit 55, # 58 Exhibit 56, # 59 Exhibit 57, # 60 Exhibit 58, # 61 Exhibit 59, # 62 Exhibit 60, # 63 Exhibit 61, # 64 Exhibit 62, # 65 Exhibit 63)(Harding, John) (Entered: 05/04/2020)
271 Notice of Hearing Date set for July 31, 2020 re 269 MOTION for Summary Judgment (Harding, John) (Entered: 05/04/2020)
Set Deadlines as to 269 MOTION for Summary Judgment . Motion Hearing set for 7/31/2020 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 05/05/2020)
272 ORDER granting 265 MOTION to Seal Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Summary Judgment and Exhibits 4, 11, 13, 14−19, 42, 49, 62 and 63 in Support of Their Motion for Summary Judgment by Richard Roe, The Modern Military Association of America, Victor Voe. Signed by District Judge Leonie M. Brinkema on 5/8/2020. (See order for further details). (acha, ) (Entered:

Case: 1:18-cv-1565 As of: 07/03/2020 03:46 PM EDT 22 of 23

05/27/2020 05/27/2020
06/03/2020 06/03/2020
06/03/2020
06/03/2020
06/03/2020
06/03/2020 06/03/2020 06/03/2020 06/03/2020 06/04/2020 06/04/2020 06/04/2020

05/08/2020)
273 Consent MOTION for Leave to File Excess Pages by Matthew Donovan, Richard V. Spencer, United States Department of Defense. (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 05/27/2020)
274 ORDER granting 273 Consent Motion for Leave to File Excess Pages. ORDERED that Defendants' combined opposition to Plaintiffs' partial summary judgment motion and cross motion for summary judgment shall not exceed 80 pages and Defendants' reply brief shall not exceed 30 pages. Signed by District Judge Leonie M. Brinkema on 5/27/20. (klau, ) (Entered: 05/28/2020)
275 MOTION for Summary Judgment by Matthew Donovan, Richard V. Spencer, United States Department of Defense. (Barghaan, Dennis) (Entered: 06/03/2020)
276 Memorandum in Support re 275 MOTION for Summary Judgment filed by Matthew Donovan, Richard V. Spencer, United States Department of Defense. (Attachments: # 1 Exhibit 1 (Part I), # 2 Exhibit 1 (Part II), # 3 Exhibit 1 (Part III), # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6)(Barghaan, Dennis) (Entered: 06/03/2020)
277 EXHIBIT by Matthew Donovan, Richard V. Spencer, United States Department of Defense.. (Attachments: # 1 Exhibit 7, # 2 Exhibit 8, # 3 Exhibit 9, # 4 Exhibit 10, # 5 Exhibit 11, # 6 Exhibit 12, # 7 Exhibit 13, # 8 Exhibit 14, # 9 Exhibit 15, # 10 Exhibit 16, # 11 Exhibit 17, # 12 Exhibit 18, # 13 Exhibit 19, # 14 Exhibit 20, # 15 Exhibit 21, # 16 Exhibit 22, # 17 Exhibit 23, # 18 Exhibit 24, # 19 Exhibit 25)(Barghaan, Dennis) (Entered: 06/03/2020)
278 EXHIBIT by Matthew Donovan, Richard V. Spencer, United States Department of Defense.. (Attachments: # 1 Exhibit 26, # 2 Exhibit 27 (Part I), # 3 Exhibit 27 (Part II), # 4 Exhibit 28, # 5 Exhibit 29, # 6 Exhibit 30, # 7 Exhibit 31, # 8 Exhibit 32, # 9 Exhibit 33, # 10 Exhibit 34, # 11 Exhibit 35, # 12 Exhibit 36, # 13 Exhibit 37, # 14 Exhibit 38, # 15 Exhibit 39, # 16 Exhibit 40, # 17 Exhibit 41, # 18 Exhibit 42, # 19 Exhibit 43, # 20 Exhibit 44, # 21 Exhibit 45, # 22 Exhibit 46)(Barghaan, Dennis) (Entered: 06/03/2020)
279 EXHIBIT by Matthew Donovan, Richard V. Spencer, United States Department of Defense.. (Attachments: # 1 Exhibit 47, # 2 Exhibit 48, # 3 Exhibit 49, # 4 Exhibit 50, # 5 Exhibit 51, # 6 Exhibit 52, # 7 Exhibit 53, # 8 Exhibit 54, # 9 Exhibit 55, # 10 Exhibit 56, # 11 Exhibit 57, # 12 Exhibit 58, # 13 Exhibit 59, # 14 Exhibit 60)(Barghaan, Dennis) (Entered: 06/03/2020)
280 Notice of Hearing Date set for 7/31/20 re 275 MOTION for Summary Judgment (Barghaan, Dennis) (Entered: 06/03/2020)
281 MOTION to Seal Certain Summary Judgment Filings by Matthew Donovan, Richard V. Spencer, United States Department of Defense. (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 06/03/2020)
282 Memorandum in Support re 281 MOTION to Seal Certain Summary Judgment Filings filed by Matthew Donovan, Richard V. Spencer, United States Department of Defense. (Barghaan, Dennis) (Entered: 06/03/2020)
283 Notice of Filing Sealing Motion LCvR5(C) by Matthew Donovan, Richard V. Spencer, United States Department of Defense re 281 MOTION to Seal Certain Summary Judgment Filings (Barghaan, Dennis) (Entered: 06/04/2020)
284 Sealed Memorandum in Support re 276 Memorandum in Support,. (Barghaan, Dennis) (Entered: 06/04/2020)
285 Sealed Document re 276 Memorandum in Support,. (Attachments: # 1 Exhibit 15, # 2 Exhibit 25, # 3 Exhibit 28, # 4 Exhibit 29, # 5 Exhibit 30, # 6 Exhibit 31, # 7 Exhibit 44, # 8 Exhibit 58, # 9 Exhibit 59, # 10 Exhibit 60)(Barghaan, Dennis) (Entered: 06/04/2020)
286 MOTION to Exclude Evidence by Matthew Donovan, Richard V. Spencer, United States Department of Defense. (Barghaan, Dennis) (Entered: 06/04/2020)

Case: 1:18-cv-1565 As of: 07/03/2020 03:46 PM EDT 23 of 23

06/04/2020 06/04/2020 06/04/2020 06/04/2020 06/10/2020 06/10/2020
06/11/2020 06/22/2020
07/02/2020 07/02/2020 07/02/2020 07/02/2020 07/02/2020

287 Memorandum in Support re 286 MOTION to Exclude Evidence filed by Matthew Donovan, Richard V. Spencer, United States Department of Defense. (Attachments: # 1 Exhibit A)(Barghaan, Dennis) (Entered: 06/04/2020)
288 Notice of Hearing Date set for 7/31/20 re 286 MOTION to Exclude Evidence (Barghaan, Dennis) (Entered: 06/04/2020)
Set Deadlines as to 275 MOTION for Summary Judgment , 286 MOTION to Exclude Evidence. Motion Hearing set for 7/31/2020 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 06/04/2020)
289 ORDER granting 281 MOTION to Seal Certain Summary Judgment Filings by Matthew Donovan, Richard V. Spencer, United States Department of Defense. Signed by District Judge Leonie M. Brinkema on 6/4/2020. (See order for further details). (acha, ) (Entered: 06/04/2020)
290 Consent MOTION for Extension of Briefing Deadlines by OutServe−SLDN, Inc., Richard Roe, The Modern Military Association of America, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 06/10/2020)
291 ORDER− It is hereby ORDERED that defendant's Motion to Exclude Evidence [Harrison, Dkt. 274 ; Roe, Dkt. 286 ]be and is DENIED; and it is further ORDERED that plaintiff's Motion for Extension of Briefing Deadlines [Harrison, Dkt. 279 ; Roe, Dkt. 290 ] be and is DENIED as moot. Signed by District Judge Leonie M. Brinkema on 6/10/2020. (See order for further details). (acha, ) (Main Document 291 replaced on to replace corrected order 6/10/2020) (acha, ). Modified on 6/10/2020 (acha, ). Modified on 6/10/2020 (acha, ). (Entered: 06/10/2020)
292 NOTICE by Matthew Donovan, Richard V. Spencer, United States Department of Defense re 276 Memorandum in Support, 284 Sealed Memorandum in Support, 287 Memorandum in Support (Attachments: # 1 Exhibit 22 (Refiled), # 2 Exhibit 35 (Refiled))(Barghaan, Dennis) (Entered: 06/11/2020)
293 ORDER− It is hereby ORDERED that the hearing currently scheduled for Friday, July 31, 2020 at 10:00 a.m. be and is RESCHEDULED for Tuesday, August 4, 2020 at 11:00 a.m. Motion Hearing set for 8/4/2020 at 11:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. Signed by District Judge Leonie M. Brinkema on 6/22/2020. (See order for further details). (acha, ) Copies sent as directed in the order. (Entered: 06/22/2020)
294 MOTION to Seal Plaintiffs' Combined Reply in Support of Plaintiffs' Motions for Summary Judgment and Opposition to Defendants' Motions for Summary Judgment and Exhibits 64, 70, and 76 by OutServe−SLDN, Inc., Richard Roe, The Modern Military Association of America, Victor Voe. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 07/02/2020)
295 Memorandum in Support re 294 MOTION to Seal Plaintiffs' Combined Reply in Support of Plaintiffs' Motions for Summary Judgment and Opposition to Defendants' Motions for Summary Judgment and Exhibits 64, 70, and 76 . (Harding, John) (Entered: 07/02/2020)
296 Notice of Filing Sealing Motion LCvR5(C) by Richard Roe, The Modern Military Association of America, Victor Voe re 294 MOTION to Seal Plaintiffs' Combined Reply in Support of Plaintiffs' Motions for Summary Judgment and Opposition to Defendants' Motions for Summary Judgment and Exhibits 64, 70, and 76 (Harding, John) (Entered: 07/02/2020)
297 Sealed Response/Reply/Opposition re 275 MOTION for Summary Judgment , 269 MOTION for Summary Judgment . (Attachments: # 1 Exhibit 64, # 2 Exhibit 70, # 3 Exhibit 76)(Harding, John) (Entered: 07/02/2020)
298 Reply to Motion re 275 MOTION for Summary Judgment , 269 MOTION for Summary Judgment , RESPONSE in Opposition filed by OutServe−SLDN, Inc., Richard Roe, The Modern Military Association of America, Victor Voe. (Attachments: # 1 Exhibit 64 (Filed Under Seal), # 2 Exhibit 65, # 3 Exhibit 66, # 4 Exhibit 67, # 5 Exhibit 68, # 6 Exhibit 69, # 7 Exhibit 70 (Filed Under Seal), # 8 Exhibit 71, # 9 Exhibit 72, # 10 Exhibit 73, # 11 Exhibit 74, # 12 Exhibit 75, # 13 Exhibit 76 (Filed Under Seal))(Harding, John) (Entered: 07/02/2020)

 
 Case 1:18-cv-01565-LMB-IDD Document 1 Filed 12/19/18 Page 1 of 32 PageID# 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

RICHARD ROE,
VICTOR VOE, and
OUTSERVE-SLDN, INC.
Plaintiffs,
v.
JAMES N. MATTIS, in his official capacity as Secretary of Defense; HEATHER A. WILSON, in her official capacity as Secretary of the Air Force; and the UNITED STATES DEPARTMENT OF DEFENSE,
Defendants.

CIVIL ACTION NO._________________

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs Richard Roe, Victor Voe, and OutServe-SLDN, Inc. (collectively, “Plaintiffs”), by and through their attorneys, bring this action for declaratory and injunctive relief stemming from Roe’s and Voe’s unconstitutional and improper impending discharges from the United States Air Force. Roe and Voe are being discharged despite the contrary recommendations of their commanding officers and physicians solely because they have tested positive for the human immunodeficiency virus (“HIV”)—even though they are asymptomatic, they adhere to a treatment regimen that has been scientifically established to halt the progression of HIV, and their viral loads are undetectable. As such, their discharges violate the U.S. Constitution and federal statutes and regulations. (In order to protect their medical privacy and to reduce further stigma and

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discrimination if their HIV diagnoses were made public, Plaintiffs Roe and Voe have sought leave to proceed under pseudonyms simultaneously with this complaint.)
STATEMENT OF THE CASE 1. Members of the U.S. Armed Forces embody the best of the American spirit. They serve and defend us for love of country and community. Our military treats Service members’ wounds and illnesses, and, when able, they continue to serve. When military physicians determine that Service members are unable to continue serving, they are afforded a process to be medically separated or to retire. 2. Service members with HIV, however, do not enjoy the same treatment. Asymptomatic HIV has been diagnosed in a significant number of active-duty Service members. Contrary to widespread misunderstandings about HIV, a new diagnosis does not have the same ramifications it did when HIV first entered the public consciousness decades ago. For most people living with HIV, medication renders their HIV inconsequential to their daily lives. Those who adhere to these medication regimens have no symptoms or significant effects on their immune systems. The number of copies of the virus in their blood is suppressed to a level so low that they can no longer transmit it to others. Service members with HIV continue to contribute meaningfully to the military and to their country, just as any other Service member would. 3. Dating back to 1988—at the height of the AIDS crisis—and continuing today, the Department of Defense (“DoD”) has had clear policies and regulations favoring the retention of Service members who are diagnosed with HIV while on active duty. While these policies unduly (and unnecessarily) restrict the ability of Service members living with HIV to deploy and change duty stations or assignments, even as of late 2017, the Air Force allowed at least 13 Airmen living with HIV to serve overseas and support vital missions. According to DoD publications, from 2011 to 2016, the Air Force diagnosed 181 Airmen and the Navy diagnosed 388 sailors with HIV. In
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2016, 119 of those Airmen—more than 65 percent—and 266 of those sailors—more than 68 percent—were still serving. In 2011, the U.S. Army counted 480 soldiers with HIV serving on active duty, with some serving for more than 20 years after they were diagnosed. Indisputably, these Service members are fit for duty, have the skills they need to contribute, and are able to manage their HIV without it affecting their ability to perform their duties.
4. Unfortunately, current military policies make Service members with HIV who are allowed to deploy the exception rather than the rule, even though one’s HIV status has no effect on deployability for the vast majority of Service members with HIV. Requiring Service members to secure a waiver or exception to policy from those who lack both medical training and a complete understanding of HIV in 2018 often invites or facilitates discrimination. This case highlights two such examples: Air Force personnel ignored the recommendations of their own medical officers and operational commanders and instead arbitrarily and wrongly decided to separate Airmen based solely on their HIV status.
5. Plaintiff Roe fulfilled a childhood dream—and a family legacy—by enlisting in the Air Force in 2012. He has been stationed in two foreign countries. The Air Force recognized Roe’s leadership skills and outstanding job performance by promoting him to a non-commissioned officer position earlier than anticipated. He aspires to one day commission as an officer. But his dream was placed in peril when he was diagnosed with HIV in October 2017.
6. Roe began treatment immediately and his viral load was soon undetectable. Yet under current regulations he is restricted from deploying outside the continental United States solely because of his HIV status.
7. Because of his HIV status, Roe underwent a standard medical evaluation process to determine whether he should be retained or separated from the Air Force. Despite the
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recommendations of Roe’s doctor and commanding officer that he be returned to duty, the Secretary of the Air Force (“SAF”) decided that he must be discharged. Accordingly, the Air Force will soon separate him solely because of his HIV status.
8. Plaintiff Voe enlisted in 2011 and has spent almost all of his adult life in the Air Force. He has been stationed in two foreign countries and deployed to the Middle East twice. In fact, in an effort to further the Air Force’s mission and support his comrades, Voe cut short his “dwell time” between deployments so that he could return to the Middle East sooner than scheduled.
9. Voe was diagnosed with HIV in March 2017. He quickly began treatment, and his viral load was undetectable within months. Nevertheless, solely because of his HIV status, under current regulations Voe is restricted from deploying outside the continental United States.
10. Because of his HIV status, Voe underwent a standard medical evaluation process to determine whether he should be retained or separated from the Air Force. Despite the recommendations of Voe’s doctors and commanding officer that he be returned to duty, the SAF decided that he must be discharged. Accordingly, the Air Force will separate him imminently, likely in early 2019, solely because of his HIV status.
11. The SAF’s actions as to Roe and Voe violate the Administrative Procedures Act because they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Moreover, the SAF’s actions, as well as DoD and Air Force policies and practices that treat Roe and Voe—and others living with HIV—differently from other Service members (including those with manageable chronic medical conditions that have no effect on their ability to serve), violate Roe’s and Voe’s rights of equal protection under law, and are therefore contrary to the United States Constitution.
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12. In early 2018, the DoD issued a policy memorandum mandating that all Service members who are not worldwide-deployable for 12 consecutive months be separated from military service. (Memorandum from Robert L. Wilkie, Under Secretary of Defense for Personnel and Readiness, to the Secretaries of the Military Departments et al. (Feb. 14, 2018) (announcing interim guidance regarding “DoD Retention Policy for Non-Deployable Service Members”) (hereinafter “Deploy or Get Out Policy” or “DOGO Policy”)). This directive arguably would have applied to almost all Service members living with HIV. See Department of Defense Instruction 6490.07 (“Medical Conditions Usually Precluding Contingency Deployment”), Encl. 3(e)(2), at p. 11 (classifying HIV as a “medical condition[] usually precluding contingency deployment”).
13. Then, in July 2018, the DoD issued DoDI 1332.45 (the “DOGO Instruction”), which provides that Service members living with HIV will be categorized as “deployable with limitations.”
14. Air Force officials determined that Roe and Voe have severely limited deployability, and therefore will be separated from the Air Force, yet other Airmen living with HIV have been retained and continue to serve.
15. If the military is not required to re-examine its irrational and arbitrary policies and practices regarding the deployability of Service members living with HIV and bring those policies into compliance with the Constitution and federal law, Roe, Voe, and others in the same situation will be forced out solely because of their HIV status—even though hundreds of individuals living with HIV, including Roe and Voe, have served honorably in the Armed Forces after being diagnosed with HIV.
16. At best, DoD and Air Force policies singling out Service members living with HIV for starkly different treatment are an unfortunate vestige of a time when HIV was untreatable and
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invariably fatal. These anachronistic policies are no longer justified in light of modern medical science. Whether the policies reflected animus at the time they originally were created, now that the original justification for them has been undermined, they currently constitute outright discrimination. When faced with other conditions or illnesses, each Service member is given due consideration that takes into account his or her circumstances and physical condition. By contrast, when Roe and Voe attempted to simply maintain the status quo and continue to serve in their present capacities while living with HIV, they faced ill-informed, categorical limitations on their deployability that will have the consequence of prohibiting them from serving at all.
17. Defendants’ purported justifications for discharging otherwise-fit Service members like Roe and Voe are supported by neither the law nor the facts. This case seeks to correct that injustice and prevent Roe, Voe, and others with HIV or who may acquire it in the future from being subjected to the same mistreatment.
JURISDICTION AND VENUE 18. This Court has jurisdiction over the subject matter of this action under 28 U.S.C. §§ 1331, 1343, and 2201–02. This case poses federal questions that arise under the U.S. Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06. 19. Venue is proper in the Eastern District of Virginia under 28 U.S.C. § 1391(b) and (e)(1). On information and belief, a substantial part of the events and omissions giving rise to these claims occurred in this district. 20. This court has personal jurisdiction over Defendants because their enforcement of the service restrictions for people living with HIV occurs within the Eastern District of Virginia.
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THE PARTIES A. Plaintiffs
21. Plaintiff Roe is a Staff Sergeant who has served in the Air Force since 2012. Roe proceeds under a pseudonym not only for reasons of medical privacy but also because of the stigma, discrimination, and common misconceptions associated with HIV.
22. Plaintiff Voe is a Senior Airman who has served in the Air Force since 2011. Voe proceeds under a pseudonym not only for reasons of medical privacy but also because of the stigma, discrimination, and common misconceptions associated with HIV.
23. Roe and Voe are members of Plaintiff OutServe-SLDN, Inc. 24. Plaintiff OutServe-SLDN, Inc., formed through the merger of OutServe and the Servicemembers Legal Defense Network, is a nationwide, non-partisan, non-profit, legal services, watchdog, and policy organization that represents the LGBTQ+ military community—Service members, veterans, civilian DoD, and their spouses and families—worldwide. The organization’s mission is to address and end—through litigation, policy advocacy, and education—all forms of unequal or unfair treatment against members of its community on the basis of sexual orientation, gender identity, or HIV status. 25. OutServe-SLDN is, in part, a membership organization, or the functional equivalent of a membership organization. It has well over 7,000 members—veterans, active-duty Service members, and civilian DoD workers throughout the world who identify as LGBTQ+ or are living with HIV—and more than 54,000 supporters. It operates more than 54 chapters worldwide, including 35 in the United States covering every region of the country. It has 20 additional special group forums, one of which is the “Positive Forum” for people living with HIV. These group forums are not just social groups: because Service members who are LGBTQ+ and/or
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living with HIV are minority groups that are still sometimes marginalized, stigmatized, or ostracized in the military, the chapters allow these Service members to establish emotional support networks and to exchange information that is important for career advancement and professional growth. The chapters also provide a direct link for Service members to access services and programs that OutServe-SLDN offers.
26. OutServe-SLDN provides pro-bono advocacy and legal services for members of the military living with HIV. Advocacy work includes working with Congress to change or approve legislation and regulations affecting Service members with HIV, as well as working directly with the DoD, the Secretary of Defense, and the service Secretaries on the same issues. Legal services work includes writing and submitting amicus briefs in cases involving HIV-related issues (e.g., United States v. Forbes, Court of Appeals for the Armed Forces Case No. 180304/NA); filing and litigating impact litigation to change Department of Defense policies; directly representing Service members with HIV in administrative-separation and court-martial proceedings; and providing cultural-competency assistance, education and information, and training to Judge Advocate General defense lawyers in all service branches.
27. In this action, OutServe-SLDN represents the interests of its members currently living with HIV, including Roe and Voe, as well as those who may acquire HIV in the future, and therefore are or will be adversely affected by the challenged regulations and policies.
B. Defendants 28. Defendant James N. Mattis is the Secretary of the Department of Defense. He leads
the DoD and is responsible for the administration and enforcement of the challenged policies and practices.
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29. Defendant United States Department of Defense is an executive branch department of the U.S. federal government comprising the office of the Secretary of Defense; the Joint Chiefs of Staff; the Joint Staff; the Departments of the Army, Navy, and Air Force; the unified and specified combatant commands; such other offices, agencies, activities, and commands as may be established or designated by the President or by law; and all offices, agencies, activities, and commands under any of their control or supervision. Under the direction of Secretary Mattis, the Department of Defense is also responsible for administration and enforcement of the Department’s service restrictions on people living with HIV.
30. Defendant Heather A. Wilson is the Secretary of the U.S. Air Force. She is the leader of the Department of the Air Force and is responsible for its regulations and the actions taken against Roe and Voe.
31. All Defendants are sued in their official capacities, and the counts below are alleged against the Defendants as enumerated therein.
BACKGROUND A. Regulatory Background
32. Several sets of regulations are relevant to active duty service members who are diagnosed with HIV: Department of Defense Instructions (“DoDIs”) DoDI 6490.07, Medical Conditions Usually Precluding Contingency Deployment (February 5, 2010); DoDI 6485.01, Human Immunodeficiency Virus (HIV) in Military Service Members (June 7, 2013); DoDI 1332.18, Disability Evaluation System (DES) (August 5, 2014); and DoDI 1332.45, Retention Determinations for Non-Deployable Service Members (July 30, 2018), as well as Air Force Instructions (“AFIs”) AFI 44-178, Human Immunodeficiency Virus Program (March 4, 2014, certified current June 28, 2016); AFI 10-403, Air Force Guidance Memorandum to Air Force
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Instruction 10-403, Deployment Planning and Execution (February 23, 2018); and AFI 48-122,
Deployment Health (revised August 18, 2014).
33. DoDI 6490.07, “Deployment-Limiting Medical Conditions for Service Members
and DoD Civilian Employees” describes the standard for assessing whether a medical condition is
deployment-limiting:
(1) The condition is not of such a nature or duration that an unexpected worsening or physical trauma is likely to have a grave medical outcome or negative impact on mission execution.
(2) The condition is stable and reasonably anticipated by the pre-deployment medical evaluator not to worsen during the deployment in light of physical, physiological, psychological, and nutritional effects of the duties and location.
(3) Any required, ongoing health care or medications anticipated to be needed for the duration of the deployment are available in theater within the Military Health System. Medication must have no special handling, storage, or other requirements (e.g., refrigeration, cold chain, or electrical power requirements). Medication must be well tolerated within harsh environmental conditions (e.g. heat or cold stress, sunlight) and should not cause significant side effects in the setting of moderate dehydration.
(4) There is no need for routine evacuation out of theater for continuing diagnostics or other evaluations. (All such evaluations should be accomplished before deployment.)
(5) In the case of civilian employees covered by The Rehabilitation Act of 1973, as amended, it is determined, based upon an individualized assessment, that the employee can perform the essential functions of the position in the deployed environment, with or without a reasonable accommodation, without causing undue hardship. In evaluating undue hardship, the nature of the accommodation and the location of the deployment must be considered. Further, the employee’s medical condition must not pose a significant risk of substantial harm to the employee or others taking into account the condition of the relevant deployed environment.
DoDI 6490.07, Sec. 4(b).
34. In Enclosure 3 to DoDI 6490.07, the DoD makes categorical deployability
determinations in the form of a list of conditions for which a waiver is required before a Service
member would be permitted to deploy.
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35. “A diagnosis of human immunodeficiency (HIV) antibody positive with the presence of progressive clinical illness or immunological deficiency” is included on the list in Enclosure 3.
36. On information and belief, Defendants require a waiver for Service members with a confirmed diagnosis of HIV to deploy, regardless of whether there is the “presence of progressive clinical illness or immunological deficiency.” Neither Roe’s nor Voe’s medical condition is characterized by “the presence of progressive clinical illness or immunological deficiency” beyond that required to confirm the accuracy of a positive HIV antibody test.
37. DoDI 6490.07 contemplates that Service members will be able to continue to serve despite restrictions on their deployability.
38. DoDI 6485.01 states that active-duty Service members are to be retained if they clear medical evaluations.
39. DoDI 6485.01, titled “Human Immunodeficiency Virus (HIV) in Military Service Members,” provides that “[a]n [active-duty] Service member with laboratory evidence of HIV infection will be referred for appropriate treatment and a medical evaluation of fitness for continued service in the same manner as a Service member with other chronic or progressive illnesses.” The Instruction presumes that some Service members will be “fit for duty” and “will be allowed to serve.”
40. DoDI 1332.18 (referenced in DoDI 6485.01) presumes that a return to duty is a possibility when a Service member is otherwise fit for duty.
41. DoDI 1332.45, the Deploy or Get Out (“DOGO”) Instruction, applies to Defendants’ assessments and determinations regarding the retention or separation of Service members living with HIV that are based on deployability.
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42. The DOGO Instruction states that “Service members with a medical condition that requires additional medical screening, or Combatant Command approval prior to deployment outside the continental United States, will be categorized as Deployable with Limitations. This includes, but is not limited to, conditions referred to in DoDI 6490.07 [“Deployment-Limiting Medical Conditions for Service Members and DoD Civilian Employees”].”
43. According to the DOGO Instruction, Service members classified as “Deployable with Limitations” may be retained for service despite limitations on their deployability.
44. HIV is a condition referred to in DoDI 6490.07. Therefore, according to Defendants’ own policies, people living with HIV should be classified as “Deployable with Limitations” and not separated.
45. Attachment 9 of AFI 44-178 directs retention for active-duty Service members living with HIV.
46. AFI 44-178, titled “Human Immunodeficiency Virus Program,” sets forth the Air Force’s procedures following a positive HIV test. Active-duty Airmen who test positive are first “counseled by a physician” about “the significance of a positive test,” “precautions to mitigate transmission,” and “prognosis.” They are also “administered an order to follow preventive medicine requirements.”
47. Under AFI 44-178, active-duty Airmen who test positive for HIV “must [then] undergo medical evaluation for the purpose of determining status for continued military service.” After an initial evaluation and return visit at six months, they are required to be tested “yearly thereafter” while they remain on active duty. This provision presumes Airmen living with HIV who are serving on active duty may continue to do so indefinitely.
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48. AFI 44-178 also provides that “HIV seropositivity alone is not grounds for medical separation or retirement for [active-duty Air Force] members.” Procedures for retention and separation are governed by an attachment to the Instruction providing that Airmen living with HIV must be retained as long as they “are able to perform the duties of their office, grade, rank and/or rating.” They “may not be separated solely on the basis of laboratory evidence of HIV infection.”
B. Treatment of HIV 49. The landscape of HIV treatment and prevention, the ramifications of an HIV
diagnosis, and the prognosis for people living with HIV have all changed dramatically since the virus was first identified in the 1980s.
50. In 1996, the advent of new antiretroviral medications to prevent the virus from replicating transformed the landscape of HIV treatment and prevention and radically shifted health outcomes for people living with HIV.
51. The effectiveness of these antiretroviral medications is measured by the reduction in the number of copies of the virus in a milliliter of a person’s blood, which is referred to as the “viral load.” While a person in the acute or secondary stage of infection could have a viral load of one million or more, a person in successful treatment will have a viral load of less than 200, which is considered “virally suppressed,” or a viral load of less than 48 to 50, which is referred to as an “undetectable” viral load.
52. With adherence to these medications, people living with HIV are restored to good health. Over time, researchers and clinicians have been able to refine the use of these medications to make treatment adherence easier and health outcomes even better. Though the side effects of the initial antiretroviral drugs were generally tolerable, researchers have developed new medications that have few or no discernible side effects for most people. The standard of care
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shifted to starting treatment with antiretroviral drugs almost immediately after diagnosis—a recognition that the benefits of treatment far outweighed any negative consequences of being on these medications.
53. Today, though still incurable, HIV is a chronic, manageable condition rather than the terminal diagnosis it once was. In fact, the average life span of a 25-year-old who is diagnosed in a timely fashion and provided appropriate treatment is only a few months shorter than that of a 25-year-old who does not have HIV.
54. Furthermore, medical researchers have now established that a person with a suppressed viral load is incapable of transmitting HIV. Even without viral suppression, contrary to popular belief, HIV is not easily transmitted. The Centers for Disease Control and Prevention (“CDC”) estimates that, in the absence of treatment or other preventive measures, such as condom use, the risk of HIV transmission through a single act of receptive anal sex—the riskiest sexual activity—is approximately 1.38 percent. The per-act risk of transmission for other sexual activities is between zero and 0.08 percent. However, with adherence to HIV medications and the resulting viral suppression, the risk of transmission is essentially zero for any sexual activity. Antiretroviral treatment therefore not only dramatically improves personal health outcomes, but also improves public health outcomes by reducing the rate of transmission and the number of new cases.
55. Transmission of HIV is extremely rare outside of the context of sexual activity, sharing of injection drug equipment, blood transfusion, needle sticks, or perinatal exposure (including breastfeeding). For all other activities—including biting, spitting, and throwing of body fluids—the CDC characterizes the risk as “negligible” and further states that “HIV transmission through these exposure routes is technically possible but unlikely and not well documented.” The
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theoretical possibility of HIV transmission in these other contexts is eliminated entirely by adherence to medications and the viral suppression that results.
56. In sum, HIV is not the same disease it was once perceived to be. But despite the tremendous breakthroughs in the treatment and prevention of HIV, people living with HIV continue to be subjected to stigma, ostracism, and discrimination rooted in misconceptions, fear, and ignorance that are deeply rooted in our society’s collective consciousness.
C. Roe’s Impending Discharge from the Air Force 57. From a young age, Roe dreamed of serving in the military, as his parents had. He
enlisted in the Air Force in June 2012 at the age of 18. 58. The Air Force has recognized Roe’s leadership ability and work ethic. When he
was a Senior Airman stationed in Germany, he was placed in charge of a Small Arms Light Weapons Program—a position normally reserved for a non-commissioned officer. Roe was promoted to Senior Airman earlier than expected, which enabled him to test for Staff Sergeant sooner than the average Airman, and he was successful in achieving a non-commissioned officer rank upon his first test. He enjoys serving as a mentor to the Airmen he supervises and has sought out additional opportunities for leadership and responsibility, such as training to become a certified Sexual Assault Victim Advocate when he was stationed in South Korea.
59. In October 2017, Roe was diagnosed with HIV while on active duty and immediately started a course of antiretroviral treatment (“ART”). The first time he was tested after beginning ART, his viral load was undetectable. It has remained so ever since. Roe’s current ART treatment regimen consists of a single pill taken by mouth once a day. The pills are stored in ordinary pill bottles, do not require any special storage conditions, and are refilled every 90 days like many other long-term medications.
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60. Even though Roe’s doctors have never recommended that his work be restricted in any way, he is no longer considered worldwide-deployable under DoDI 6490.07 and AFI 44-178, solely on account of his HIV status.
61. As a result of his HIV status, AFI 44-178 required that Roe undergo a standard medical evaluation process to determine whether he would be retained in or separated from the Air Force. See AFI 44-178, ¶ 2.4, at p. 5.
62. Roe’s commanding officer wrote an evaluation recommending retention on the grounds that Roe was fit to serve and was “a valued team member.” Roe’s primary care doctor also recommended that he be returned to duty.
63. Despite these recommendations, on February 22, 2018, Roe’s local Informal Physical Evaluation Board (“IPEB”) concluded that his “condition is not compatible with the fundamental expectations of military service,” because it is “subject to sudden and unpredictable progression and will result in deployment restrictions.” The IPEB recommended that Roe be discharged.
64. The IPEB’s determination was contrary to current medical science, under which the progression of Roe’s condition is predictable: as long as he continues his once-daily medication regimen, which is required by the Air Force as a condition of continued service and as Roe has done since his diagnosis, his condition is not expected to progress.
65. Roe appealed to the Formal Physical Evaluation Board (“FPEB”) of the Air Force, located at Randolph Air Force Base near San Antonio, Texas. In preparation for the FPEB hearing, Roe’s commanding officers and colleagues wrote letters of support requesting that he be retained. Lt. Col. Jason Okulicz, Director of the HIV Medical Evaluation Unit at San Antonio Military
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Medical Center, stated that there was “[no] medical reason to explain why [Roe] would not be returned to duty.”
66. Roe traveled from his duty station to San Antonio to attend the FPEB hearing. He was dismissed from the hearing in less than 30 minutes, however.
67. Although Roe had been told it would likely take weeks or months for the FPEB to reach its determination, he learned just three hours after the hearing concluded that the FPEB had affirmed the IPEB’s decision. Reasoning that Roe’s condition “place[d an] increased burden on others within his career field” because he was no longer worldwide-deployable, the FPEB recommended that he be discharged with a 10 percent disability rating.
68. Roe appealed to the SAF. On November 9, 2018, he received a memorandum dated November 7, 2018, from John K. Vallario, Deputy Director of the SAF Personnel Council, which is part of the Air Force Personnel Board (“AFPB”). The memorandum informed Roe that the AFPB had rejected his appeal and directed that he be discharged.
69. The SAF acknowledged that Roe had been “compliant with all treatment, is currently asymptomatic, and has an undetectable human immunodeficiency virus (HIV) viral load.” The SAF further noted that Roe is “able to perform all in garrison duties, has passed his most recent fitness assessment without any component exemptions, and his commander strongly supports his retention.”
70. Nevertheless, the memorandum stated that Roe was “unfit for continued military service” because his condition precludes him from being designated worldwide-deployable without a waiver. Accordingly, the SAF concluded that Roe is to be discharged with a disability rating of 10 percent.
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71. Roe is currently awaiting notice of his date of separation from the Air Force, which will most likely occur in early- to mid-2019.
72. In the meantime, Roe continues support of the Air Force’s mission as a logistics specialist, in his regular capacity and with no physical restrictions.
73. Roe’s physicians do not foresee any restrictions on his work as a result of his condition, which is under control; he is virally suppressed and will remain so as long as he continues his ART.
74. Roe wishes to continue to serve with pride and would like to be classified as worldwide-deployable. He intends to make the Air Force his lifelong career and aspires to commission as an officer. But for the medical evaluation process that began with his HIV diagnosis, Roe would have re-enlisted for an additional term of service in the Air Force. However, the more than year-long evaluation and appeals process described above prevented him from doing so. His term of service originally expired almost six months ago but has been extended twice during the pendency of the medical evaluation process.
75. The regulations restricting Roe’s deployability do not accurately reflect his health status or ability to serve. As Roe’s case illustrates, Defendants’ regulations preventing Service members living with HIV from deploying do not further any legitimate governmental interest. Instead, they have the effect of separating able-bodied, committed individuals from a future dedicated to the Armed Services.
76. Roe is currently awaiting notice from the Air Force Personnel Center (“AFPC”) of his separation date. This notice will arrive any day.
D. Voe’s Impending Discharge from the Air Force 77. Voe enlisted in the Air Force in 2011, at the age of 19, and trained to become a
munitions systems technician. 18

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78. Voe was deployed for six months to the Middle East to support the Air Force’s mission there. Upon his return, he sought and received special approval from the Wing Commander to cut short his “dwell time,” during which returning Service members are nondeployable to give them an opportunity to rest and enjoy the comforts of home, to return to the Middle East a few months early for a second deployment.
79. In March 2017, Voe was diagnosed with HIV while on active duty. He began ART within two weeks, and by August 2017 his viral load was undetectable. It has remained undetectable ever since.
80. Voe’s ART regimen consists of two pills taken at the same time, once per day. The pills are stored in ordinary pill bottles, do not require any special storage conditions, and are refilled every 90 days like many other long-term medications.
81. Even though Voe’s doctors have never recommended restricting his work in any way as a result of his diagnosis, he is no longer worldwide-deployable under DoDI 6490.07 and AFI 44-178 on account of his HIV status.
82. As a result of his HIV status, AFI 44-178 required that Voe undergo a standard medical evaluation process to determine whether he would be retained in or separated from the Air Force. His commanding officer called Voe a “valuable [Air Force] asset” and recommended his retention. Voe’s doctors offered the opinion that his medical condition—including his HIV status—did not affect his ability to do his job.
83. In October 2017, Voe was notified that his local IPEB recommended that he be discharged from the Air Force based on his HIV status. This decision was medically unsound, as Voe’s condition has been under control since shortly after his diagnosis and can be expected to remain so for as long as he is in treatment, as required under AFI 44-178.
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84. Voe appealed the IPEB’s recommendation to the FPEB and went on temporary duty to travel to San Antonio to attend the December 2017 hearing. The hearing lasted only 20 minutes. After just half an hour of post-hearing deliberation, the FPEB recommended that Voe be separated based on his HIV status.
85. Voe appealed the FPEB’s recommendation to the SAF. On November 15, 2018, Voe received a memorandum dated November 7, 2018 from John K. Vallario of the AFPB denying his appeal and directing on behalf of the SAF that he be discharged.
86. The SAF reached this decision even though the memorandum acknowledged that Voe was “compliant with all treatment, is currently asymptomatic, and has an undetectable human immunodeficiency virus (HIV) viral load.” The memorandum also noted that Voe is “able to perform all in garrison duties, has passed his most recent fitness assessment without any component exemptions, and his commander strongly supports his retention.” Even so, the SAF concluded that because Voe’s condition precludes him from deploying worldwide without a waiver, it renders him “unfit for continued military service.” Accordingly, the SAF directed that Voe be discharged with a disability rating of 10 percent.
87. Consequently, Voe must separate from the Air Force even though he is able to and wishes to continue to serve in his regular capacity with no physical restrictions. Voe would like to be classified as worldwide-deployable.
88. Before his HIV diagnosis, Voe intended to re-enlist for another term of service in the Air Force. However, the year-long evaluation and appeals process described above prevented him from doing so. His term of service originally expired almost a year ago but has been extended three times during the pendency of the medical evaluation process.
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89. Voe is currently awaiting notice from the AFPC of his separation date. This notice

will arrive any day. His separation could occur as soon as mid-February 2019.

* * *

90. Plaintiffs are capable and willing to deploy to any geographic location across the

globe and wish to be classified as worldwide-deployable. Predetermined and arbitrarily-applied

categorical bars rooted in anachronistic biases and stigmas should not interfere. Categorical bars

requiring a special waiver in order for Service members living with HIV to deploy violate the

federal Constitution and the Administrative Procedures Act.

91. In the alternative, to the extent that any limitations on the deployment of Service

members living with HIV, in general, or Plaintiffs, in particular, are appropriate, determinations

that they should be separated from service based solely on deployment limitations resulting from

their HIV status alone violate the Constitution and the Administrative Procedures Act.

CLAIMS FOR RELIEF

Equal Protection

APA – re Discharge
COUNT I

Violation of Equal Protection Under the Fifth Amendment’s Due Process Clause (Based on HIV Status) Against All Defendants

92. All prior paragraphs are incorporated as if fully set forth here.

93. The Fifth Amendment to the United States Constitution provides that no person

shall be deprived of life, liberty, or property without due process of law. The Due Process Clause

includes within it a prohibition against the denial of equal protection by the federal government,

its agencies, its officials, or its employees.

94. Defendants’ policies limiting the deployability of Airmen and other Service

members living with HIV discriminate impermissibly against people living with HIV, both on their

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face and as applied, and preclude otherwise-qualified individuals from further service based solely on their HIV status.
95. Defendants routinely permit similarly situated individuals who do not have HIV, including but not limited to people with comparable chronic, manageable conditions, to deploy worldwide and to continue to serve.
96. Defendants have determined that Roe and Voe are not worldwide-deployable and, therefore, are to be discharged solely on the basis of their HIV status.
97. Although some individuals living with HIV may qualify under certain statutory schemes as having a disability or as being disabled, discrimination targeting people based on their HIV-positive status warrants a more rigorous degree of scrutiny than was described in City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).
98. Government discrimination against individuals living with HIV bears all the indicia of a suspect classification requiring heightened scrutiny by the courts.
a. People living with HIV have suffered through a unique history of misinformation, stigma, ostracism, and discrimination for decades, and continue to suffer such discrimination to this day.
b. People living with HIV are a discrete and insular group and lack the political power to protect their rights through the legislative process. A small minority of the overall population is currently living with HIV. People living with HIV fear to disclose their status, rarely choose to live openly with HIV, and continue to lack representation at any level of the federal government. For the first decade of the HIV epidemic, the needs of people living with and at higher risk for HIV were ignored and/or not adequately resourced by federal, state, and local governments. Even today, many
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people living with HIV do not have access to care, and there are aspects of the criminal law that unfairly single out and discriminate against people living with HIV. c. Particularly in light of dramatic medical advances—the benefits of which have only recently been fully understood and documented—a person’s HIV status bears no relation to that person’s ability to contribute to society. d. Even with medical treatment rendering their viral load undetectable, a person cannot change their HIV status. While HIV is treatable and manageable, it is not curable. There is no available course of treatment that a person could undergo to change their HIV status as a condition of equal treatment. 99. Defendants’ disparate and unfavorable treatment of Plaintiffs Roe and Voe, as well as other individuals living with HIV, deprives them of their right to equal dignity and treats them as second-class citizens in violation of the Constitution’s guarantee of equal protection. 100. Now that HIV can be managed like other chronic medical conditions, there is no longer a valid justification for this disparate treatment between Airmen living with HIV and Airmen who are not. Nor is the classification at issue—HIV status—adequately tailored to serve any governmental interest. This disparate treatment is not even rationally related to a legitimate governmental interest, let alone serving an important or compelling governmental interest, or being substantially related or narrowly tailored to such an interest. Thus, the policies discriminating against Airmen with HIV cannot withstand any form of scrutiny and are invalid.
COUNT II Violation of the APA Against Wilson as to Deployability and Separation Determinations as Contrary to Law 101. All prior paragraphs are incorporated as if fully set forth here.
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102. Plaintiffs have no adequate or available administrative remedies and/or have exhausted them; in the alternative, any effort to obtain an administrative remedy would be futile.
103. Defendant failed to abide by DoD and Air Force regulations in deciding that Roe and Voe should be separated. Had the Air Force followed applicable regulations, Roe and Voe would have been retained, returned to duty, and allowed to deploy worldwide.
104. DoDI 6490.07 sets forth general standards for determining the deployability of Service members with potentially deployment-limiting medical conditions. (DoDI 6490.07, Sec. 4(b)).
105. In Enclosure 3 to DoDI 6490.07, the DoD makes categorical deployability determinations in the form of a list of conditions for which a waiver is required before a Service member would be permitted to deploy.
106. “A diagnosis of human immunodeficiency virus (HIV) antibody positive with the presence of progressive clinical illness or immunological deficiency” is included on the list in Enclosure 3.
107. On information and belief, Defendant requires a waiver for Service members with a confirmed diagnosis of HIV to deploy, regardless of whether there is “the presence of progressive clinical illness or immunological deficiency” beyond that required to confirm an HIV diagnosis.
108. Neither Roe’s nor Voe’s medical condition is characterized by “the presence of progressive clinical illness or immunological deficiency” beyond that required to confirm an HIV diagnosis. Both Roe and Voe are HIV positive, but have a suppressed or undetectable viral load, and are otherwise healthy.
109. The application of 6490.07 to both Roe and Voe, classifying them as nondeployable without a waiver, is therefore contrary to law in violation of the APA.
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110. Defendant also failed to abide by the DoD’s own regulations in deciding that Roe and Voe should be separated. Had Defendant followed the DoD’s own regulations, Roe and Voe would have been retained and returned to Duty.
111. Specifically, Defendant’s determinations that Roe and Voe should be separated is contrary to DoD regulations requiring that Service members living with HIV be classified as “Deployable with Limitations” and not separated because of non-deployability. Defendant’s determinations are also contrary to DoD representations about the prospective application of DoDI 1332.45.
112. On information and belief, DoDI 1332.45, the DOGO Instruction, applied to Defendant Wilson’s assessments and determinations regarding the separation of Roe and Voe insofar as those assessments centered on deployability restrictions.
113. The DOGO Instruction states that “Service members with a medical condition that requires additional medical screening, or Combatant Command approval prior to deployment outside the continental United States, will be categorized as Deployable with Limitations. This includes, but is not limited to, conditions referred to in DoDI 6490.07.”
114. DoDI 6490.07 lists HIV “with progressive clinical illness or immunological deficiency” as one of these conditions.
115. According to the DOGO Instruction, Service members classified as “Deployable with Limitations” are to be retained, not separated based on deployability restrictions.
116. Though it should have been part of Defendant Wilson’s assessments and determinations regarding the retention or separation of Roe and Voe, insofar as those assessments centered on deployability restrictions, the DOGO Instruction (DoDI 1332.45) was not referenced
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nor its application (or lack of applicability) explained in the decisions ordering the separation of Roe and Voe.
117. Through the acts and omissions alleged above, the decisions to separate Plaintiffs from service based on purported restrictions to their deployability as a result of their HIV status were not guided by DoDI 1332.45 and are therefore arbitrary, capricious, an abuse of discretion and/or otherwise not in accordance with law.
118. Defendant further failed to abide by the Air Force’s own regulation in deciding that Roe and Voe should be separated. Had Defendant Wilson abided by this regulation, Roe and Voe would have been retained and returned to duty.
119. Specifically, Defendant’s determination that Roe and Voe should be separated is contrary to AFI 44-178, which sets forth the Air Force’s procedures following a positive HIV test.
120. Though it should have been part of Defendant Wilson’s assessments and determinations regarding the retention or separation of Roe and Voe insofar as those assessments centered on deployability restrictions, AFI 44-178 was not referenced nor its application (or lack of applicability) explained in the decisions ordering the separation of Roe and Voe.
121. AFI 44-178 provides that “HIV seropositivity alone is not grounds for medical separation or retirement for [active-duty Air force] members.” They “may not be separated solely on the basis of laboratory evidence of HIV infection.” Rather, procedures for retention and separation are governed by an attachment to the Instruction providing that Airmen living with HIV may be retained if they “are able to perform the duties of their office, grade, rank and/or rating.”
122. Roe’s and Voe’s commanding officers confirmed their ability to continue performing their duties. Roe’s and Voe’s doctors imposed no work restrictions as a result of their
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diagnoses. Therefore, Roe and Voe “are able to perform the duties of their office, grade, rank and/or rating.”
123. Roe and Voe were separated because they were classified as non-deployable. But Roe and Voe were classified as non-deployable not because there is any physical or medical reason they cannot deploy, but solely because they are HIV seropositive. Roe and Voe were therefore separated “solely on the basis of laboratory evidence of HIV infection.”
124. The decisions to separate Roe and Voe are, in this way, contrary to the provisions of AFI 44-178, and therefore arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance with law.
125. Through the actions and omissions above, Defendant Wilson violated the APA, 5 U.S.C. § 706(2)(A).
COUNT III Violation of the APA Against Wilson as to Deployability and Separation Determinations as Arbitrary and Capricious or an Abuse of Discretion 126. All prior paragraphs are incorporated as if fully set forth here. 127. Plaintiffs have no adequate or available administrative remedies and/or have exhausted them; in the alternative, any effort to obtain an administrative remedy would be futile. 128. Defendant Wilson applied the Air Force’s own regulations inconsistently in discharging Roe and Voe. Had she applied the regulations consistently, Roe and Voe would have been retained and returned to duty, like other similarly situated Airmen living with HIV. 129. The November 7, 2018 memoranda notifying Roe and Voe of the SAF’s discharge decisions in both of their cases state that their HIV diagnoses “preclude[] [them] from being able to deploy worldwide without a waiver and render[] [them] ineligible for deployment to the Central
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Command (CENTCOM) Area of Responsibility (AOR), where the majority of Air Force members are expected to deploy,” and that “[d]eployability is a key factor in determining fitness for duty.”
130. This decision was different from other recent SAF decisions involving similarly situated Airmen living with HIV.
131. In a memorandum dated January 22, 2018, the SAF directed that an Airman living with HIV who had been placed on a two-medication ART regimen and “remained symptom free and with an undetectable viral load” since March 2016 would be retained and returned to duty. This was so even though the SAF acknowledged that the Airman “may require an Assignment Limitation Code ‘C’ and, if so, [she] would require waivers to deploy.”
132. Reaching such different conclusions in cases involving similarly situated Airmen is arbitrary and capricious and an abuse of discretion.
133. Further, the decisions to separate Roe and Voe, regardless of the SAF’s decisions in similar cases, are on their own arbitrary and capricious, and an abuse of discretion, because the SAF failed to consider the advances that have been made in the treatment and prevention of HIV, and the physical and medical conditions of Roe and Voe, and ultimately made decisions that run counter to the evidence that individuals living with HIV are physically and medically capable of deploying.
134. For these reasons, Roe’s and Voe’s classifications as non-deployable and impeding discharges on the basis of their HIV status are arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance with law.
135. Through the actions and omissions above, Defendant Wilson violated the APA, 5 U.S.C. § 706(2)(A).
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COUNT IV Violation of the APA Against Defendants United States Department of Defense and Mattis as to DoDI 6490.07 136. All prior paragraphs are incorporated as if fully set forth here. 137. Plaintiffs have no adequate or available administrative remedies and/or have exhausted them; in the alternative, any effort to obtain an administrative remedy would be futile. 138. On information and belief, Defendants’ classification of Roe and Voe as unable to deploy was based, at least in part, on DoDI 6490.07. 139. Yet the provisions of DoDI 6490.07 that limit the deployability of Service members living with HIV are based on outdated thinking that does not comport with the current state of HIV medical science. 140. Defendants’ failure to update DoDI 6490.07, as it relates to the deployability of Service members living with HIV, to reflect the current state of HIV medical science, is arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance with law. 141. Through the actions and omissions above, Defendants DoD and Mattis violated the APA, 5 U.S.C. § 706(2)(A).
COUNT V Violation of the APA Against Defendant Wilson as to AFI 10-403, AFI 48-122, and AFI 44-178 142. All prior paragraphs are incorporated as if fully set forth here. 143. Plaintiffs have no adequate or available administrative remedies and/or have exhausted them; in the alternative, any effort to obtain an administrative remedy would be futile. 144. AFI 10-403, AFI 48-122, and AFI 44-178, to the extent that they limit the deployability of Airmen living with HIV, are based on outdated thinking that does not comport
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with the current state of HIV medical science. Because of their failure to comport with current medical science, these provisions are indefensible.
145. These regulations as they currently stand, and Defendant’s failure to update these regulations, are arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance with law.
146. Through the actions and omissions above, Defendants violated 5 U.S.C. §706(2)(A).
REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: A. Preliminarily enjoin Defendant Wilson from involuntarily separating Roe and Voe
during the pendency of this matter and through final judgment; B. Enter a declaratory judgment, pursuant to 28 U.S.C. § 2201, that Roe’s and Voe’s
impending discharges are arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance with law; C. Enter a declaratory judgment, pursuant to 28 U.S.C. § 2201, that Roe’s and Voe’s impending discharges are unconstitutional; D. Vacate and set aside the decisions to discharge Roe and Voe; E. Enter an injunction directing the Department of Defense to permit Plaintiff Roe to reenlist and to continue to serve as a Staff Sergeant; or, in the alternative, requiring the Air Force to re-evaluate Roe’s eligibility for continued service in light of any order of this Court enjoining enforcement of the regulations identified below; F. Enter an injunction directing the Department of Defense to permit Plaintiff Voe to reenlist and to continue to serve as a Senior Airman; or, in the alternative, requiring the
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Case 1:18-cv-01565-LMB-IDD Document 1 Filed 12/19/18 Page 31 of 32 PageID# 31 Air Force to re-evaluate Plaintiff Voe’s eligibility for continued service in light of any order of this Court enjoining enforcement of the regulations identified below;
G. Enjoin the Department of Defense from applying or enforcing the HIV-specific provision on the list of “Medical Conditions Usually Precluding Contingency Deployment” (DoDI 6490.07, Enclosure 3, subsection (e)(2)), thereby allowing Service members with HIV to be considered deployable as a default and evaluated, if clinically indicated, on a case-by-case basis under DoDI 6490.07, subsection 4(b);
H. Enjoin the Air Force from applying or enforcing the HIV-specific portions of AFI 10-403, AFI 48-122, and AFI 44-178 in a manner that limits the deployability of Airmen diagnosed with HIV while on active duty;
I. Award Plaintiffs reasonable costs and attorneys’ fees; and J. Award such further relief as this Court deems appropriate.
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Dated: December 19, 2018
Peter Perkowski* OUTSERVE-SLDN, INC. 1133 19th St. NW Washington, DC 20036 T: (800) 538-7418 PeterP@outserve.org
Scott A. Schoettes* Kara N. Ingelhart* LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC. 105 W. Adams Street, Suite 2600 Chicago, IL 60603 T: (312) 663-4413 SSchoettes@lambdalegal.org KIngelhart@lambdalegal.org

Respectfully submitted,
/s/ Andrew R. Sommer Andrew R. Sommer (Virginia Bar No. 70304) Lauren Gailey* Laura J. Cooley** (Virginia Bar No. 93446) WINSTON & STRAWN LLP 1700 K Street, NW Washington, DC 20006 T: (202) 282-5000 F: (202) 282-5100 ASommer@winston.com LGailey@winston.com LCooley@winston.com
Julie A. Bauer* WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL 60601 T: (312) 558-5600 JBauer@winston.com

Attorneys for Plaintiffs *Pro hac vice application forthcoming ** Application for admission forthcoming

 
 Case 1:18-cv-01565-LMB-IDD Document 72 Filed 02/15/19 Page 1 of 55 PageID# 3173

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

RICHARD ROE, et al.,
Plaintiffs,
V.
PATRICK M. SHANAHAN, in his official capacity as Acting Secretary of Defense, et al.,
Defendants.

)

)

)

)

)

)

I: l 8-cv-1565 (LMB/IDD)

)

)

)

)

)

MEMORANDUM OPINION Plaintiffs Richard Roe ("Roe") and Victor Voe ("Voe") 1 are members of the United

States Air Force who have been diagnosed with the human immunodeficiency virus ("HIV") and

who face imminent separation from service. Roe and Voe-together with plaintiff OutServe-

SLDN, Inc. ("OutServe"), an organization representing the interests of veterans, active-duty

servicemembers, and civilian employees of the U.S. Department of Defense ("DoD") who are

LGBTQ+ or HIV positive-bring this action for declaratory and injunctive relief against the

Secretary of Defense, the Secretary of the Air Force, and the DoD. Plaintiffs' complaint contains

five counts. Count I, asserted against all defendants, alleges that defendants' policies with respect

to the deployment and separation of HIV-positive servicemembers, on their face and as applied

to Roe and Voe, violate the equal protection component of the Fifth Amendment's Due Process

Clause. Counts II and III, which are asserted only against the Secretary of the Air Force, allege

that the decisions to separate Roe and Voe were arbitrary and capricious, an abuse of discretion,

1 Roe and Voe are proceeding pseudonymously. To protect their identities, all documents containing identifying information have been filed under seal, and redacted versions have been made part of the public record.

Case 1:18-cv-01565-LMB-IDD Document 72 Filed 02/15/19 Page 2 of 55 PageID# 3174
and contrary to law in violation of the Administrative Procedure Act ("APA"). Finally,
Counts IV and V allege that several of defendants' policies "are based on outdated thinking that
does not comport with the current state of HIV medical science" and that defendants' failure to update those policies amounts to an independent violation of the APA.2
Plaintiffs have moved for a preliminary injunction preventing Roe and Voe, along with similarly situated servicemembers, from being discharged3 because of deployment restrictions
due to their HIV status. Plaintiffs argue that injunctive relief is necessary to preserve the status
quo pending final disposition of their constitutional and administrative law claims. Defendants
oppose plaintiffs' motion and have moved to dismiss the complaint for lack of subject matter
jurisdiction, arguing that plaintiffs' claims are premature and nonjusticiable; that plaintiffs are
not entitled to injunctive relief; and that the scope of any relief granted must be limited to Roe and Voe.4 The parties have fully briefed and argued their motions.5 For the reasons stated below,
2 Count IV is asserted against the DoD and the Secretary of Defense; Count V is asserted against the Secretary of the Air Force. 3 The terms "discharge" and "separation" are used interchangeably throughout this Opinion. 4 Defendants' memoranda have mostly focused on the named plaintiffs and have not devoted significant attention to OutServe, the institutional plaintiff asserting the interests of its HIVpositive members who, like Roe and Voe, face imminent separation. Plaintiffs, too, have blurred the lines between Roe's and Voe's claims on the one hand and OutServe's on the other. For the most part, the parties' motions may be resolved by focusing on Roe and Voe; however, where appropriate, reference is also made to similarly situated members of OutServe. 5 The parties' substantive written submissions consist of the Memorandum in Support of Plaintiffs' Motion for a Preliminary Injunction [Dkt. No. 34] ("Pis.' Memo."); the Memorandum in Support of Defendants' Motion to Dismiss and Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction [Dkt. No. 50] ("Defs.' Memo. & Opp'n"); Plaintiffs' Opposition to the Motion to Dismiss and Reply in Support of Their Motion for a Preliminary Injunction [Dkt. No. 60] ("Pis.' Opp'n & Reply"); and the Reply in Support of Defendants' Motion to Dismiss [Dkt. No. 70] (Defs.' Reply."). Oral argument was held on February 15,2019.
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defendants' motion to dismiss will be denied, and plaintiffs' motion for a preliminary injunction

will be granted in part and denied in part.

A. Factual Background6

I. BACKGROUND

1. Richard Roe Roe enlisted in the Air Force in 2012. Comp!. for Declaratory & Injunctive Relief [Dkt.

No. I] ("Comp!.") ,I 57. He enjoyed early signs of success, including being promoted to Senior

Airman ahead of schedule and successfully testing for Staff Sergeant, a noncommissioned officer
rank, on his first try. Id. ,r 58. Roe hoped to make the Air Force his lifelong career and one day commission as an officer. Id. ,r 74.

Roe's upward trajectory was halted in October 2017, when he was diagnosed with HIV
while on active duty. Comp!. ,r 59. He began antiretroviral treatment immediately. Id. That

treatment requires him to take one pill per day; the pills are stored in an ordinary pill bottle, and

his prescription is refilled every 90 days. Id. Ever since he began treatment, Roe's "viral load"-

the number of copies of the HIV virus per milliliter of his blood-has registered as
"undetectable."7 Id. ,r,i 51, 59. He alleges that because of his successful treatment, he remains physically and mentally capable of continuing to serve in the Air Force. See id. ,r,r 72-75.

6 The following facts are drawn from the allegations in the complaint and from official documents appended to the parties' memoranda, which the Court may consider without converting defendants' motion to dismiss into one for summary judgment. Kerns v. United States, 585 F.3d 187, 192-93 (4th Cir. 2009). 7 An untreated person with HIV may have a viral load in the thousands or even above one million. A viral load under 200 is classified as "virally suppressed"; a load under 48 to 50 is
considered "undetectable." See Comp!. ,r 51.
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Because Roe had tested positive for HIV, Air Force regulations required that he "undergo [a] medical evaluation for the purpose of determining [his] status for continued military service." Air Force Instruction ("AFI") 44-178, § 2.4, at A298-99.8 In late November 2017, he received a Duty Limiting Condition Report restricting his deployability pending a Medical Evaluation Board's ("MEB") determination of his fitness for duty. A568. The MEB was convened in January 2018. A554. Roe's commanding officer submitted an impact statement to the MEB affirming that despite Roe's diagnosis, he could "perform all duties without work-arounds, restrictions or limitations." A556. The commanding officer's recommendation was unambiguous: "[Roe] is a valued team member. Recommend retention." A557. The commanding officer made clear that his recommendation would not change even if Roe were to be put on an assignment limitation code that could restrict his deployability. Id. Several other servicemembers likewise submitted letters on Roe's behalf. A562-66. Also before the MEB was a physician assistant's report prepared in January 2018 after a physical examination of Roe. The physician assistant wrote that although Roe would require ongoing antiretroviral treatment, he was asymptomatic and complication-free. A586-88. In response to a question asking whether "any of [Roe's] HIV-related illnesses or complications affect his ... ability to work," the physician assistant selected "No." A588. An earlier report by an Air Force physician, also part of the record before the MEB, recommended that Roe be returned to active duty. A574.
The MEB did not order Roe retained and returned to duty. Instead, it opted to refer Roe's case to an Informal Physical Evaluation Board ("IPEB"). A554. The IPEB issued its findings and
8 References in the form "A_" are to the documents attached to defendants' motion to dismiss. Some of those documents were filed under seal [Dkt. Nos. 55-58], and publicly available redacted versions have been filed as well [Dkt. No. 67].
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recommendation on February 22, 2018. A549. Although the IPEB's report "acknowledge[d] the commander's recommendation for retention and statement that [Roe] is able to perform his daily in-garrison duties," it also asserted that Roe's condition "is subject to sudden and unpredictable progression"9 and would "result in deployment restrictions that prevent him from being fully worldwide qualified." A550. As a result, the IPEB concluded that Roe's HIV status was "unfitting" and "[in]compatible with the fundamental expectations of military service." Id. The IPEB recommended that Roe be discharged from the Air Force. A549.
Roe appealed the IPEB's decision to the Formal Physical Evaluation Board ("FPEB").
Comp1. ,r 65. As part of the formal record of his appeal, Roe submitted a letter from the director
of the HIV medical evaluation unit and infectious disease service at a military medical center. In the letter, the director opined that Roe "has no physical limitation that would prevent him from conducting his duties" and recommended that he be returned to active duty. A484. Roe also submitted letters from fellow servicemembers in support of his retention, a recent fitness report reflecting good scores, and commendations he had received during his time in service. See A482-548. A formal hearing was held before the FPEB in early April 2018. A481. The hearing lasted less than 30 minutes, and the FPEB affirmed the IPEB's decision roughly three hours
later. Compl. ,r,r 66-67. The FPEB, like the IPEB before it, recognized that Roe was successfully
being treated and was asymptomatic. A481. It also acknowledged the commanding officer's recommendation that Roe be retained as well as Roe's "record of performance during his five years of military service and the numerous letters of support for his retention." Id. Nonetheless, the FPEB stated that under military regulations, Roe's HIV status was "disqualifying for
9 The IPEB did not point to any evidence or documents in the record before it to support this assertion.
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deployment" to the Central Command ("CENTCOM") area of responsibility, 10 which "would have [a] significant effect on his career progression and place [an] increased burden on others within his career field." Id. Accordingly, the FPEB concluded that Roe's condition "is unfitting for continued military service" and reaffirmed that he should be discharged. A480-81 (emphasis in original).
Roe appealed the FPEB' s findings and recommendation to the Secretary of the Air Force, arguing that his condition "is simple to manage and does not place an undue burden on the Air Force." A471. He also argued that the FPEB's analysis was inconsistent with applicable Air Force regulations, which provide that "HIV seropositivity alone is not grounds for medical separation" and that HIV-positive servicemembers "who are able to perform the duties of their office, grade, rank and/or rating ... may not be separated solely on the basis of laboratory evidence of HIV infection." 11 Id. Finally, he challenged the assertion that his condition rendered him nondeployable, asserting that under the applicable regulations, HIV renders a servicemember nondeployable only "with the presence of progressive clinical illness or immunological deficiency" 12-both of which he claimed were absent in his case. A471-72. Counsel was also appointed to represent Roe before the Secretary. Roe's counsel argued that the IPEB and the FPEB were "feign[ing] fealty to the DoD (and by extension Air Force) policy on retaining HIV[-]infected members, but us[ing] the bludgeon of world-wide qualification to effectively bash the policy aside." A465.
°1 CENTCOM is "a theater-level Unified Combatant Command with responsibility for military
operations across North Africa, Central Asia, and the Middle East, including Iraq and Afghanistan, within the Department of Defense." A423. 11 See AFI 44-178, § 2.4.1, at A299; id. § A9. l. l, at A329. 12 See Department of Defense Instruction ("DoDI") 6490.07, enclosure 3, § e(2), at A97.
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The deputy director of the Secretary of the Air Force Personnel Council ("SAFPC"),
acting on authority delegated by the Secretary of the Air Force, rejected Roe's appeal on
November 7, 2018. The decision, which refers to Roe as "the member," states in relevant part:
[Roe's] case was considered by the Air Force Personnel Board (AFPB), which made a recommendation regarding its disposition. The following rationale is provided for the final decision in this case. The Board considered the member's contention that he is fit and should be returned to duty. The Board noted the member has been compliant with all treatment, is currently asymptomatic, and has an undetectable [HIV] viral load. Additionally, he is able to perform all in[-]garrison duties, has passed his most recent fitness assessment without any component exemptions, and his commander strongly supports his retention. However, the Board noted the member's condition precludes him from being able to deploy world-wide without a waiver and renders him ineligible for deployment to the [CENTCOM] Area ... , where the majority of Air Force members are expected to deploy. Deployability is a key factor in determining fitness for duty and the Board recognized the member belongs to a career field with a comparatively high deployment rate/tempo. Therefore, based on his inability to deploy and considering his current career point, the Board determined he is unfit for continued military service and shall be discharged with severance pay.
A460. Roe was advised that he had the "right to pursue further appeal" by applying to the Air
Force Board for Correction of Military Records ("AFBCMR"). A462. He has not done so.
Roe is scheduled to be discharged from the Air Force on March 28, 2019. Pis.' Memo.
Ex. A [Dkt. No. 44] ,r 7. His term of service had been set to expire in mid-2018 but was twice
extended as he underwent the medical evaluation and administrative appeals process. Compl.
,r 74. But for his impending discharge date, Roe's term of service (considering the extensions he received) would have expired on June 25, 2019. Pis.' Memo. Ex. A [Dkt. No. 44] ,r 6. He alleges
that he intended to reenlist for an additional term of service but was prevented from doing so
because of the separation process. Id.
2. Victor Voe
Voe enlisted in the Air Force in 2011. CompI. ,r 77. He has served in several countries overseas and in 2014 was deployed to the Middle East. Id. ,r 78. Like Roe, Voe is dedicated to
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service in the Air Force. Indeed, after his first period of service in the Middle East, Voe voluntarily cut short the "dwell time" between deployments so that he could return for a second tour ahead of schedule. Id.
Voe was diagnosed with HIV in March 201 7. Comp1. 1 79. He immediately began
antiretroviral treatment, and since August 2017 his viral load has remained undetectable. Id. Voe takes two pills, at the same time, per day; those pills are stored in ordinary pill bottles and are refilled every 90 days. Id. 180. Voe claims that because of the treatment, he is asymptomatic and wishes to continue serving.
After his diagnosis, Voe's case proceeded in lockstep with Roe's. Voe's deployability was restricted, and his case was referred to an MEB for initial evaluation. See A768. Voe's commanding officer prepared an impact statement for the MEB in which she stated that Voe was "fully capable of performing any activity/function" necessary for his career field. A763. The commanding officer endorsed Voe unreservedly: "Member superiorly performs all primary duties and has also volunteered with enthusiasm for several on/off base organizations/ function[s]. He is overall a valuable [Air Force] asset. Retain." A764. The commanding officer indicated that her recommendation would not change even if Voe were to be placed on an assignment limitation code that could limit his deployability. Id.
The MEB found that Voe's HIV status made his "qualifications ... for worldwide duty questionable" and referred his case to an IPEB. A761. The IPEB acknowledged the recommendation ofVoe's commanding officer but found that Voe's
medical condition prevents him from reasonably performing the duties ofhis office, grade, rank or rating; represents a medical risk to the health of [Voe] or the health/safety of others with continued service; is subject to progression; requires frequent follow-up with a medical specialist; and limits [Voe's] ability to meet mobility requirements.
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A758. 13 Accordingly, the IPEB concluded that Voe's condition was "unfitting" and
"incompatible with the rigors of military service" and recommended that he be discharged.
A757-58.
Voe appealed to an FPEB. His formal hearing before the FPEB lasted only twenty
minutes. Compl. ,r 84. Less than an hour after the hearing had concluded, the FPEB affirmed the
IPEB's recommendation that Voe be discharged. Id. The FPEB acknowledged that Voe's
"condition is welled [sic] controlled" and that he was asymptomatic. A756. But the FPEB found
that because Voe would need "frequent follow-up[s] with a specialist"14 and had been classified
as nondeployable, his HIV condition made him "unfitting for continued military service." Id.
(emphasis in original).
Voe appealed to the SAFPC, which (acting on authority delegated by the Secretary of the
Air Force) rejected the appeal on November 7, 2018-the same day Roe's appeal was rejected. 15
A748. The reasons given for denying Voe's appeal were identical to those provided in Roe's case:
[Voe's] case was considered by the Air Force Personnel Board (AFPB), which made a recommendation regarding its disposition. The following rationale is provided for the final decision in this case. The Board considered the member's contention that he is fit and should be returned to duty. The Board noted the member has been compliant with all treatment, is currently asymptomatic, and has an undetectable [HIV] viral load. Additionally, he is able to perform all in[-]garrison duties, has passed his most recent fitness assessment without any component exemptions, and his commander strongly supports his retention. However, the Board noted the member's condition precludes him from being able to deploy world-wide without a waiver and renders him ineligible for deployment to the
13 The IPEB did not identify any scientific evidence or documents in the record before it to support these conclusions. 14 Again, the FPEB did not cite evidence in the record before it supporting this assertion. 15 It appears the SAFPC disposed of many HIV-positive servicemembers' appeals on the same day and with virtually identical statements of reasons. In addition to Roe and Voe, at least two other members of OutServe had their appeals rejected that day. See Pis.' Memo. Ex. Cl [Dkt. No. 40-1]; id. Ex. C4 [Dkt. No. 40-4].
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[CENTCOM] Area ... , where the majority of Air Force members are expected to deploy. Deployability is a key factor in determining fitness for duty and the Board recognized the member belongs to a career field with a comparatively high deployment rate/tempo. Therefore, based on his inability to deploy and considering his current career point, the Board determined he is unfit for continued military service and shall be discharged with severance pay. A747. Voe was advised of the right to appeal to the AFBCMR, A749, but has not done so. Voe's term of service was set to expire in early 2018 but was extended during the
pendency of his physical evaluation and administrative appeals process. Comp1. ,r 88. Voe has
been unable to apply for reenlistment for another term of service, id., and is set to be discharged
from the Air Force on February 25, 2019, Pis.' Memo. Ex. B [Dkt. No. 44-7] ,r,r 20-21. But for
Voe's impending discharge, his term of service (taking into account the extensions he received)
would extend until June 2019. Id. ,r 20.
3. The Human Immunodeficiency Virus {HIV) HIV epidemiology has undergone drastic changes since the disease first came to the
public's attention in the 1980s. Compl. ,r 49. The first sea change involved the means of
treatment. Beginning in the mid- l 990s, antiretroviral medications were developed that, if taken
consistently, can effectively reduce a patient's viral load to zero. Id. ,r,r 50-51. Those medications
have negligible side effects and can prevent the type of immunological deficiencies and opportunistic infections typically associated with HIV and the Acquired Immunodeficiency
Syndrome ("AIDS"). Id. ,r,r 51-52. HIV remains incurable but is no longer a death sentence.
When diagnosed promptly and treated appropriately, it "is a chronic, manageable condition" that
does not substantially reduce a person's life expectancy. Id. ,r 53.
Another major development in the science and study of HIV relates to methods of transmission. HIV is not as easily transmitted as many people believe..For example, the highestrisk sexual activity--engaging in an act of receptive anal sex with an untreated HIV-positive
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person without using a condom or other means of prophylaxis-carries a risk of transmission of
only 1.38%. Compl. ,r 54. Other sexual activities pose transmission risks ranging from 0% to
0.08%. Id. Apart from sexual activities, only sharing needles, blood transfusions, and perinatal
exposure pose a nonnegligible risk of transmission. Id. ,r 55. According to the Centers for
Disease Control and Prevention ("CDC"), HIV transmission through other means such as biting or accidental contact with bodily fluids "is technically possible but unlikely and not well documented." Id. Moreover, when an individual's viral load has been effectively suppressed by
antiretroviral treatment, the risk of transmission is essentially reduced to zero. Id. ,r,r 54-55.
B. Regulatory and Administrative Background An intricate web of regulations, policies, and procedures govern the Armed Forces's treatment of servicemembers diagnosed with HIV. Understanding how those sources interact is crucial to analyzing the parties' arguments in this litigation.
I . DoD Regulations Department of Defense Instruction ("DoDI") 6490.07 is designed to ensure that servicemembers "are medically able to accomplish their duties in deployed environments." DoDI 6490.07, § I, at A87. The instruction sets out standards governing under what circumstances a medical condition will restrict a servicemember's deployability: DoD personnel with existing medical conditions may deploy . . . if all of these conditions are met: (1) The condition is not of such a nature or duration that an unexpected worsening or physical trauma is likely to have a grave medical outcome or negative impact on mission execution. (2) The condition is stable and reasonably anticipated by the pre-deployment medical evaluator not to worsen during the deployment in light of physical, physiological, psychological, and nutritional effects of the duties and location.
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(3) Any required, ongoing health care or medications anticipated to be needed for the duration of the deployment are available in theater within the Military Health System. Medication must have no special handling, storage, or other requirements (e.g., refrigeration, cold chain, or electrical power requirements). Medication must be well tolerated within harsh environmental conditions (e.g. heat or cold stress, sunlight) and should not cause significant side effects in the setting of moderate dehydration. (4) There is no need for routine evacuation out of theater for continuing diagnostics or other evaluations. (All such evaluations should be accomplished before deployment.) ... Id. § 4(b), at A89. A trained healthcare provider, in assessing whether a servicemember is deployable under these guidelines, must consider whether the condition "would put the individual at increased risk of injury or illness" or would be "likely to significantly worsen in the deployed environment." Id. enclosure 2, § 2, at A93. DoDI 6490.07 also identifies certain medical conditions that categorically prevent individuals from deploying unless a waiver is granted. DoDI 6490.07, § 4(c), at A89. The listed conditions are divided into several types, including those that affect a servicemember's ability to receive immunizations or wear protective equipment, id. enclosure 3, § a, at A96; those that would require ongoing care or impair duty performance in a manner inconsistent with the nature or duration of the deployment, id. § b, at A96-97; those that cause sudden incapacitation, id. § c, at A97; pulmonary, sensory, cardiovascular, and mental-health disorders, id. §§ d, f-h, at A9798; and infectious diseases, which are defined to include "[a]ctive tuberculosis or known bloodborne diseases that may be transmitted to others in a deployed environment" and "[a] diagnosis of human immunodeficiency (HIV) antibody positive with the presence of progressive clinical illness or immunological deficiency." Id. § e, at A97. DoDI 6485.01 establishes the DoD's policies and procedures for "the identification, surveillance, and management of members of the Military Services infected with HIV." DoDI
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6485.01, § 1, at A79. HIV-positive individuals are ineligible "for appointment, enlistment, pre-appointment, or initial entry training for military service." Id. § 3(a). Each military department must screen servicemembers periodically for evidence of HIV infection. Id. § 3(b). Active-duty servicemembers who test positive for HIV must be "referred for appropriate treatment and a medical evaluation of fitness for continued service in the same manner as a Service member with other chronic or progressive illnesses," and anyone "determined to be fit for duty will be allowed to serve in a manner that ensures access to appropriate medical care." Id. enclosure 3, § 2(c), at A85. Those found to be unfit for duty must be "separated or retired" pursuant to the Disability Evaluation System (''DES"). See id. § 2(e).
DoDI 1332.18 governs the DES, which is a multilevel system under the supervision of the secretary of each of the military departments. DoDI 1332.18, enclosure 3, § l(a), at A15. The DES comprises (i) the MEB, a board of two or more physicians responsible for reviewing "all available medical evidence" and referring servicemembers with conditions "that will prevent them from reasonably performing the duties of their office, grade, rank, or rating" to the physical evaluation board process, id.§ 2(a)-(b), (d), at A16; (ii) the IPEB, which is composed of two to three military personnel and which is responsible for making "initial findings and recommendations," id.§ 3(a)-(b), (d)(l), at A18-19; and (iii) the FPEB, which is composed of (at minimum) a military officer, a medical officer, and a line officer, and which is responsible for conducting a formal hearing 16 in the event a servicemember challenges the IPEB's
16 Servicemembers appearing before the FPEB have a number of rights, among which are the right to be represented by appointed counsel; the right to introduce witnesses, conduct crossexamination, and present evidence; and the right to access all records received by the FPEB before, during, and after the hearing. DoDI 1332.18, enclosure 3, § 3(h), at A 19-20.
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determinations, id. § 3(c), (d)(2). The instruction also requires each military department to
provide appellate review of the FPEB's findings and recommendation. Id. § 3(/), at A21.
Finally, DoDI 1332.45-sometimes referred to as the "deploy or get out," or "DOGO,"
instruction, 17 ~, Compl. 1 41-establishes the Armed Forces-wide policy that "[t]o maximize
the lethality and readiness of the joint force, all Service members are expected to be deployable."
DoDI 1332.45, § l.2(a), at A62. Servicemembers who are deemed nondeployable for more than
12 consecutive months will be evaluated for retention, referral into the DES, or processing for
administrative separation. Id. § l .2(b). DoDI 1332.45 tempers this seemingly categorical rule in several ways. It gives the secretary of each military department the discretion to retain
nondeployable servicemembers if doing so is found to be "in the best interest of the Military Service." Id.§ 2.4(b)(l), at A64. 18 Additionally, "Service members with a medical condition that
requires additional medical screening, or Combatant Command approval prior to deployment
outside the continental United States, will be categorized as Deployable with Limitations." Id.
§ 3.3, at A66. Medical conditions triggering the "deployable with limitations" classification
include those "referred to in DoDI 6490.07," id.-which, as discussed above, identifies conditions, including HIV under certain circumstances, that preclude deployment without a waiver. 19
17 DoDI 1332.45 cancelled and replaced an earlier memorandum issued in February 2018 by the Office of the Under Secretary of Defense for Personnel and Readiness. See A59. Many felt that under the terms of the February 2018 memorandum, all servicemembers living with HIV would
be classified as nondeployable and subject to automatic separation. See Compl. 1 12.
18 The secretary also has discretion to initiate immediate separation processing, even if the servicemember in question has not been nondeployable for 12 consecutive months, if "the Military Service determines there is a reasonable expectation that ... the Service member will not become deployable" in that time period. DoDI 1332.45, § 2.4(b)(3), at A64. 19 DoDI 1332.45 does not otherwise define or explain the significance of the classification "deployable with limitations." An August 2018 report prepared by the Office of the Under Secretary of Defense and sent to Congress clarifies that "members with HIV infection may be considered deployable with limitations" because "[a]ll Services currently permit HIV positive
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2. Air Force Regulations Each military department has its own set of regulations and policies with respect to the treatment of HIV-positive servicemembers. The Air Force's main policy is set out in AFI 44178, which implements DoDI 6485.01 with respect to the "identification, surveillance, and administration" of Air Force members diagnosed with HIV. A294. HIV-positive individuals may not enlist in the Air Force. AFI 44-178, § 2.2.1, at A298. Active-duty servicemembers who contract HIV after enlisting "must undergo medical evaluation for the purpose of determining status for continued military service." Id. § 2.4. Testing positive for HIV does not automatically trigger discharge: "HIV seropositivity alone is not grounds for medical separation or retirement." Id. § 2.4.1, at A299. But servicemembers living with HIV are limited to assignment within the continental United States, Alaska, Hawaii, or Puerto Rico, and may not be deployed beyond those territorial limits absent a waiver. See id. § 2.4.2. Attachment 9 to AFI 44-1 78 sets out the Air Force's policy on the retention or separation of servicemembers diagnosed with HIV. It echoes the instruction's clear mandate, providing that servicemembers "who are able to perform the duties of their office, grade, rank and/or rating ... may not be separated solely on the basis oflaboratory evidence of HIV infection." Id.§ A9.l.l, at A329. Instead, HIV-positive servicemembers are evaluated for retention or separation in accordance with the Air Force's DES. See id.§ A9.2.l. Those who are retained are given an appropriate assignment limitation code and are returned to duty. Id. § A9. l .2. The Air Force has released additional guidance documents on the treatment of HIVpositive servicemembers. For years, "nearly all cases of asymptomatic HIV resulted in a return to
Service members to deploy for purposes other than combat or a contingency operation, or to be assigned for duty in certain overseas locations, subject to receipt of a waiver." A385.
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duty." A416. That changed in 2017, when the Air Force issued a memorandum stating that any asymptomatic HIV-positive servicemember would be medically evaluated and possibly referred to the DES. A341. The memorandum reiterates AFI 44-178's policy that "[a]symptomatic HIV alone is not unfitting for continued service." Id. The Air Force reaffirmed that policy in a memorandum issued in June 2018, A338, and provided that all HIV-positive members would be evaluated for continued service in the same manner "as any Airman with a chronic and/or progressive disease," id. Under the terms of the 2018 memorandum, no servicemember may be referred into the DES unless specific criteria are met. Id. Those criteria are set out in DoDI 1332.18:
[M]edical authorities will refer eligible Service members into the DES who: (1) Have one or more medical conditions that may, individually or collectively, prevent the Service member from reasonably performing the duties of their office, grade, rank, or rating . . . ; (2) Have a medical condition that represents an obvious medical risk to the health of the member or the health or safety of other members; or (3) Have a medical condition that imposes unreasonable requirements on the military to maintain or protect the Service member. DoDI 1332.18, enclosure 3, app. 1, § 2(a), at A26. Most recently, in September 2018, the Air Force reemphasized that servicemembers with asymptomatic HIV are to be "retained or separated on a case by case basis" based on the factors listed in DoDI 1332.18. A339.
II. DEFENDANTS' MOTION TO DISMISS Defendants have moved to dismiss plaintiffs' complaint on the ground that subject matter jurisdiction is lacking. First, they argue that plaintiffs have failed to exhaust administrative remedies, rendering this lawsuit premature. Second, they contend that plaintiffs' claims raise nonjusticiable questions of military policymaking committed solely to the discretion of the executive branch. Finally, they argue that the plaintiffs lack standing to seek relief.
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Under Rule 12(b)(l) of the Federal Rules of Civil Procedure, an action must be dismissed if the court lacks subject matter jurisdiction. The plaintiff, as the party asserting jurisdiction, bears the ultimate burden of proving such jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). If "a complaint simply fails to allege facts upon which subject matter jurisdiction can be based[,] ... all the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule l 2(b)(6) consideration." Id. But in the event of a factual dispute over the jurisdictional allegations in the complaint, the court may consider evidence outside the complaint "without converting the pro_ceeding to one for summary judgment," id., and "the presumption of truthfulness normally accorded a complaint's allegations does not apply," Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017) (citation omitted).
A. Exhaustion of Remedies Defendants first argue that in failing to appeal to the AFBCMR before filing their complaint, plaintiffs have attempted to "bypass" intraservice remedies "to obtain premature review in federal court." Defs.' Memo. & Opp'n 7. Generally, plaintiffs seeking to challenge military policy or decisions must exhaust "available intraservice corrective measures." Williams v. Wilson, 762 F.2d 357, 359 (4th Cir. 1985) (quoting Mindes v. Seaman, 453 F.2d 197,201 (5th Cir. 1971)). Like all exhaustion requirements, this rule helps to avoid "premature interruption of the administrative process," McKart v. United States, 395 U.S. 185, 194 (1969), and allows "interested parties [to] obtain notice of the claims and have the potential to resolve disputes more quickly and inexpensively than may typically be accomplished through litigation," United States v. Unisys Corp., 178 F. Supp. 3d 358, 374 (E.D. Va. 2016) (citing Sydnor v. Fairfax County, 681 F.3d 591,593 (4th Cir. 2012)). Plaintiffs respond by arguing that they are
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not required to pursue any additional administrative remedies, that an appeal to the AFBCMR
would be futile, and that the burdens of requiring further exhaustion here would far outweigh the
benefits. Plaintiffs have the better argument.
At the outset, it must be emphasized that defendants do not rely on an explicit statutory
exhaustion requirement.20 Instead, they rely on a judge-made doctrine developed in response to
the unique nature of claims involving military policy. That distinction is significant. Where
Congress has adopted an explicit exhaustion regime, courts may not "add unwritten limits onto
the[] rigorous textual requirements." Ross v. Blake, 136 S. Ct. 1850, 1857 (2016). But "judge-
made exhaustion doctrines, even if flatly stated at first, remain amenable to judge-made
exceptions." Id.; see McKart, 395 U.S. at 193 ("The doctrine of exhaustion of administrative
remedies ... is, like most judicial doctrines, subject to numerous exceptions."). Deciding
whether to enforce a judicially created exhaustion requirement is a highly fact-sensitive inquiry,
20 Plaintiffs seek declaratory and injunctive relief against defendants for what they allege are violations of the Constitution and the APA. Because the APA waives the federal government's sovereign immunity with respect to claims for prospective relief, see 5 U.S.C. § 702, and authorizes courts to set aside agency action that is "contrary to constitutional right, power, privilege, or immunity," id. § 706(2)(B), plaintiffs' constitutional claims may be subsumed within the APA framework. But cf. John F. Preis, In Defense of Implied Injunction Relief in Constitutional Cases, 22 Wm. & Mary Bill Rts. J. 1, 52-53 (2013) (arguing that federal courts retain equitable powers "to imply injunctive relief in constitutional cases" even where the APA "fails to provide a plaintiff with a remedy" (citation omitted)). And "where the APA applies, an appeal to 'superior agency authority' is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review." Darby v. Cisneros, 509 U.S. 137, 154 (1993) (emphasis omitted). Although it is a statute that empowers the AFBCMR to correct military records, see 10 U.S.C. § 1552(a)(l) ("The Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice."), that provision's language is purely permissive and does not evince a congressional intent to make appeal to the AFBCMR a mandatory precursor to judicial review. Cf. Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016) (discussing the mandatory language requiring exhaustion in 42 U.S.C. § 1997e(a)).
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"requir[ing] an understanding of its purposes and of the particular administrative scheme involved." McKart, 395 U.S. at 193. If the burdens of enforcing an exhaustion requirement seriously outweigh the benefits in a particular case, that requirement may be excused.21
Although defendants cite several cases to support their exhaustion argument, plaintiffs correctly point out that those cases are distinguishable insofar as they involved parties who sought access to federal court at the first sign of disagreement with a military decision. See Guerra v. Scruggs, 942 F.2d 270, 272-73 (4th Cir. 1991) (involving a plaintiff who sued to prevent his discharge for cocaine use and intoxication without having availed himself of either of the available administrative review mechanisms); Williams, 762 F.2d at 358-59 (involving a plaintiff who after receiving a notice that he would be evaluated for separation filed suit in federal court "[b]efore any administrative follow-up on the notice of review had occurred"). In both cases, the lawsuit posed a genuine risk of preempting the agency's deliberative processes and wasting crucial resources, and accordingly the policy concerns underlying the exhaustion doctrine were at their apex.
Those concerns are diminished to the vanishing point in this case. Roe and Voe did not seek judicial review without having given the Air Force a meaningful opportunity to examine its policies and decisions. To the contrary, they presented their claims to a complex, tiered administrative review process-one that involved medical evaluations, written submissions, and formal hearings-culminating in an extensive administrative record and final written decisions by the SAFPC. See A460 ("The following rationale is provided for the final decision in this
21 In that sense, the exhaustion-of-intraservice-remedies requirement operates as a prudential limitation on the exercise ofjurisdiction rather than as a true subject-matter jurisdictional limitation. The Fourth Circuit has described that species of requirement as a matter of "comity." See McDonald v. Centra, Inc., 946 F.2d 1059, 1063 (4th Cir. 1991) (citation omitted).
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case."); A747 (same); see also AFI 36-3212, §§ 5.1-.9 (setting out procedures for the SAFPC's "final review and disposition" of a servicemember's appeal (capitalization altered)). Indeed, an official whose affidavit defendants submitted characterized the SAFPC "as the decision authority for a wide array of personnel decisions made by the Air Force" and "as, effectively, t~e final appeal authority for Airmen evaluated by the DES prior to their separation from Active Duty." A420. Thus, Roe and Voe substantially exhausted the administrative review mechanisms available to them, a fact which undercuts defendants' argument that this lawsuit is premature.
Although Roe and Voe stopped short of applying to the AFBCMR, plaintiffs have persuasively demonstrated that requiring appeals to the AFBCMR as a prerequisite to pursuing this lawsuit would be inappropriate. First, the AFBCMR's ambit is relatively limited; it serves to interpret "the content and effect of military regulations" and decide "whether [a] military tribunal's decision was in error or unjust." Navas v. Gonzalez Vales, 752 F.2d 765, 769-70 (1st Cir. 1985). In accordance with that mission, it can reverse an order of separation, edit a servicemember's military record, and issue back pay, see 10 U.S.C. § 1552(a), (c); however, it cannot adjudicate a claim that the Air Force's policies and regulations themselves are unconstitutional or otherwise unlawful. That an appeal to the AFBCMR could not address the heart of plaintiffs' claims changes the exhaustion calculus. Defendants respond that there is no categorical rule in this circuit exempting constitutional or facial claims from exhaustion requirements. See, e.g., Nationsbank Corp. v. Herman, 174 F.3d 424, 429 (4th Cir. 1999). But "that exhaustion can be useful even where a constitutional issue is presented," Volvo GM Heavy Truck Corp. v. U.S. Dep't of Labor, 118 F.3d 205,215 (4th Cir. 1997) (emphasis added), does not mean it is automatically required.
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Additional considerations weigh in favor of excusing Roe and Voe from having to appeal to the AFBCMR before proceeding in federal court. Parties may be exempt from judicially imposed exhaustion requirements upon showings of futility or irreparable injury. See McDonald v. Centra, Inc., 946 F.2d 1059, 1063 (4th Cir. 1991); see also Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 12-13 (2000) ("Doctrines of 'ripeness' and 'exhaustion' contain exceptions, however, which exceptions permit early review when, for example, the legal question is fit for resolution and delay means hardship, ... or when exhaustion would prove futile" (internal quotation marks and citations omitted)). Although excusal of exhaustion on these grounds is a "high bar," Haramalis v. Lengyel, No. 1:l 7-cv-946, 2018 WL 476156, at *4 (E.D. Va. Jan. 18, 2018), plaintiffs have cleared that bar. The MEB, IPEB, FPEB, and finally the SAFPC assessed Roe's and Voe's cases in exactly the same way. They recognized that Roe and Voe were being successfully treated, were asymptomatic, and had the support of their commanding officers; nonetheless, they concluded that Roe and Voe could not be deployed to CENTCOM and thus were unfit for continued military service. Because of that consistent and unyielding line of reasoning, Roe and Voe face imminent discharge from the Air Force. Defendants have steadfastly defended that reasoning in this litigation. Nothing suggests that the AFBCMR would depart from the conclusions of multiple Air Force decisionmakers and conclude that Roe's and Voe's discharge determinations contained an "error" to "correct" or an "injustice" to "remove." Exhaustion need not be required where it would constitute an empty formalityparticularly where, as here, the plaintiffs face imminent separation from the branch of the armed forces in which they have served honorably and in which they want to continue serving.
Further, under Air Force regulations, the AFBCMR may only issue nonbinding recommendations, AFI 36-2603, §§ 2.1, 4.10, and it is the Secretary of the Air Force (or her
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designee) who must decide whether to act, see id. §§ 1.1, 5. Yet the SAFPC's determinations that Roe and Voe should be discharged were expressly made on behalf of the Secretary of the Air Force. See A461, A747. Accordingly, even if the AFBCMR were to agree with Roe's and Voe's arguments, plaintiffs' ability to secure relief would still depend on the same decisionmaker who has already rejected those arguments.
Finally, an appeal to the AFBCMR may take as long as 18 months, see 10 U.S.C. § 1557(b), if not longer, see Pis.' Opp'n & Reply Ex. C [Dkt. No. 60-3] 2-4 (explaining that the boards for correction of military records have experienced notable increases in the time to decision). For example, sergeant Nick Harrison-the plaintiff in a companion case before this Court, see Harrison v. Shanahan, No. I: l 8-cv-641-petitioned the Army Board for Correction of Military Records for relief from the decision preventing his commissioning as a JAG officer due to his HIV status. Harrison did not receive the board's decision-a rejection of his appeal-for nearly two years. Pis.' Opp'n & Reply Ex. C [Dkt. No. 60-3] 3-4. The Court may take the decisional timeline into account in deciding whether to require further exhaustion for plaintiffs who, like Roe and Voe, allege imminent and immeasurable harm stemming from the challenged actions. 22
Deciding whether exhaustion is required is a matter of discretion. It requires a careful balancing between respect for internal administrative decisionmaking processes on the one hand
22 As is the case with most of their arguments, defendants focus entirely on Roe and Voe and do not address the exhaustion analysis as to OutServe, which has identified four additional activeduty members of the Air Force who face imminent discharge because of HIV-related deployment restrictions. All four of those servicemembers are identically situated to Roe and Voe in that they pursued unsuccessful appeals of those decisions up through the SAFPC. See Pis.' Memo. & Opp'n Ex. C [Dkt. No. 40] 3-8; id. Exs. C-1 to -4. Accordingly, the Court's analysis with respect to Roe and Voe equally applies to the members on whose behalf OutServe is asserting associational standing.
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and an individual's ability to protect his rights in federal court on the other. Under the circumstances of this case, no further exhaustion of intraservice remedies is required.
B. Military Controversy Defendants next argue that plaintiffs' complaint must be dismissed for failure to present a justiciable controversy. Defendants contend that under the balancing framework established by the Fifth Circuit in Mindes, 453 F.2d 197, and adopted by the Fourth Circuit in Williams, 762 F.2d 357, their policies with respect to servicemembers living with HIV-and the application of those policies to Roe and Voe-are altogether immune from judicial scrutiny. "The military is a specialized society separate from civil society with laws and traditions of its own [developed] during its long history." Schlesinger v. Councilman, 420 U.S. 738, 757 (1975) (alteration in original) (internal quotation marks and citation omitted). The military's separate status and unique institutional interests have often made courts reluctant "to secondguess judgments requiring military expertise" or to "substitute court orders for discretionary military decisions," lest judicial interference "stultify the military in the performance of its vital mission." Mindes, 453 F.2d at 199. Yet neither can the military be wholly free from judicial scrutiny. See id.; see also, e.g., Emory v. Sec'y of the Navy, 819 F.2d 291,294 (D.C. Cir. 1987) (per curiam) ("The military has not been exempted from constitutional provisions that protect the rights of individuals. It is precisely the role of the courts to determine whether those rights have been violated." (citation omitted)). To accommodate this tension between deference and judicial review, courts developed a balancing framework designed to capture under what circumstances it is appropriate to adjudicate claims related to military policies. Under that framework, the court must first be satisfied that the plaintiff has appropriately exhausted intraservice remedies and has alleged a
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violation of the Constitution, applicable statutes, or military regulations. Mindes, 453 F.2d at 201. If that showing is made, the court must then balance four factors:
1. The nature and strength of the plaintiffs challenge to the military determination.... 2. The potential injury to the plaintiff if review is refused. 3. The type and degree of anticipated interference with the military function. Interference per se is insufficient since there will always be some interference when review is granted, but if the interference would be such as to seriously impede the military in the performance of vital duties, it militates strongly against relief. 4. The extent to which the exercise of military expertise or discretion is involved. Courts should defer to the superior knowledge and experience of professionals in matters such as promotions or orders directly related to specific military functions. Guerra, 942 F.2d at 276 (alteration in original) (quoting Mindes, 453 F.2d at 201-02). How those factors should be balanced in each case is left to the trial court's discretion. See Mindes, 453 F.2d at 202. To begin, it is unclear whether the Mindes balancing test remains good law. In a recent decision, a panel of the Fourth Circuit called its viability into question. See Aikens v. Ingram, 811 F.3d 643,648 & n.5 (4th Cir. 2016). Since adopting the test in 1985, see Williams, 762 F.2d at 359-60, the Fourth Circuit has applied it only once in a published opinion, in 1991, see Guerra, 942 F.2d at 276.23 Other courts of appeals have rejected the rule on the theory that it "erroneously 'intertwines the concept ofjusticiability with the standards to be applied to the merits of the case."' Knutson v. Wis. Air Nat'l Guard, 995 F.2d 765, 768 (7th Cir. 1993) (quoting Dillard v. Brown, 652 F.2d 316,323 (3d Cir. 1981)). Those courts that have questioned
23 The Fourth Circuit has applied the rule in several unpublished opinions. See Downey v. U.S. Dep't of the Army, 685 F. App'x 184, 191-93 (4th Cir. 2017), cert. denied, 138 S. Ct. 645 (2018); Wilt v. Gilmore, 62 F. App'x 484, 487-88 (4th Cir. 2003) (per curiam); Scott v. Rice, No. 92-2463, 1993 WL 375664, at *2 (4th Cir. Sept. 23, 1993) (per curiam).
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Mindes have done so for good reason: Its four-factor test, which weighs the plaintiffs case and
injuries against military independence and expertise, speaks more to the merits and the
appropriate scope of equitable relief than the threshold matter ofjusticiability.
Nonetheless, even assuming the Mindes test remains good law and applies to this
dispute,24 it does not require dismissal here. To be sure, whether a servicemember is fit for
continued military service is a question that implicates military discretion, and one in which
courts have little expertise. Yet other factors weigh heavily in favor of finding this dispute to be
justiciable. For one, plaintiffs' claims are not weak. At this preliminary stage, they have made a
strong showing that defendants' policies are irrational, based on a flawed understanding of HIV
epidemiology, and inconsistently applied. Although Roe and Voe advance as-applied claims
limited to the application of the military's polices in their cases, they (along with OutServe) also
seek relief on behalf of a broader class of HIV-positive servicemembers, all of whom are now
confronted with the polices that plaintiffs claim are unlawful. The far-reaching nature of these
24 A conceptually distinct issue is whether Mindes applies to all claims related to military policy or only a subset of those claims. When the Fourth Circuit adopted Mindes, it did so in the context of a claim that the West Virginia Army National Guard had failed to follow its own regulations in ordering that the plaintiff be separated after 20 years of service. See Williams, 762 F.2d at 358. Likewise, Guerra involved a challenge to the procedures through which the Army had decided to discharge the plaintiff for cocaine use and alcohol intoxication. See 942 F.2d at 27172. The Fourth Circuit has suggested that whatever the viability of the test with respect to "internal personnel matters such as challenges to convening of retention boards and military discharge," Mindes is "an ill fit" where the plaintiff has alleged "unconstitutional, ultra vires actions" by the defendant. Aikens, 811 F.3d at 648. Although that distinction has intuitive appeal, it may be difficult to square with Mindes itself, which involved constitutional claims and clearly anticipated its application to constitutional questions, see 453 F.2d at 201-02. In fact, Aikens may have more to do with rejecting Mindes in suits for damages under 42 U.S.C. § 1983 than with any administrative-constitutional distinction. In any event, it is unclear on which side of Aikens' s line this case would fall. Plaintiffs have advanced facial and as-applied claims. Some are constitutional; others are more administrative in nature. And plaintiffs seek equitable relief, not damages. Because at least some of plaintiffs' claims fall within the Guerra and Williams line of cases, the Court will apply the Mindes test.
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claims surely counsels in favor ofjudicial review. For the reasons explained below, plaintiffs have also made a strong demonstration that they face imminent, serious cognizable injuries because of defendants' policies. This is not one servicemember's protest of a technical glitch in the military's decisionmaking process; it is a challenge claiming that HIV-positive servicemembers, who wish to serve their country on equal terms with others, are being irrationally and arbitrarily swept from the ranks. Finally, the gravamen of plaintiffs' complaint is that they have not been evaluated in the personalized, case-by-case manner guaranteed by the applicable regulations, but rather face discharge because of an untailored determination that they are not deployable beyond the continental United States. By requesting only that military decisionmakers evaluate whether they are fit for service with more careful attention to their individual characteristics, plaintiffs give significant breathing space to "the exercise of military expertise [and] discretion," Guerra, 942 F.2d at 276 (citation omitted). For these reasons, this case presents a justiciable controversy properly subject to judicial review.
C. Standing The federal judicial power extends only to "Cases" and "Controversies." U.S. Const. art. III, § 2. To satisfy the case-or-controversy requirement, a plaintiff must have standing-that is, he must have "alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498-99 (1975) (citation omitted). Standing "is built on separation-of-powers principles" and "prevent[s] ~he judicial process from being used to usurp the powers of the political branches." Clapper v. Amnesty Int'l USA, 568 U.S. 398,408 (2013). Accordingly, the standing inquiry is "especially rigorous when reaching the merits of the
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dispute would force [the court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." Raines v. Byrd, 521 U.S. 811, 819-20 (1997).
The test for Article III standing is well established: Th[e] "irreducible constitutional minimum" of standing requires: (1) that the plaintiff have suffered an "injury in fact"-an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of--the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it will be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 167 (1997) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). Plaintiffs bear the burden of establishing standing to support each of their claims. South Carolina v. United States, 912 F.3d 720, 726 (4th Cir. 2019). They must satisfy that burden "in the same way as any other matter on which [they] bear[] the burden of proof' during each successive stage of the litigation. Lujan, 504 U.S. at 561. Defendants' argument that plaintiffs lack standing is, as is often the case, a matter of characterization. In their view, the Article III injury on which plaintiffs rely is that "they have been prevented from continuing to serve in the Air Force." Defs.' Memo. & Opp'n 14. Defendants argue that because "Roe and Voe have both completed their terms of enlistment," both would have to reenlist to continue to serve. Id. at 11, 14. They conclude that this is fatal to plaintiffs' standing, both in terms of injury-in-fact and redressability, because there is no guaranteed right to reenlist in the Air Force and because reenlistment "is a separate process independent of both the medical evaluation and the underlying regulations challenged by" plaintiffs. Id. at 14-15. Plaintiffs label this argument a "Catch-22," arguing that Roe's and Voe's
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"terms have expired only because Defendants' illegal policies forced them into the medical discharge process and prevented them from reenlisting." Pis.' Opp'n & Reply 15.25
The key fact with respect to Roe's and Voe's standing to sue is that although their terms of service were originally set to expire in 2018, they were extended through June 2019. Compl. 1174, 88; see Pis.' Memo. Ex. A [Dkt. No. 44] 116-7; id. Ex. B [Dkt. No. 44-7] 1120-21. But as a result of defendants' policies, Voe and Roe are now set to be discharged on February 25 and March 29, 2019, respectively. That both named plaintiffs will be separated-and thus deprived of the economic, medical, and nonpecuniary benefits associated with active-duty service-earlier than as provided by the extensions they received amounts to classic injury-in-fact sufficient to support Article III standing.
Although it is true that if the Court were to grant Roe and Voe the relief they seek,26 they could conceivably again be ordered discharged for different reasons, that remote possibility does not make their injuries nonredressable. The burden imposed by the redressability requirement "is not onerous," and "[p]laintiffs need not show that a favorable decision will relieve [their] every injury." Deal v. Mercer Cty. Bd. of Educ., 911 F.3d 183, 189 (4th Cir. 2018) (second alteration in original) (internal quotation marks and citation omitted). It is enough to show that a favorable decision would be likely to remedy their injury. Plaintiffs have met that burden.
25 Plaintiffs argue as an alternative that they have demonstrated with sufficient certainty that Roe and Voe would have been recommended and selected for reenlistment but for the medical evaluation and separation process. See Pis.' Opp'n & Reply 15 n.2. For the reasons stated below, the Court need not consider that alternative basis for standing. 26 Plaintiffs have not sought an order preventing Roe and Voe from being separated from service for any reason whatsoever. Instead, they seek an injunction preventing defendants from separating them solely "because of restrictions on deployability due to HIV status" [Dkt. No. 34-1].
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Additionally, even if defendants were correct that the expiration of Roe's and Voe's terms of service deprives them of standing, defendants' argument would still fail because OutServe has standing separate from and independent of the named plaintiffs. Although OutServe does not allege any injury to itself qua institutional entity, it may
bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333,343 (1977). Defendants concede that OutServe meets the requirements for associational standing but argue that because the complaint contains allegations only about Roe and Voe, OutServe's standing must be coterminous with Roe's and Voe's. Defs.' Memo. & Opp'n 16. Yet OutServe has identified several additional members who face imminent separation for similar reasons as Roe and Voe but whose terms of service have not yet expired. Pls.' Opp'n & Reply 17; see Pis.'
Memo. Ex. C [Dkt. No. 40] ,r,r 8-27.
Defendants protest that those OutServe members are not mentioned in the complaint, arguing that "parties cannot amend their complaints through briefing or oral advocacy." Defs.' Memo. & Opp'n 16 n.5 (quoting S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013)).27 Defendants misstate the law. In adjudicating a factual challenge to subject matter jurisdiction, "the trial court [has] the discretion
27 Defendants also suggest that OutServe "has not demonstrated that any of the individuals claimed as members are in fact members of the[] organization, an independent jurisdictional flaw." Defs.' Reply 12 n.7. Plaintiffs and their affiants have in fact averred that the four identified servicemembers are OutServe members. See Pis.' Memo. 11; Pls.' Opp'n & Reply Ex. C [Dkt. No. 60-3] 1. In the context of a factual challenge to subject matter jurisdiction at the pleadings stage, no more is required.
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to go beyond the allegations of the complaint and ... determine if there are facts to support the
jurisdictional allegations." Beck, 848 F.3d at 270 (internal quotation marks and citation omitted);
accord White Tail Park, Inc. v. Stroube, 413 F.3d 451,459 (4th Cir. 2005) ("When a defendant
raises standing as the basis for a motion under Rule l 2(b)( 1) ... , the district court may consider
evidence outside the pleadings without converting the proceeding to one for summary judgment." (internal quotation marks and citation omitted)).28 Accordingly, OutServe may assert
associational standing on behalf of its members who face imminent separation because of their
HIV status, including those whose terms of service have not yet expired.
In sum, plaintiffs filed a timely lawsuit after Roe and Voe, and others like them, had
proceeded through a lengthy administrative appeals process culminating in a final decision on
behalf of the Secretary of the Air Force; plaintiffs' claims present a justiciable controversy
subject to judicial review; and both the named plaintiffs and OutServe have a sufficient
Article III stake in the outcome of this litigation to advance those claims. Accordingly,
defendants' motion to dismiss under Rule 12(b)( 1) will be denied.
28 Southern Walk, on which defendants rely, cites two cases for the proposition that "parties cannot amend their complaints through briefing or oral advocacy." See 713 F.3d at 184-85. Both involved motions to dismiss for failure to state a claim under Rule 12(b)(6), not subject-matter jurisdictional challenges under Rule 12(b)(l). See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435,449 (4th Cir. 2011); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984). Moreover, the Fourth Circuit's comment in Southern Walk was just one part of a broader discussion of why the plaintiffs jurisdictional allegations were insufficient, which included that the plaintiff had failed to meaningfully distinguish between "injury in its own right and representational standing based on injury to its members" and had relied on inappropriately vague allegations. See 713 F.3d at 185. In their reply brief, defendants attempt to recharacterize their motion to dismiss, claiming that it was brought under Rule 12(b)(6) as well as 12(b)(l). See Defs.' Reply 11. This is wholly contrary to how defendants framed their motion in their opening brief. See Defs.' Memo. & Opp'n 6. Because defendants' arguments address only the subject matter jurisdiction of the Court, the standards governing Rule l 2(b)( 1) apply here.
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III. PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION Having resolved defendants' motion to dismiss, the Court now turns to plaintiffs' request for a preliminary injunction preventing Roe and Voe, along with other similarly situated servicemembers, from being separated because of their HIV status. "A preliminary injunction is an extraordinary remedy intended to protect the status quo and prevent irreparable harm during the pendency of a lawsuit." Di Biase v. SPX Corp., 872 F.3d 224,230 (4th Cir. 2017). To be entitled to such relief, plaintiffs must show "that (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm, (3) the balance of hardships tips in their favor, and (4) the injunction is in the public interest." Metro Reg'l Info. Sys., Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591, 595 (4th Cir. 2013). In light of the "strong judicial policy against interfering with the internal affairs of the armed forces," courts have generally held that "military discharge proceedings should be enjoined only in exceptional circumstances." Chilcott v. Orr, 747 F.2d 29, 33 (1st Cir. 1984). This case presents such exceptional circumstances. Even bearing in mind the deference owed to the military, the Court concludes that plaintiffs have made a clear showing that a carefully tailored injunction is appropriate and in the public interest. A. Likelihood of Success on the Merits A party seeking a preliminary injunction must establish that he is likely to succeed on the merits of at least one claim. Dewhurst v. Century Aluminum Co., 649 F.3d 287,290 (4th Cir. 2011). To satisfy this requirement, the party must demonstrate more than "a grave or serious question for litigation," Sarsour v. Trump. 245 F. Supp. 3d 719, 729 (E.D. Va. 2017) (emphasis and citation omitted), but need not show "a certainty of success," League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) (citation omitted). At least at this
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stage, plaintiffs have made a strong and clear showing that defendants' policies are irrational, outdated, and unnecessary and their decisions arbitrary, unreasoned, and inconsistent. As such, they have demonstrated a likelihood of success as to Counts I, II, and III of the complaint.29
1. Standards of Review Count I of plaintiffs' complaint alleges that the decisions to order Roe and Voe discharged, along with the policies that produced those decisions, violate their right to equal protection. "[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process."' Schneider v. Rusk, 377 U.S. 163, 168 (1964) (quoting Bolling v. Sharpe, 347 U.S. 497,499 (1954)). Fifth Amendment equal protection claims are analyzed under the same framework as claims brought under the Fourteenth Amendment's Equal Protection Clause. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975). The right to equal protection under the law serves "to secure every person ... against intentional and arbitrary discrimination." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (citation omitted). As a baseline, all governmental classifications must be "rationally related to a legitimate governmental interest." U.S. Dep't of Agric. v. Moreno, 413 U.S. 528,533 (1973).30 Although classifications need not "be drawn with precise mathematical nicety," id. at 538 (internal quotation marks and citation omitted), rational basis review is not "toothless," Mathews v. Lucas, 427 U.S. 495,510 (1976). The government "may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the
29 This conclusion renders it unnecessary to assess whether plaintiffs have demonstrated a likelihood of success as to Counts IV and V. 30 Plaintiffs do not dispute that maintaining a ready, effective military force and protecting the health and safety of servicemembers are legitimate government interests.
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distinction arbitrary or irrational." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,
446 (1985); see Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 83 (1988) ("[A]rbitrary and
irrational discrimination violates the Equal Protection Clause under even our most deferential
standard of review."). Nor may a classification be based on "irrational prejudice," City of
Cleburne, 473 U.S. at 450, or a "bare ... desire to harm a politically unpopular group," Moreno,
413 U.S. at 534.31
Counts II and III of the complaint invoke the judicial review provisions of the APA,
which authorize courts to "hold unlawful and set aside agency action, findings, and conclusions"
determined to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law." 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious if
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
31 Plaintiffs have argued with respect to their equal protection claim that defendants' policies should be subject to more searching judicial scrutiny because HIV status is a suspect or quasisuspect classification ·under the four-factor framework outlined in Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), affd on other grounds, 570 U.S. 744 (2013). The Windsor framework asks whether the class "has been historically subjected to discrimination," "has a defining characteristic that frequently bears [a] relation to ability to perform or contribute to society," "exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group," and is "a minority or politically powerless," id. at 181 (alteration in original) (internal quotation marks and citations omitted). Plaintiffs' argument faces an uphill climb. The Supreme Court has not recognized a suspect or quasi-suspect classification since 1977. Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 757 (2011). Moreover, the Fourth Circuit has broadly stated that "classifications based on disability are subject to minimal scrutiny," Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474,486 (4th Cir. 2005) (citing City of Cleburne, 473 U.S. at 446), as have other federal courts of appeals, see, M:, Toledo v. Sanchez, 454 F.3d 24, 33 (1st Cir. 2006); Lee v. City of Los Angeles, 250 F.3d 668,687 (9th Cir. 2001). And the Fourth Circuit has held, albeit in a decades-old opinion, that HIV status is not a suspect classification. Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1267 (4th Cir. 1995). Whether, given a clean slate, HIV status would qualify as a suspect classification-and, if so, whether Doe would nonetheless require a contrary conclusion--can be left for another day. Plaintiffs are correct that answering those questions "is not necessary here," Pis.' Memo. 12-13, because they have demonstrated a likelihood of success even assuming that rational basis review applies to their equal protection claim.
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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. Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Although arbitrary-and-capricious review is necessarily deferential and narrow in scope, the standard "does not reduce judicial review to a rubber stamp." Ergon-W. Va., Inc. v. U.S. EPA, 896 F.3d 600,609 (4th Cir. 2018) (citation omitted). To the contrary, courts "must conduct a searching and careful review to determine whether the agency's decision was based on a consideration of the relevant factors," whether the agency "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action," and whether the agency committed "a clear error ofjudgment." Perez v. Cissna, No. 18-1330, 2019 WL 350328, at *3 (4th Cir. Jan. 29, 2019) (alterations in original) (internal quotation marks and citations omitted). The agency's rationale must be "both discernible and defensible," Trans-Pac. Freight Conf. of Japan/Korea v. Fed. Mar. Comm'n, 650 F.2d 1235, 1251 (D.C. Cir. 1980), and the agency "must treat similar cases in a similar manner unless it can provide a legitimate reason for failing to do so," Kreis v. Sec'y of the Air Force, 406 F.3d 684, 687 (D.C. Cir. 2005) (citation omitted). The standards governing Counts I, II, and III substantially overlap because "rational-basis [r]eview of an equal protection claim in the context of agency action is similar to that under the APA." Cooper Hosp./Univ. Med. Ctr. v. Burwell, 179 F. Supp. 3d 31, 47 (D.D.C. 2016) (alteration in original) (internal quotation marks and citation omitted), aff'd per curiam, 688 F. App'x 11 (D.C. Cir. 2017). Accordingly, in analyzing defendants' policies and decisions, the question is the same for both the equal protection and APA claims: "whether the defendants' treatment of [Roe and Voe] was rational (i.e., not arbitrary and capricious)." Ursack, Inc. v. Sierra Interagency Black Bear Grp., 639 F.3d 949, 955 (9th Cir. 2011). In asking that question,
34

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the Court must defer "to the professional judgment of military authorities concerning the relative importance of a particular military interest." Goldman v. Weinberger, 475 U.S. 503, 507 (1986); see also Winter v. Nat. Resources Def. Council, Inc., 555 U.S. 7, 24 (2008) (requiring deference to "complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force" (citation omitted)).
2. Analysis Plaintiffs have challenged the determinations, made as part of the Air Force's retention and disability evaluation system, that Roe and Voe should be separated from service. Those discharge determinations were entirely dependent on the antecedent findings that Roe and Voe were subject to deployment restrictions. Defendants have recognized as much, arguing that Roe and Voe are to be discharged not because they are HIV positive, but rather because their condition makes them ineligible for deployment to an area of operation where servicemembers of their rank and responsibilities are frequently deployed. The deployment policy is thus the driving factor and must be analyzed first.
i. The Deployment Policy DoDI 6490.07 is the Armed Forces-wide instruction intended to provide "baseline guidance on medical deployability for the DoD." See A424. It states that a servicemember is not subject to deployment restrictions so long as his medical condition is stable, not subject to sudden worsening, not reliant on medication with special handling or storage requirements, and not dependent on routine evacuation for ongoing treatment or evaluation. DoDI 6490.07, § 4(b), at A89. Roe and Voe appear to satisfy all of section 4(b)'s requirements. Defendants do not contest, and no evidence in the record contradicts, plaintiffs' assertions that Roe and Voe are asymptomatic and that their viral loads are suppressed, meaning that their conditions are stable
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and not subject to sudden worsening so long as they maintain their course of treatment. Although they require daily medication, there is no evidence in the record contradicting plaintiffs' description of that medication as requiring "no special handling, storage, or other requirements" and causing no "significant side effects," id.§ 4(b)(3). Roe and Voe must undergo medical evaluations every few months,32 but nothing suggests that such a requirement qualifies as a "need for routine evacuation," id. § 4(b)(4). Indeed, that active-duty servicemembers with a high risk of HIV exposure are administered pre-exposure prophylaxis ("PrEP") treatment-which, according to one of plaintiffs' medical experts, Dr. W. David Hardy, gives rise to a need for medical evaluations every three months, see Pis.' Opp'n & Reply Ex. D [Dkt. No. 60-5] ("Hardy
Deel.") ,r,r 19-2333-but are nonetheless allowed to deploy suggests the opposite.
Section 4(c) of the instruction identifies certain conditions that bar a servicemember from deploying without a waiver. DoDI 6490.07, § 4(c), at A89. Although HIV is listed, the instruction provides the caveat that a waiver is required for HIV only "with the presence of progressive clinical illness or immunological deficiency." Id. enclosure 3, § e(2), at A97. As the record shows, neither Roe nor Voe falls within the terms of that provision. Because of their successful antiretroviral treatment, their conditions are not "increasing in scope or severity," see Progressive, Dorland' s Illustrated Medical Dictionary (26th ed. 1981 ), and their immune systems are not compromised in the way associated with untreated or advanced-stage HIV or AIDS. At
32 See Pis.' Memo. Ex. F [Dkt. No. 40-7] 10-11 (explaining that HIV-positive servicemembers generally require screenings every three to four months, a period which may be extended to six months "for individuals whose viral load has been suppressed for more than 2 years and whose clinical and immunologic status is stable"). 33 Hardy is Chair of the HIV Medicine Association and Adjunct Professor of Medicine at the Johns Hopkins University School of Medicine. He has over 30 years' experience in the care and treatment of individuals living with HIV. See Hardy Deel. 2.
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least under DoDI 6490.07, it appears Roe and Voe should not have been classified as nondeployable at all.34
The Court recognizes that an altogether different standard governs deployment to CENTCOM, the "theater-level Unified Combatant Command with responsibility for military operations across North Africa, Central Asia, and the Middle East." A423. Under Modification Thirteen to USCENTCOM Individual Protection and Individual-Unit Deployment Policy ("MOD 13"), "[c]onfirmed HIV infection is disqualifying for deployment." See A425. Kevin Cron ("Cron"), CENTCOM' s primary waiver action officer, submitted a declaration in support of defendants stating that servicemembers who deploy to CENTCOM "must be medically, dentally and psychologically fit" and cannot have medical conditions "requiring highly specialized medical personnel, treatments, or medications." A424-25. Otherwise disqualified servicemembers may deploy to CENTCOM if they secure a waiver; however, Cron has "n[ever] granted a deployment waiver for a[n] HIV-positive Service member," having concluded in every case "that the risks of deploying a[n] HIV-positive Service member were too great to justify waiver approval." A426-27 ("It is highly unlikely that either ... Roe or Voe would be granted a waiver to deploy to the CENTCOM [area]."). In essence, then, the rule that prohibits HIVpositive servicemembers from deploying to CENTCOM is a categorical one. See A460 (the SAFPC stating that being HIV positive "precludes [a servicemember] from being able to deploy world-wide without a waiver and renders him ineligible for deployment to [CENTCOM]" (emphasis added)).
34 This interpretation of DoDI 6490.07 is consistent with guidance that the DoD provided to Congress in 2014, which stated that HIV-positive servicemembers would not be separated or even referred into the DES unless their conditions had "deteriorate[d]" in a way that interfered with the successful performance of their military occupation. A376.
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This rule fails to pass muster under even the most deferential form of scrutiny. Because of advances in medicine and science, HIV is no longer a progressive, terminal illness. A study published in 2015 in a peer-reviewed journal under the auspices of the DoD recognized as much, finding that HIV "has gone from an untreatable disease marked by inexorable clinical progression through extreme debility to death to a treatable disease"---one "that is compatible with active service throughout a full career in the U.S. military." Pis.' Memo. 14 (quoting John F. Brundage et al., Durations of Military Service After Diagnoses of HIV- I Infections Among Active Component Members of the U.S. Armed Forces, 1990-2013, 22 Med. Surveillance Monthly Rep. 9, 12 (2015)). It is thus unsurprising that until very recently, "nearly all cases of asymptomatic HIV resulted in a return to duty." A416. Roe and Voe are cases in point: Their commanding officers have unreservedly supported their retention, stating that despite being HIV positive they are physically and mentally capable of performing all duties required of them.
To be sure, HIV remains incurable, and Roe and Voe must take daily medication to ensure that their viral loads remain suppressed. But that fact does not justify the categorical prohibition at issue here. Although HIV-positive individuals who suddenly stop antiretroviral treatment are vulnerable to "viral rebound," A444, appreciable physical effects are not immediate. According to Dr. Hardy, it "often takes weeks" for an individual's viral load to return to clinically significant levels, and even then, the virus "enters a period of clinical latency that
can last years," often with no "symptoms or negative health outcomes." Hardy Deel. 11 11, 14.
What is more, plaintiffs have identified several serious medical conditions treated with daily medication that do not subject servicemembers to the same categorical denial of deployability to
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CENTCOM. These include dyslipidemia,35 which (unlike HIV) does not preclude an individual from enlisting or deploying provided the condition is under "medical management" with "no medication side effects," see DoDI 6130.03, § 5.24(n); hypertension, which is listed as a disqualifying condition only where it is "not controlled with medication" or "requires frequent monitoring," DoDI 6490.07, enclosure 3, § g(l), at A98; and asthma, which does not preclude deployment unless it persists "despite appropriate therapy," requires frequent hospitalization, or requires "daily systemic (not inhalational) steroids," id. § d, at A97. Servicemembers who require daily antimalarial medicine likewise are not barred from deploying to CENTCOM; they are simply instructed to "deploy with either enough medication for their entire deployment or with enough to cover approximately half of the deployment with plans to receive the remainder of their medication in theater." A349-50. More generally, MOD 13 allows "personnel who require medication and who are deploying to the CENTCOM" area to deploy "with no less than a 180[-]day supply (or appropriate amount for shorter deployments)," with provisions made to obtain refill prescriptions through the Armed Forces's Deployment Prescription Program. A349. Thus, although defendants emphasize that deployability determinations must account for "reasonably anticipated contingencies, such as loss, theft, or destruction of medication," Defs.' Memo. & Opp'n 24, 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.36
35 "Dyslipidemia is elevation of plasma cholesterol and/or [triglycerides] or a low [high-density lipoprotein] level that contributes to the development of atherosclerosis." The Merck Manual of Diagnosis and Therapy 1295-1309 (Mark H. Beers et al. eds., 18th ed. 2006). 36 Cron suggests that "features of HIV ... make it difficult to compare to other conditions" because HIV medications "are highly specialized." A427. Cron does not explain that statement in any way, and as the record reflects, the opposite is true: Antiretroviral treatment requires
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Defendants also suggest that their policy is justified by the fact that HIV-positive individuals may require checkups every few months. But as plaintiffs' expert Dr. Craig W. Hendrix explains, those checkups do not require "highly specialized medical personnel," A425, and are consistent with deployment in a forward area; all that is needed is a blood sample, which may be shipped to a laboratory if none is available on site. Pis.' Memo. Ex. F [Dkt. No. 40-7] ("Hendrix Deel.") 11.37 Dr. Hendrix also explains that point-of-care viral load testing "is becoming increasingly prevalent and cost efficient." Id. Finally, as discussed previously, the Armed Forces's policy of administering PrEP to certain deployed servicemembers undercuts defendants' reliance on the argument that the need for testing every few months bars deployability. See Hardy Deel. I ("[P]roviding PrEP to members of the Armed Services is more logistically and medically demanding than providing antiretroviral medications to service members living with HIV would be.").
Nor do other considerations supply the critical missing link in defendants' chain of reasoning. Defendants do not dispute that antiretroviral treatment is highly "effective[] in preventing HIV transmission." A374. Uncontroverted evidence from another of plaintiffs' experts, Dr. Carlos del Rio, demonstrates that when an individual's viral load is suppressed, he cannot transmit the virus to another. Pls.' Memo. Ex. D [Dkt. No. 40-5] ("Del Rio Deel.") 8
taking one or two pills per day, and those pills are kept in standard pill bottles without special storage requirements. And as plaintiffs' medical expert Dr. Craig W. Hendrix makes clear, "[t]he HIV medications commonly prescribed today have no special handling, storage or other requirements" and "generally tolerate hard conditions, such as hot or cold stress and sunlight, well." Pis.' Memo. Ex. F [Dkt. No. 40-7] 10. 37 Hendrix is a Professor of Medicine and Pharmacology and Molecular Sciences at the Johns Hopkins University School of Medicine. He also served in the Air Force on active duty for IO years and previously was Director of the HIV Medical Evaluation Unit and HIV Program at an Air Force medical center. See Hendrix Deel. 2-3.
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(citing a 2017 "Dear Colleague" letter from the CDC).38 The expert evidence presented by plaintiffs supports the conclusion that even in the case of a sustained disruption in treatment long enough for the viral load to rebound to clinically significant levels, an individual's risk of transmitting HIV during military service remains vanishingly low. Defendants have not identified a single recorded case of accidental transmission of HIV on the battlefield, which is unsurprising given the uncontroverted evidence that even without effective treatment, the risk of transmission through nonintimate contact such as blood splash is negligible. See id. at 8-9; see also A375 (describing the Navy's policy allowing HIV-positive servicemembers to deploy on certain vessels in part because there is "no demonstrated risk of transmission of infection in normal daily activities"). And in the extraordinarily unlikely event of accidental or battlefield exposure, advances in PrEP treatment have made it possible to prevent that exposure from leading to infection.
Defendants respond by pointing to another potential risk: that of transmitting HIV through a "battlefield blood transfusion." Defs.' Memo. & Opp'n 25. But defendants' argument compares apples to oranges. The risk they identify is that a servicemember unaware he is HIV positive might donate blood. See A429 (explaining that this possibility was one of the main impetuses for the military's decision to start screening servicemembers for HIV in the 1980s). That concern fades from view after a servicemember has been diagnosed with HIV and thus knows that he cannot give blood, especially if he has been subject to disruptions in his antiretroviral treatment.
38 Del Rio is the Hubert Professor and Chair of the Development of Global Health, Professor of Epidemiology at the Rollins School of Public Health, and Professor of Medicine in the Division of Infectious Diseases at Emory University School of Medicine, as well as Principal Investigator and co-Director of the Emory Center for AIDS Research. He primarily focuses "on early diagnosis, access to care, engagement in care, compliance with antiretrovirals and prevention of HIV." Del Rio Deel. 2-3.
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Defendants have not argued that every deployed servicemember must be able to donate blood. Nor could they: Many servicemembers cannot give blood for various reasons, including blood type and allergies, but are not barred from deploying to CENTCOM or elsewhere. Instead, they are simply issued medical alert tags. Pis.' Memo. 17-18; Pis.' Opp'n & Reply 27.
Defendants have not offered any cogent response to plaintiffs' experienced medical experts, all of whom persuasively explain why the effectively categorical rule declaring all HIVpositive servicemembers ineligible for deployment to CENTCOM is inconsistent with the state of science and medicine and with the way the military treats other chronic but manageable conditions. Indeed, rather than attempting to respond to plaintiffs' experts, defendants rely only on conclusory assertions about their "professional military and medical judgment," Defs.' Memo. & Opp'n 27, and on circular restatements of their policies. For example, defendants argue that "[a]s explained in DoD's 2014 Report to Congress, HIV infection has the potential to undermine a Service member's medical fitness and the readiness of the force." Id. 21 (citing A376). But the portion of the report defendants cite simply does not support their argument. In fact, it amounts to nothing more than a description of the Armed Forces's DES as it relates to HIV-positive servicemembers; it contains no evidence, whether anecdotal or otherwise, of the effect of HIV on a servicemember's medical fitness or the military's readiness. See A376. The same is true for defendants' assertion that the "need for regular treatment and monitoring could impair the ability of an HIV-positive Service member to serve worldwide," Defs.' Memo. & Opp'n 27 (citing A384). The page defendants cite contains no scientific data, evidence, or reallife accounts, but rather is a mere recitation of defendants' policies. In sum, while plaintiffs have presented considerable evidence in support of their arguments, defendants rely on little more than ipse dixit. Based on this record, plaintiffs have made a strong preliminary showing that the
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deployment policy applied to asymptomatic HIV-positive servicemembers cannot withstand rational basis review.
ii. The Discharge Decisions In addition to arguing that the deployment policy is irrational, plaintiffs also argue that the decisions to discharge Roe were arbitrary and capricious. Plaintiffs are likely to succeed on this argument as well. First, that Roe and Voe were even referred for a separation determination in the first place is arguably inconsistent with defendants' own policies. DoDI 1332.45 establishes that servicemembers classified as "nondeployable" for more than 12 consecutive months---or whose nondeployability would not change within the I2-month period-would be evaluated for retention, referred into the DES, or processed for separation. See DoDI I 332.45, § I .2(b), at A62; id.§ 2.4(b)(3), at A64. But servicemembers with conditions identified in DoDI 6490.07, including HIV (at least with the presence of progressive clinical illness or immunological deficiencies, as discussed above), are classified as "deployable with limitations." Id. § 3.3, at A66. As DoD made clear in a 20 I8 report to Congress, "nondeployable" and "deployable with limitations" were intended to be meaningfully distinct categories, with "the retention determination process applying to the former but not the latter." A386. As such, DoDI 1332.45 clearly suggests that servicemembers with HIV-even those whose health conditions are much graver than Roe's or Voe's-would not be subject to review for separation. In this respect, plaintiffs are correct that the Air Force's actions with respect to Roe, Voe, and the other HIVpositive servicemembers identified by OutServe seem "not in alignment with DoDI 1332.45." Pls.' Memo. 20.
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Defendants concede that "(t]he Air Force did not apply DoDI 1332.45." Defs.' Memo. & Opp'n 22. Instead, they claim to have followed DoDI 6485.01, which states that active-duty servicemembers diagnosed with HIV must be "referred for ... a medical evaluation for fitness for continued service in the same manner as a Service member with other chronic or progressive illnesses." DoDI 6485.01, enclosure 3, § 2(c), at A85. They claim that under this "case by case" medical evaluation process, A339, Roe and Voe were fairly found to be unfit for duty and therefore must be discharged.
The process to which Roe and Voe were subjected does not comport with even the minimal requirements of the APA. Applicable Air Force regulations make clear that "HIV seropositivity alone is not grounds for medical separation." AFI 44-178, § 2.4.1, at A299; accord id. § A9. l .1, at A329; see also A341 ("Asymptomatic HIV alone is not unfitting for continued service."). To be subject to separation, an HIV-positive individual's condition must (i) prevent him "from reasonably performing the duties of [his] office, grade, rank, or rating"; (ii) "represent[] an obvious medical risk to the health of the member or the health or safety of other members"; or (iii) "impose[] unreasonable requirements on the military to maintain or protect the Service member." DoDI 1332.18, enclosure 3, app. 1, § 2(a), at A26. For the reasons discussed in detail above, the evidence in this record clearly establishes that HIV seropositivity alone is not inconsistent with ongoing military service, does not seriously jeopardize the health or safety of the servicemember or his companions in service, and does not impose unreasonable burdens on the military when compared to similar chronic conditions.39 Moreover, both named
39 Indeed, the unjustified different treatment given to HIV as compared to other conditions is itself contrary to the explicit policy demanding that HIV be treated "in the same manner as ... other chronic or progressive illnesses," DoDI 6485.01, enclosure 3, § 2(c), at A85.
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plaintiffs' commanding officers recommended retention, opining that Roe's and Voe's HIV status did not interfere with their ability to perform their duties. The SAFPC recognized as much. See A460 ("[H]e is able to perform all in[-]garrison duties, has passed his most recent fitness assessment without any component exemptions, and his commander strongly supports his retention."); A747 (same). The same is true for the four identified active-duty members of OutServe facing imminent separation. See Pis.' Memo. Exs. Cl-C4 [Dkt. Nos. 40-1 to -4].
Nonetheless, Roe and Voe-along with the four OutServe members-were found unfit for duty and ordered discharged. The reason given in all six cases was identical: The servicemember "belongs to a career field with a comparatively high deployment rate/tempo" to the CENTCOM area, but being HIV positive "precludes him from being able to deploy worldwide without a waiver and renders him ineligible for deployment to [CENTCOM]." A460; accord A747; Pis.' Memo. Exs. Cl-C4 [Dkt. Nos. 40-1 to -4]; see also Defs.' Memo. & Opp'n 26-27 (stating that Roe and Voe were ordered "discharged for a combination of having HIV and being in a career field where they would have a high deployment tempo to CENTCOM, rendering it impossible for them to fully perform their duties").40
The Court has already explained why the policy declaring all HIV-positive servicemembers categorically ineligible for deployment to CENTCOM is irrational and arbitrary.
40 Defendants have identified four servicemembers who were referred into the DES after being diagnosed with HIV but who were ordered returned to duty rather than separated, assertedly because each "had a much lower likelihood of deployment" to CENTCOM. A421. Two observations are in order. First, at least one servicemember ordered returned to service had a 17.1 % likelihood of deployment as measured between fiscal year ("FY") 2015 and FY 2017, whereas those who were ordered separated had "at least a 20% likelihood" over that same period. Id. Because it is unclear by how much any of the servicemembers' likelihoods of deployment exceeded 20%, it is impossible to tell whether defendants' distinction is meaningful. Second, that a few HIV-positive servicemembers were spared from separation does not make the decisions in Roe's and Voe's cases any more acceptable.
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Defendants' reliance on that policy renders the decisions to discharge Roe and Voe contrary to
the APA for two reasons. First, although the SAFPC purported to engage in an individualized
determination as to Roe's and Voe's fitness for duty, in fact its decisions were completely dependent on the across-the-board deployability policy. The failure to consider the issues with
that policy or to analyze whether Roe and Voe could in fact be deployable to CENTCOM-let
alone to any other location beyond the continental United States-despite their condition renders the decisions to discharge them arbitrary and capricious.41 Moreover, because the categorical deployment limitation is not rationally related to any legitimate interest, that limitation applies to
Roe and Voe solely because they have been diagnosed with HIV. By attempting to discharge
them because of that limitation, the SAFPC violated agency policy mandating that HIV status
alone is not a permissible ground for separation. A decision in direct conflict with the agency's
own standards, and one based on a failure to consider key aspects of the problem, cannot stand under the APA.42
41 Another aspect of the problem that defendants failed to consider was whether Roe and Voe could be retained in a different capacity. DoDI 1332.18 sets out factors that must be considered in deciding "whether a Service member can reasonably perform his ... duties," one of which is whether "reclassification or reassignment is feasible." DoDI 1332.18, enclosure 3, app. 2, § 4(a), at A3 l. Nothing indicates that the SAFPC, or any other Air Force decisionmaker, ever considered that question, even though Roe was hoping to pursue retraining in another field with a lower likelihood of deployment. See Pis.' Opp'n & Reply Ex. A [Dkt. No. 60-1] 2. During oral argument, plaintiffs' counsel stated that Voe also was interested in pursuing retraining. 42 To show a likelihood of success on their equal protection and APA claims, plaintiffs need only demonstrate that the challenged policies are irrational and arbitrary; they need not endeavor to explain what irrational or unstated forces may be behind those policies. Nonetheless, it bears observing that the history of HIV has largely been one of fear, misinformation, stigma, and moral outrage, see Pis.' Memo. Ex. E [Dkt. No. 40-6] 3-6 (expert declaration of Trevor Hoppe), and the military would hardly be the first American institution to react to HIV in a manner incommensurate with the true nature of the disease and those affected by it.
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B. Irreparable Harm A party seeking a preliminary injunction must make a clear showing of "actual and imminent" irreparable harm in the absence of injunctive relief. Direx Isr., Ltd. v. Breakthrough Med. Corp.. 952 F.2d 802, 812 (4th Cir. 1991) (citation omitted). "[I]rreparable harm occurs when the threatened injury impairs the court's ability to grant an effective remedy," Int'l Refugee Assistance Project v. Trump. 883 F.3d 233,270 (4th Cir.), vacated on other grounds, 138 S. Ct. 2710 (2018), typically when monetary damages "are difficult to ascertain or are inadequate," Handsome Brook Farm, LLC v. Humane Farm Animal Care, Inc., 193 F. Supp. 3d 556, 574 (E.D. Va. 2016) (citation omitted), afrd, 700 F. App'x 251 (4th Cir. 2017). The impending harm must be likely, not merely possible. Winter, 555 U.S. at 22. One point of clarification is necessary at the outset. Defendants argue that Sampson v. Murray. 415 U.S. 61 (1974), as applied to military employees in Guerra v. Scruggs, 942 F.2d 270 (4th Cir. 1991 ), requires plaintiffs "to make a much stronger showing of irreparable harm than [under] the ordinary standard for injunctive relief." Defs.' Memo. & Opp'n 17. Defendants cite Sampson and Guerra out of context. In Sampson, a federal employee sued to prevent herself from being terminated pending her appeal to the Civil Service Commission. 415 U.S. at 62-63. The district court granted an injunction after finding a mere possibility of harm, see id. at 67, and the court of appeals affirmed on similar grounds, see id. at 84-85. The Supreme Court reversed, holding that the court of appeals erred "in suggesting that ... the District Court need not have concluded that there was actually irreparable injury." Id. at 88. Sampson is thus a relic of the world before Winter's unambiguous rejection of the "possibility" standard, see 555 U.S. at 22 (requiring a showing "that irreparable injury is likely in the absence of an injunction" (emphasis in original)). Likewise, when Guerra applied Sampson in 1991, the Fourth Circuit employed a
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flexible sliding-scale approach that permitted a preliminary injunction to issue based only on "possible" irreparable harm. See Guerra, 942 F.2d at 273-74; see also Henderson ex rel. NLRB v. Bluefield Hosp. Co., 902 F.3d 432,438 n.* (4th Cir. 2018) (discussing the Fourth Circuit's former balancing approach and how that approach was abrogated by Winter). The same was true for the sister-circuit cases on which Guerra relied. See, e.g.. Hartikka v. United States, 754 F.2d 1516, 1518 (9th Cir. 1985). Since Winter, the "ordinary standard for injunctive relief," Defs.' Memo. & Opp'n 17, has come into line with what the Court described in Sampson. Accordingly, Guerra does not impose a special, heightened requirement on military-employee plaintiffs.43 There is but one standard for issuing injunctive relief, in military cases "no less"-and no more-"than in other cases." See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 394 (2006).
Plaintiffs have made a clear showing that they likely face irreparable, actual harm. Under normal circumstances, termination of employment does not constitute irreparable injury because of the "possibility that adequate compensatory or other corrective relief will be available at a later date." Sampson, 415 U.S. at 90. This may be true for some servicemembers facing discharge, at least absent "unusual actions relating to the discharge itself." Hartikka, 754 F.2d at 1518 (quoting Sampson, 415 U.S. at 92 n.68). But it is not guaranteed to be true in every case. Roe and Voe, along with other similarly situated HIV-positive servicemembers, 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 of being removed from active duty ... and [being]
43 This is not to suggest that the military context of this litigation is irrelevant. As discussed above, that plaintiffs seek preliminary relief from military discharge orders weighs heavily in the Court's overall analysis of whether relief is appropriate and what form that relief may take.
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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] job[s]." Elzie v. Aspin, 841 F.
Supp. 439, 443 (D.D.C. 1993).44 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. In that sense, the discharges with which Roe and Voe are faced are doubly damaging:
Not only will they lose the opportunity to "pursue [their] chosen profession," Enyart v. Nat'l
Conf. of Bar Exam'rs, Inc., 630 F.3d 1153, 1166 (9th Cir. 2011), but it is likely that they will
also face genuine stigmatic injury caused by defendants' decisions, see Karnoski v. Trump.
No. 17-cv-1297, 2017 WL 6311305, at *9 (W.D. Wash. Dec. 11, 2017), stay granted, No. 18A625,
2019 WL 271944 (U.S. Jan. 22, 2019).45 This is precisely the type of harm that back pay or
reinstatement cannot remedy and for which status quo-preserving preliminary relief is designed.
44 Defendants suggest that Guerra forecloses this reasoning. It does not. Guerra involved an Army private who sought to enjoin his discharge for "cocaine usage and absence from duty due to alcohol intoxication." 942 F.2d at 271-73. Guerra did not dispute his drug and alcohol use; rather, he challenged the procedures through which the discharge recommendation was made. Id. The Fourth Circuit's conclusion that any "damage to [Guerra's] reputation during the interim between his discharge and the decision of the board reviewing his discharge" did not qualify as irreparable harm, id. at 274-75, does not require the same conclusion here. Unlike Guerra, plaintiffs do not simply dispute the procedures used to reach a decision; they also challenge the basic notion that their HIV status makes them in any way unfit for service. Put another way: It was Guerra's behavior, not his impending discharge, that would subject him to stigma, whereas in plaintiffs' case it is the Armed Forces's apparent affirmation that plaintiffs are less valuable by virtue of their HIV status that will cause immeasurable harm. 45 Defendants suggest that the Supreme Court's decision to stay the injunction in Karnoski, a case involving the ban on military service by openly transgender individuals, rebuts the reasoning in that opinion. Defs. Memo. 19. That argument puts too much weight on the Court's action. Because no reasons were given for granting the stay request, the most that can be intuited is "a reasonable probability that four Members of the Court will consider the issue sufficiently meritorious to grant certiorari." Graves v. Barnes, 405 U.S. 1201, 1203 (Powell, Circuit Justice 1972); cf. Dunn v. Ray. No. 18A815, 2019 WL 488293, at *1 (U.S. Feb. 7, 2019) (vacating a stay and explaining why, in the Court's view, the injunctive relief had been improperly granted).
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C. Remaining Equitable Factors Finally, to be entitled to the preliminary injunctive relief they seek, plaintiffs must show that the balance of equities tips in their favor and that an injunction is in the public interest. Where, as here, the injunctive relief is sought against the federal government and implicates a matter of great public interest, these two factors overlap and may be considered together. Nken v. Holder, 556 U.S. 418,436 (2009); Int'l Refugee Assistance Project v. Trump, 857 F.3d 554,602 (4th Cir.), vacated on other grounds, 138 S. Ct. 353 (2017). The equities weigh heavily in plaintiffs' favor. Although the impact of defendants' policies on servicemembers like Roe and Voe is potentially immense, defendants can scarcely be said to face any serious consequences stemming from the issuance of appropriately tailored injunctive relief, given that HIV-positive individuals make up such a miniscule percentage of active-duty servicemembers-0.027%, by one calculation. Pis.' Memo. 29. Defendants do not attempt to argue that retaining HIV-positive servicemembers would be prohibitively expensive or burdensome. Instead, they focus on a different sort of institutional harm: that granting relief here will encourage a deluge of cases challenging discharge determinations and undermine the principle of military independence. Defendants' concerns are overstated. Plaintiffs' claims are not of the sort that worried the Fourth Circuit in Guerra-namely, individualized or procedural challenges with little or no general applicability. Nor is the relief sought by plaintiffs likely to entangle the Court in "complex, subtle, and professional decisions" in a way that would cause symbolic or actual harm to the Armed Forces. Plaintiffs ask only that defendants adhere to their stated policies and make nonarbitrary, personalized determinations about each individual's fitness for service. That sort of request does not do violence to the notion of military independence, but rather enforces it.
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The public interest also decisively favors granting injunctive relief. The military is a branch of the federal government and ultimately bears a responsibility to the American public at large. The public undoubtedly has an interest in seeing its governmental institutions follow the law and treat their employees in reasonable, nonarbitrary ways. More concretely, the public benefits from the security provided by military departments populated with individuals dedicated to the notion of service. Roe and Voe, along with similarly situated HIV-positive members of the Air Force, have been serving-and want to continue serving-their country. They have carried out their responsibilities in a creditable manner, earning trust on the part of their commanding officers and fellow servicemembers. It is in the public interest to prevent their discharge for apparently arbitrary and indefensible reasons, at least until the Court can definitively decide the merits of plaintiffs' claims.
D. Scope of Iniunctive Relief Plaintiffs have demonstrated that they are entitled to injunctive relief. The remaining question is what form that relief should take. "Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents." Trump v. Int'l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam). Interim equitable relief serves "not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward." Id. (citation omitted). In forging such relief, a court must exercise great care to "mold its decree to meet the exigencies of the particular case." Id. (citation omitted); see also North Carolina v. Covington, 137 S. Ct. 1624, 1625 (2017) (per curiam) ("A district court therefore must undertake an equitable weighing process to select a fitting remedy for the legal violations it has identified,
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taking account of what is necessary, what is fair, and what is workable." (internal quotation marks and citations omitted)).
First, any relief granted must be "limited to the inadequacy that produced the injury in fact that the plaintiff has established." Lewis v. Casey~ 518 U.S. 343, 357 (1996); see Missouri v. Jenkins, 515 U.S. 70, 88 (1995) ("[T]he nature of the ... remedy is to be determined by the nature and scope of the constitutional violation." (citation omitted)). That requirement respects the separation of powers and keeps courts from entangling themselves in delicate policy matters. Here, the apparent inadequacy giving rise to imminent, irreparable injury is that servicemembers like Roe and Voe face separation based on the arbitrary policy that they are categorically ineligible for deployment to CENTCOM. The solution, then, is the mirror image of that defect: defendants will be prohibited from making or enforcing discharge determinations based on that policy.46
Next, defendants have argued that if injunctive relief of any kind is to be granted, it must be limited to Roe and Voe. Such a limitation would be inappropriate for several reasons. For one, plaintiff OutServe has the right to assert associational standing and seek relief on behalf of its members who face imminent and irreparable injury due to defendants' policies. There are at least four active-duty Air Force members who are members of OutServe and who are identically
46 The order will not address the enlistment of HIV-positive individuals or the reenlistment of HIV-positive servicemembers whose terms of service have expired. Nor will defendants be enjoined at this time "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 are not being separated" [Dkt. No. 34-1]. As it currently stands, the preliminary record does not contain information that would allow the Court to evaluate the reasons for, and consequences of, that requested relief. Of course, the Court has "both statutory and equitable authority to modify" an injunctive order, Transp., Inc. v. Mayflower Servs., Inc., 769 F.2d 952,954 (4th Cir. 1985), and the denial of this aspect of plaintiffs' motion is without prejudice to plaintiffs' ability to seek modification of the order should the need arise.
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situated to Roe and Voe. Because of the longstanding stigma and discrimination facing those
living with HIV, it may be difficult to identify potential plaintiffs in a case of this nature.
Granting relief to all similarly situated servicemembers is thus the only way to ensure uniform,
fair, rational treatment of individuals who belong to a vulnerable, and often invisible, class.
Moreover, plaintiffs' entitlement to injunctive relief in this civil action is not so much dependent
on characteristics peculiar to Roe and Voe; rather, it flows from defendants' reliance on an
arbitrary, across-the-board determination that HIV-positive servicemembers must be deemed
ineligible to deploy to CENTCOM, regardless of each servicemember's actual physical
condition. That determination is flawed, and its uncritical application will be equally flawed no
matter whether the servicemember is named Roe or Doe or whether he hails from Portland,
Oregon or Portland, Maine. This case deals with national institutions, national policies, and
national interests; it is thus unsurprising that the appropriate scope of relief should be national as
well. Servicemembers who enlist in the Air Force do so with the expectation that they will fly
under one flag and answer to one Department. They 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.47
47 So-called universal injunctions are the subject of fierce debate. Compare, e.g., Trump v.
Hawaii, 138 S. Ct. 2392, 2429 (2018) (Thomas, J., concurring) (labeling universal injunctions
"legally and historically dubious"), with, e.g., Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065, 1090-1104 (2018) (reviewing practical and doctrinal reasons in favor of universal injunctions), and Spencer E. Amdur & David Hausman, Response, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. F. 49, 52 (2017) ("[W]hen many people face the same genuinely irreparable injury as the plaintiff, a complete injunction of the illegal policy serves an important purpose."). For now, they remain a viable part of a district court's equitable powers and may be used where appropriate. Indeed, in International Refugee Assistance Project, the Supreme Court rejected portions of a district court's injunctive order as overbroad but left in place relief that applied not just to the plaintiffs but also to "similarly situated" individuals. 137 S. Ct. at 2087 (per curiam). That case suggests that there is no categorical rule prohibiting injunctive relief reaching nonparties; rather, what governs the
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Although plaintiffs have at times suggested that they seek relief on behalf of all members of the Armed Forces, the relief granted will be limited to active-duty members of the Air Force. The record reveals that there are meaningful differences in the way each military department has approached the issue of HIV-positive servicemembers, and the Court does not discount the possibility that another department's policies could be supported by a rational basis and applied in a manner consistent with the APA. Similarly uncertain is whether the foregoing analysis would apply to HIV-positive servicemembers who are on restricted duty of one kind or another. Without a firmer basis in evidence, any broader relief would be inappropriate.
IV. CONCLUSION
The military is an institution like no other in our system of government. It has unique
institutional interests and experience. The decisions it makes are thus entitled to deference from the coordinate branches, and particularly from the judicial branch, whose officers are largely shielded from the exigencies of military life. Nonetheless, the military remains a branch of government and so is bound to follow the Constitution and laws of the United States. And the judiciary's responsibility remains to enforce those laws and protect the rights of individuals vulnerable to arbitrary exercises of governmental authority. Courts must examine questions of military policy with care and humility-but examine them they must.
Here, plaintiffs have made a strong preliminary showing that the Air Force's approach to servicemembers living with HIV is irrational, inconsistent, and at variance with modem science. Accordingly, plaintiffs' motion for a preliminary injunction will be granted in part and denied in
issuance of equitable relief is, as always, the need to ensure that the relief is carefully tailored to address only those defects giving rise to the specific irreparable injury as demonstrated in the preliminary injunction record.
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part, and defendants' motion to dismiss denied, by an appropriate Order to be issued with this Memorandum Opinion.
~
Entered this 15' day of February, 2019.
Alexandria, Virginia

Leonie M. Brinkema

United States Dfatrict Judge

. -: ....

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PUBLISHED UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1410
RICHARD ROE; VICTOR VOE; OUTSERVE-SLDN, INC., Plaintiffs - Appellees
v. UNITED STATES DEPARTMENT OF DEFENSE; MARK T. ESPER, in his official capacity as Secretary of Defense; and BARBARA M. BARRETT, in her official capacity as Secretary of the Air Force,
Defendants - Appellants.

HIV MEDICINE ASSOCIATION; AMERICAN ACADEMY OF HIV MEDICINE; GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY; INFECTIOUS DISEASES SOCIETY OF AMERICA; SECRETARY ERIC K. FANNING; SECRETARY DEBORAH LEE JAMES; SECRETARY RAY MABUS; DR. LAWRENCE J. KORB; REAR ADMIRAL ALAN M. STEINMAN; CAPTAIN THOMAS T. CARPENTER; AIDS UNITED; THE AMERICAN PUBLIC HEALTH ASSOCIATION; DUKE LAW HEALTH JUSTICE CLINIC; SOUTHERN AIDS COALITION; THE NATIONAL ALLIANCE OF STATE AND TERRITORIAL AIDS DIRECTORS; NMAC,
Amici Supporting Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:18-cv-01565-LMB-IDD)

Argued: September 18, 2019

Decided: January 10, 2020

Amended: January 14, 2020

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Before WYNN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Diaz and Judge Floyd joined.
ARGUED: Lewis Yelin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Geoffrey Paul Eaton, WINSTON & STRAWN LLP, Washington, D.C., for Appellees. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Ryan D. Newman, Deputy General Counsel, Michael J. Fucci, Associate General Counsel, Mark B. Stern, Marleigh D. Dover, James Y. Xi, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellants. Scott A. Schoettes, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Chicago, Illinois; Peter Perkowski, OUTSERVE-SLDN, INC., Washington, D.C.; Lauren Gailey, John W.H. Harding, Laura Cooley, WINSTON & STRAWN LLP, Washington, D.C., for Appellees. Mary H. Schnoor, Chicago, Illinois, Benjamin C. Mizer, Parker A. Rider-Longmaid, JONES DAY, Washington, D.C., for Amici HIV Medicine Association, American Academy of HIV Medicine, GLMA: Health Professionals Advancing LGBTQ Equality, and Infectious Diseases Society of America. Peter J. Anthony, Laura Seferian, Washington, D.C., Richard D. Salgado, Dallas, Texas, Monica R. Thompson, DENTONS US LLP, Phoenix, Arizona, for Amici Former Military Officials. Bennett Klein, Chris Erchull, GLBTQ LEGAL ADVOCATES & DEFENDERS, Boston, Massachusetts; Kevin J. Minnick, Adam K. Lloyd, Los Angeles, California, for Amici AIDS United, The American Public Health Association, Duke Law Health Justice Clinic, Southern AIDS Coalition, The National Alliance of State & Territorial AIDS Directors, and NMAC.

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WYNN, Circuit Judge: Richard Roe and Victor Voe are active-duty members of the Air Force.1 They were
discharged when the Air Force determined that their chronic but managed illness—HIV— makes them unfit for military service. Roe and Voe sought a preliminary injunction to maintain the status quo while they challenged their discharges. The district court concluded 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. The Government appeals. For the reasons that follow, we affirm.
I. A. In the early 1980s, many young and otherwise healthy people became ill with “a wide array of rare and often deadly infections.” J.A. 656. In the United States alone, thousands died. Researchers identified acquired immunodeficiency syndrome (AIDS) as the reason so many otherwise healthy people died from these infections, but they did not understand the cause of AIDS. The people most frequently diagnosed with AIDS belonged to marginalized and stigmatized groups—gay men, intravenous drug users, Haitians, and hemophiliacs—and the disease acquired the colloquial moniker “gay cancer.” In 1984, researchers discovered that AIDS was caused by the human immunodeficiency virus (HIV), which could infect any person sufficiently exposed. However, “by that time, many
1 Roe and Voe proceed pseudonymously. Documents containing identifying information have been filed under seal. Redacted versions are part of the public record.
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Americans already believed the cause of the disease to be a deviant lifestyle, a stigmatizing belief that . . . AIDS [w]as a punishment from God.” J.A. 657. Stigma, fear, and misinformation about HIV persist today.
Unlike some viruses, 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. However, even then, transmission is unlikely. The Centers for Disease Control and Prevention estimate the per-exposure risk of transmitting untreated HIV during the riskiest sexual activity—receptive anal intercourse—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%. For other exposures to untreated HIV—like biting, spitting, and throwing bodily fluids—the CDC found the risk to be “negligible,” meaning transmission of untreated HIV is “technically possible but unlikely and not well documented.” J.A. 599.
In 1996, antiretroviral therapy for HIV became widely available. Today, there 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
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required medications into a single pill taken daily. J.A. 598. The pills have no special handling or storage requirements and tolerate extreme temperatures well. They have minimal side effects and impose no dietary restrictions. And 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. J.A. 597, 795. In addition to medication, individuals with HIV receive viral load testing, which is usually conducted quarterly until the patient reaches an undetectable viral load. Then, testing is reduced to three times a year, and finally, once the viral load is undetectable for two years, testing is reduced to a semiannual basis. Testing is routine and can be performed by a general practitioner. Where on-site testing is unavailable, a blood sample can be shipped to a lab.
Antiretroviral therapy is effective for virtually every person living with HIV. Usually, the virus develops resistance to antiretroviral therapy only when individuals fail to adhere to their treatment regimens. But even then, switching to a different regimen returns the individual to viral suppression. And failing to adhere to treatment does not result in immediate adverse health consequences. It “often takes weeks for an individual’s viral load to reach a level that would not be considered ‘suppressed.’” J.A. 795. If nonadherence continues, the person enters a clinical latency period during which the person may not have any symptoms or negative health outcomes. This clinical latency period “can last for years,” and “can be reversed by restarting [treatment].” Id.
Antiretroviral therapy has both increased the quality of life of individuals with HIV and decreased the chance of transmission. In contrast to the fraction-of-a-percent exposure
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risks for untreated HIV addressed above, according to the CDC, “people who take [antiretroviral medication] daily as prescribed and achieve and maintain an undetectable viral load have effectively no risk of sexually transmitting the virus to an HIV negative partner.” J.A. 600. And other than through blood transfusions—again, “HIV infection is among a number of medical conditions that preclude blood donation”—risk of transmission from a person with an undetectable viral load through non-sexual means such as percutaneous needlestick injuries is very low, if such a risk exists at all. J.A. 459. An HIV diagnosis was “[o]nce considered invariably fatal within approximately eight to ten years,” but now, HIV is a “chronic, treatable condition.” J.A. 794. 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.” Id.
B. The United States military does not permit HIV-positive individuals to enlist, nor does the military allow a servicemember who acquired HIV after joining to be appointed as an officer. However, servicemembers who are diagnosed with HIV after enlistment may not be discharged solely based on their HIV-positive status. Department of Defense policies address retention of servicemembers with medical conditions generally and HIVpositive servicemembers specifically. Department of Defense Instruction 6485.01, which applies to all military branches, provides that servicemembers diagnosed with HIV “will be referred for appropriate treatment and a medical evaluation of fitness for continued service.” J.A. 134. And servicemembers “determined to be fit for duty will be allowed to serve in a manner that
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ensures access to appropriate medical care.” Id. When determining fitness, HIV-positive servicemembers are evaluated “in the same manner as a Service member with other chronic or progressive illnesses.” Id.
The Air Force has also implemented policies for retaining HIV-positive servicemembers. For example, like the Department of Defense generally, the Air Force requires that “HIV-positive personnel . . . undergo medical evaluation for the purpose of determining status for continued military service.” J.A. 350. Air Force Instruction 44-178 provides that HIV-positive status “alone is not grounds for medical separation or retirement.” J.A. 351. It further clarifies, “[f]orce-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.” J.A. 352. An attachment to Air Force Instruction 44-178 reiterates that servicemembers “who are able to perform the duties of their office, grade, rank and/or rating, may not be separated solely on the basis of laboratory evidence of HIV infection.” J.A. 381.
Accordingly, Department of Defense and Air Force policies permit HIV-positive servicemembers to continue to serve, so long as they are determined to be fit. Department of Defense Instruction 1332.18 governs servicemember fitness determinations under the military’s Disability Evaluation System. 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.” J.A. 79. Such a finding requires consideration of “all relevant evidence,” including whether the servicemember: “can perform the common military tasks required” of the servicemember’s position; is medically permitted to take a
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“required physical fitness test”; can be deployed “individually or as part of a unit, . . . to any vessel or location specified by the Military Department”; and is able to fulfill any “specialized duties” of assignment. J.A. 79–80. In determining servicemember fitness, Department of Defense Instruction 1332.18 requires the relevant decision-maker to “cite objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture, to determine a Service member is unfit because of disability.” J.A. 82. The instruction further clarifies, “[d]oubt that cannot be resolved with evidence will be resolved in favor of the Service member’s fitness.” Id.
In making servicemember fitness determinations, the military considers deployability. And Department of Defense Instruction 6490.07 governs deploymentlimiting medical conditions. This instruction is intended to ensure personnel are “medically able to accomplish their duties in deployed environments” by creating “minimum medical standard[s] for all deploying and deployed DoD personnel.” J.A. 136–37. It provides that servicemembers with “existing medical conditions” may deploy based on a medical assessment and when certain criteria—including that a servicemember’s condition is stable and will not require “routine evacuation out of theater” for evaluation and that needed medications can be provided in theater through the Military Health System—are met. J.A. 138.
Department of Defense Instruction 6490.07 also provides a non-comprehensive list of medical conditions that prevent servicemembers 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.” J.A. 146. However, Department
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of Defense Instruction 6490.07 does not preclude deployment or require a waiver for deployment of HIV-positive servicemembers without a progressive clinical illness or immunological deficiency.
Department of Defense Instruction 6490.07 permits “[m]ore stringent . . . Servicespecific readiness requirements.” J.A. 137. And the Air Force enacted such requirements in 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. J.A. 351. The waiver process follows the “normal procedures established for chronic diseases.” Id.
Eighty percent of all Air Force deployments are to Central Command’s (CENTCOM) area of responsibility, which includes theater-level military operations spanning North Africa, Central Asia, and the Middle East. CENTCOM’s Modification 13 to its Individual Protection and Individual/Unit Deployment Policy (Modification 13) sets policy for personnel deploying to its area of responsibility. Specifically, Modification 13 provides that 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.” J.A. 393. It also lists “disqualifying medical conditions” that preclude deployment without a waiver. J.A. 412. Within that list, Modification 13 states that “[c]onfirmed HIV infection is disqualifying for deployment.” J.A. 417.

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C. From a young age, Roe wanted a career in the Air Force. He enlisted in 2012 and currently serves as a Staff Sergeant. During his time in the Air Force, he has received numerous awards and has been entrusted with increasing levels of responsibility. He mentors other airmen, describing that mentorship role as “one of the highlights of [his] military career.” J.A. 588. In October 2017, Roe was diagnosed with HIV. He immediately began antiretroviral treatment. And now, he takes one pill per day and has an undetectable viral load. The pills are stored in an ordinary bottle, do not require special storage, and are refilled every 90 days. His doctors have not recommended his daily work be restricted as a result of his diagnosis. Following his diagnosis, Roe was referred to the Disability Evaluation System for assessment of his fitness for continued military service. Roe’s commanding officer described him as “a valued team member” and recommended he be retained. J.A. 589. And Roe’s primary care doctor recommended he be returned to duty. Nevertheless, the Air Force’s Informal Physical Evaluation Board recommended Roe be discharged. Roe appealed to the Air Force’s Formal Physical Evaluation Board. On appeal, Roe provided additional letters from his commanding officers and colleagues supporting his retention. Additionally, Roe submitted a letter from Lt. Col. Jason Okulicz, Director of the HIV Medical Evaluation Unit at the San Antonio Military Medical Center. In that letter, Lt. Col. Okulicz stated that there was no “medical reason to explain why [Roe] would not be returned to duty.” J.A. 590. Nonetheless, the Formal Physical Evaluation Board also recommended Roe be discharged.
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Upon review, the Secretary of the Air Force Personnel Council affirmed the decision. In its memorandum, the Council acknowledged that Roe was “compliant with all treatment,” “currently asymptomatic,” and had an undetectable viral load. J.A. 545. And the Council noted that Roe was “able to perform all in garrison duties” and that his “commander strongly support[ed] his retention.” Id. But the Council concluded Roe’s HIV status “precludes him from being able to deploy world-wide without a waiver and renders him ineligible for deployment to the Central Command (CENTCOM) Area of Responsibility (AOR) where the majority of Air Force members are expected to deploy.” Id. Because “[d]eployability is a key factor in determining fitness for duty . . . and [Roe] belongs to a career field with a comparatively high deployment rate[,] . . . the Board determined he is unfit for continued military service.” Id. Accordingly, Roe’s discharge date was set for March 28, 2019.
Voe experienced a nearly identical process. Voe enlisted in 2011 and has deployed twice in his time in the Air Force. In March 2017, Voe was diagnosed with HIV. He began antiretroviral treatment within two weeks, and his viral load reached undetectable levels in August 2017. He takes two pills a day. The pills are stored in an ordinary bottle, do not require special storage, and are refilled every 90 days. Voe takes his medication as prescribed and continues to have an undetectable viral load. His doctors have not recommended restricting his daily work as a result of his diagnosis. Voe would like to continue to serve and is “willing to go anywhere in the world to fulfill [his] duties.” J.A. 579.
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After Voe’s diagnosis, he was referred to the Disability Evaluation System for evaluation of his fitness for continued military service. Both the Informal Physical Evaluation Board and the Formal Physical Evaluation Board recommended that Voe be discharged. Upon review, the Secretary of the Air Force Personnel Council affirmed the decision and issued a memorandum almost identical to Roe’s. The Council acknowledged that Voe was “compliant with all treatment,” “currently asymptomatic,” and had an undetectable viral load. J.A. 553. The Council observed Voe was “able to perform all in garrison duties” and that his “commander strongly support[ed] his retention.” Id. But the Council concluded Voe’s HIV status “precludes him from being able to deploy world-wide without a waiver and renders him ineligible for deployment to the Central Command (CENTCOM) Area of Responsibility (AOR) where the majority of Air Force members are expected to deploy.” Id. Because “[d]eployability is a key factor in determining fitness for duty . . . and [Voe] belongs to a career field with a comparatively high deployment rate[,] . . . the Board determined he is unfit for continued military service.” Id. Voe’s discharge date was set for February 25, 2019.
Roe and Voe were not alone in receiving this disposition. OutServe-SLDN (OutServe), an organization that works on behalf of the LGBTQ+ and HIV-positive military community, identified four other HIV-positive Air Force servicemembers found unfit for duty and ordered discharged based upon identical reasoning.
D. In December 2018, Plaintiffs filed suit against the Government in the United States District Court for the Eastern District of Virginia. Plaintiffs contended the Air Force’s
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discharge decisions and the military’s deployment policies violated the Administrative Procedure Act and the equal protection component of the Fifth Amendment’s Due Process Clause. Plaintiffs sought declaratory and injunctive relief prohibiting the Air Force from discharging them and prohibiting the Air Force and the Department of Defense from enforcing their policies in a manner that limits the deployability of servicemembers diagnosed with HIV. Plaintiffs moved for a preliminary injunction, and the Government moved to dismiss the case.
In an opinion dated February 15, 2019, the district court granted in part and denied in part Plaintiffs’ motion and denied the Government’s motion. See Roe v. Shanahan, 359 F. Supp. 3d 382 (E.D. Va. 2019). The district court entered an injunction prohibiting the Air Force from “separating or discharging from military service Richard Roe, Victor Voe, 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.” Dkt. No. 73. The district court later modified the injunction to allow the separation or discharge of Air Force servicemembers who did not wish to be retained during the litigation. The Government appeals the district court’s opinion and order denying the Government’s motion to dismiss and granting in part Plaintiffs’ motion for a preliminary injunction.
II. As a preliminary matter, the Government contends the district court erred in denying its motion to dismiss because this case presents a nonjusticiable military controversy. To determine whether a case involving a military decision is justiciable, courts in this circuit
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apply the framework articulated in Mindes v. Seaman, 453 F.2d 197, 201–02 (5th Cir.
1971). See Guerra v. Scruggs, 942 F.2d 270, 276 (4th Cir. 1991); Williams v. Wilson,
762 F.2d 357, 359–60 (4th Cir. 1985). In Aikens v. Ingram, a panel of this Court declined
to “pass[ ] on the continued viability of the Mindes test in this circuit” and observed that
three circuits have rejected the test. 811 F.3d 643, 648 & n.5 (4th Cir.), as amended (Feb.
1, 2016). However, this circuit’s adoption of the Mindes test has not been “overruled by a
subsequent en banc opinion of this court or a superseding contrary decision of the Supreme
Court” and is therefore binding here. United States v. Collins, 415 F.3d 304, 311 (4th Cir.
2005). Accordingly, we consider de novo the threshold legal question of justiciability under
Mindes. See Aikens, 811 F.3d at 647.
Under Mindes, a justiciable case challenging a military action must allege “the
deprivation of a constitutional right, or . . . that the military has acted in violation of
applicable statutes or its own regulations.” Guerra, 942 F.2d at 276 (quoting Mindes,
453 F.2d at 201). Next, “the plaintiff must have exhausted the ‘available intraservice
corrective measures.’” Id. (quoting Mindes, 453 F.2d at 201). Where those threshold
requirements are met, the court balances the following four factors:
1. The nature and strength of the plaintiff’s challenge to the military determination. . . .
2. The potential injury to the plaintiff if review is refused. 3. The type and degree of anticipated interference with the military function.
Interference per se is insufficient since there will always be some interference when review is granted, but if the interference would be such as to seriously impede the military in the performance of vital duties, it militates strongly against relief. 4. The extent to which the exercise of military expertise or discretion is involved.
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Id. (quoting Mindes, 453 F.2d at 201–02 (omission in original)). The Government recognizes the Mindes framework “parallels the application of the
preliminary injunction factors.” Gov’t Br. at 19. And other courts have recognized this parallel. See, e.g., Aikens, 811 F.3d at 648 n.5. Because this opinion addresses the relevant factors in detail in reviewing the preliminary injunction, only a brief discussion is necessary here.
Plaintiffs’ claims present a justiciable military controversy. Mindes’s two threshold requirements are satisfied. First, Plaintiffs allege their discharges violate statutory, regulatory, and constitutional rights. Second, the district court determined—and on appeal the Government does not dispute—that Plaintiffs sufficiently exhausted available intraservice corrective measures and that any further intraservice remedies would be futile. See Roe, 359 F. Supp. 3d at 401–04.
Further, each of the four Mindes factors supports judicial review. First, as explained below, Plaintiffs are likely to succeed on at least one claim—either that the ordered discharges of Roe, Voe, and the similarly situated members of OutServe violated the APA, or that the challenged deployment policies violate the APA. Second, absent review, Plaintiffs will suffer irreparable harm: discharge without an individualized assessment of their fitness for continued service and for reasons unrelated to their ability to serve, coupled with the prospect of being forced to disclose their HIV status to explain the change in their intended careers. Third, review creates minimal interference with the military’s function because, as discussed below, at the core of Plaintiffs’ claims is an allegation that the Air Force failed to follow its own stated policies and make nonarbitrary, individualized
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determinations about each servicemember’s fitness for service. Requiring the military to follow its own policies does not interfere with its functions. Fourth, by declining to make individualized determinations regarding servicemembers’ fitness for service, the military failed to apply its expertise to the evidence before it. And the military cannot claim that a failure to follow its own written policies is discretionary. Review thus presents a minimal risk of interference with military expertise and discretion. On balance under the Mindes factors, this case presents a justiciable controversy.
The Government identifies no other basis for reversing the district court’s denial of the Government’s motion to dismiss. See United States v. Washington, 743 F.3d 938, 941 n.1 (4th Cir. 2017) (“Issues that [the appellant] failed to raise in his opening brief are waived.”); see also 4th Cir. R. 34(b) (limiting review to issues raised in the appellant’s opening brief). We therefore affirm the district court’s denial of the Government’s motion to dismiss.
III. “We ‘review the decision to grant or deny a preliminary injunction for an abuse of discretion.’” Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, 915 F.3d 197, 213 (4th Cir. 2019) (quoting Safety-Kleen, Inc. v. Wyche, 274 F.3d 846, 859 (4th Cir. 2001)). “[A]buse of discretion is a deferential standard,” and we may not reverse “so long as ‘the district court’s account of the evidence is plausible in light of the record viewed in its entirety.’” Id. (quoting Walton v. Johnson, 440 F.3d 160, 173 (4th Cir. 2006) (en banc)). “A clear error in factual findings or a mistake of law is grounds for reversal.” Id.
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“A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’” Mountain Valley Pipeline, LLC v. W. Pocahontas Props. Ltd. P’ship, 918 F.3d 353, 366 (4th Cir. 2019) (quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008)). A party “seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. Although Plaintiffs “need not establish a ‘certainty of success,’” they must “make a clear showing that [they are] likely to succeed at trial.” Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017) (quoting Pashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013)).
“This case involves ‘complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force.’” Winter, 555 U.S. at 24 (quoting Gilligan v. Morgan, 413 U.S. 1, 10 (1973)). Accordingly, “[w]e ‘give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.’” Id. (quoting Goldman v. Weinberger, 475 U.S. 503, 507 (1986)). Still, we are mindful that “military interests do not always trump other considerations.” Id. at 26.
IV. The district court did not err in concluding that Plaintiffs are likely to succeed on the merits of at least one claim. Here, two agency actions are at issue: the Government’s policies regarding deployment of HIV-positive servicemembers, and the Air Force’s decisions to discharge Roe, Voe, and the four OutServe members, decisions which
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themselves looked to the deployment policies. At this preliminary stage, Plaintiffs have shown they are likely to succeed on their claim that the Government violated the APA by acting arbitrarily or capriciously. First, if the deployment policies permit servicemembers to seek a waiver to deploy to CENTCOM’s area of responsibility, the Air Force violated the APA because it discharged the servicemembers without an individualized assessment of each servicemember’s fitness, instead predicting they could not deploy as a result of their HIV status. Second, even if the Air Force was correct that CENTCOM’s policies render the servicemembers categorically ineligible to deploy to its area of responsibility, Plaintiffs have shown they are likely to succeed on their claim that the deployment policies at issue violate the APA because the Government has not—and cannot—reconcile these policies with current medical evidence.
A. The APA commands courts to “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). But “[o]ur scope of review is ‘narrow’: we determine only whether the [agency] examined ‘the relevant data’ and articulated ‘a satisfactory explanation’ for [its] decision, ‘including a rational connection between the facts found and the choice made.’” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2569 (2019) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Nonetheless, “courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking.” Judulang v. Holder, 565 U.S. 42, 53 (2011). Indeed, the APA “embodies the basic presumption of judicial review to one
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‘suffering legal wrong because of agency action.’” Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967) (quoting 5 U.S.C. § 702), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). And “[a]lthough we accord substantial deference to an agency’s final action and presume it valid, ‘the arbitrary-and-capricious standard does not reduce judicial review to a rubber stamp of agency action.’” Ergon-W. Va., Inc. v. EPA, 896 F.3d 600, 609 (4th Cir. 2018) (quoting Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581, 587 (4th Cir. 2012)).
To comply with the APA, the “agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Sierra Club v. Dep’t of the Interior, 899 F.3d 260, 293 (4th Cir. 2018) (quoting State Farm, 463 U.S. at 43). 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.” Id. (quoting State Farm, 463 U.S. at 43).
In reviewing an agency action, we “may not supply a reasoned basis for the agency’s action that the agency itself has not given,” although “we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285–86 (1974). We “consider the record made before the agency at the time the agency acted,” so “post-hoc rationalizations . . . have ‘traditionally been found to be an inadequate basis for review.’” Dow
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AgroSciences LLC v. Nat’l Marine Fisheries Serv., 707 F.3d 462, 467–68 (4th Cir. 2013) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419 (1971)). Courts may consider “affidavits not contained in the agency record . . . where ‘there was such failure to explain administrative action as to frustrate effective judicial review.’” Dow AgroSciences, 707 F.3d at 468 (quoting Camp v. Pitts, 411 U.S. 138, 142–43 (1973)). However, such post-hoc materials must only provide “background information or evidence of whether all relevant factors were examined by an agency,” or be “merely explanatory of the original record and . . . contain no new rationalizations.” AT&T Info. Sys., Inc. v. Gen. Servs. Admin., 810 F.2d 1233, 1236 (D.C. Cir. 1987) (internal quotation marks omitted).
As an initial matter, the Government has taken inconsistent positions on whether HIV-positive servicemembers may deploy to CENTCOM’s area of responsibility. Three policies bear on deployment of HIV-positive Air Force servicemembers: Department of Defense Instruction 6490.07, which requires HIV-positive servicemembers who also have a “progressive clinical illness or immunological deficiency” to obtain a waiver before deploying; Air Force Instruction 44-178, which requires all HIV-positive Air Force servicemembers to obtain a waiver before deploying outside the continental United States, Alaska, Hawaii, or Puerto Rico; and Modification 13, which governs deployment of HIVpositive servicemembers to CENTCOM’s area of responsibility. Before this Court, the parties focus on CENTCOM’s policy under Modification 13.
Modification 13 lists conditions that require a servicemember to obtain a waiver before deploying to CENTCOM’s area of responsibility. That list includes the following item: “Confirmed HIV infection is disqualifying for deployment, [in accordance with
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Department of Defense Instructions 6485.01 and 6490.07], service specific policies, and agreements with host nations. Note that some nations within the CENTCOM [area of responsibility] have legal prohibitions against entering their [countries] with this diagnosis.” J.A. 417.
Previously, the Government has treated Modification 13 as a categorical ban. For example, in a 2018 report to Congress, which the Government cites as an explanation for its policies, the Department of Defense described a categorical ban, reporting “current Service policies do not permit HIV-infected Service members to deploy to combat theaters of operation or in support of other contingency operations.” J.A. 462. Similarly, in the memoranda discharging Roe, Voe, and the four OutServe servicemembers, the Air Force described HIV as “render[ing the servicemembers] ineligible for deployment to the Central Command” area of responsibility. For all other deployments, the Air Force simply noted the servicemembers were precluded “from being able to deploy world-wide without a waiver.” J.A. 545. Moreover, declarations offered by the Government in litigation describe issuing a waiver for an HIV-positive servicemember as “extremely unlikely” and acknowledge that CENTCOM’s current waiver-authorizing official has never granted a waiver for an HIV-positive servicemember. J.A. 474.
Now, however, the Government changes its position, suggesting CENTCOM “requires HIV-positive airmen to obtain a waiver to deploy to its area of responsibility.” Gov’t Br. at 6. That argument is supported by CENTCOM’s Modification 13 which itself provides, “[m]edical clearance to deploy with any of the following documented medical conditions may be granted, except where otherwise noted,” and then lists HIV as a non-
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deployable condition. J.A. 414. Additionally, the Government’s declarations assert that in reviewing previous waiver requests, CENTCOM officials “conduct[ed] a thorough risk assessment for each waiver request and consult[ed] with the CENTCOM Surgeon and Component Surgeons.” J.A 481.
At this preliminary stage, the limited record does not conclusively show whether CENTCOM’s deployment policies act as a categorical ban on deploying HIV-positive servicemembers to CENTCOM’s area of responsibility—a view the Air Force took in discharging Plaintiffs—or whether CENTCOM provides an individual assessment to each HIV-positive servicemember who seeks a waiver. Nonetheless, Plaintiffs have shown a likelihood of success in either instance. If Modification 13 is not a categorical ban, 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 the policy.
B. To the extent Modification 13 does not operate as a categorical ban, 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 servicemember’s fitness for duty or separation under the Disability Evaluation System. Specifically, Department of Defense Instruction 1332.18 designates a servicemember as unfit “when the evidence establishes that the member, due to disability,
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is unable to reasonably perform duties of his or her office, grade, rank, or rating.” J.A. 79; see also 10 U.S.C. § 1203 (providing for separation of a servicemember “[u]pon a determination by the Secretary concerned that a member . . . is unfit to perform the duties of the member’s office, grade, rank or rating because of physical disability”); id. § 1214 (“No member of the armed forces may be retired or separated for physical disability without a full and fair hearing if he demands it.”).
Additionally, Department of Defense Instruction 1332.18 requires consideration of whether the servicemember “can perform the common military tasks required, ” as well as whether the servicemember is permitted to take “the respective Service’s required physical fitness test.” J.A. 80. It also requires consideration of whether the servicemember “is deployable individually or as part of a unit, with or without prior notification, to any vessel or location specified by the Military Department” and, for servicemembers “whose medical condition disqualifies them for specialized duties, whether the specialized duties constitute the member’s current duty assignment.” Id. Moreover, Department of Defense Instruction 1332.18 requires “objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture, to determine a Service member is unfit because of disability.” J.A. 82. In sum, a determination through the Disability Evaluation System that a servicemember is unfit for duty must be based on objective evidence in the record and must consider the individual servicemember’s physical abilities, fitness, and deployability.
Here, the record shows the Air Force did not perform such an individualized determination. Specifically, the Air Force discharge memoranda contain identical language briefly stating that each servicemember’s HIV-positive status “renders him ineligible for
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deployment to the Central Command (CENTCOM) Area of Responsibility (AOR), where the majority of Air Force members are expected to deploy.” J.A. 545, 553, 563–70. The conclusion that HIV renders a servicemember ineligible for deployment is inconsistent with Modification 13, which allows HIV-positive servicemembers to seek a waiver to deploy to CENTCOM’s area of responsibility.
Seeking to rectify this inconsistency, the Government offers a declaration from Martha P. Soper, whose “office is located within the Deputy Assistant Secretary’s office” and whose “specific duties deal with health policy, which includes oversight of the” Air Force’s Disability Evaluation System. J.A. 469. To address the Air Force’s conclusion that Plaintiffs cannot deploy to CENTCOM’s area of responsibility, Soper states, “While CENTCOM’s current guidance allows for the theoretical possibility of a waiver for an individual with asymptomatic HIV to deploy [to CENTCOM’s area of responsibility], the considerations noted in CENTCOM’s policy make it extremely unlikely that such a waiver would ever be granted.” J.A. 474. We consider this declaration necessary to facilitate judicial review but merely explanatory of the Air Force’s discharge memoranda. See Dow AgroSciences, 707 F.3d at 467–68; AT&T Info. Sys., 810 F.2d at 1236.
Although the Air Force concluded that Plaintiffs cannot deploy to CENTCOM’s area of responsibility, Modification 13 provides that CENTCOM, not the Air Force, determines servicemembers’ eligibility to deploy to its area of responsibility. And Modification 13 specifies a waiver process: “Medical clearance to deploy with any of the following documented medical conditions,” which includes confirmed HIV infection, “may be granted, except where otherwise noted.” J.A. 414. Thus, Modification 13 does
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not, on its face, preclude waivers for HIV-positive servicemembers. Further, the Government asserts—in its briefing to this Court and in litigation declarations in the record—that Modification 13 allows an HIV-positive servicemember to request a waiver for authorization to deploy to the area. And Modification 13 requires that the “medical evaluator . . . carefully consider whether the climate, altitude, nature of available food and housing, availability of medical, behavioral health, dental, surgical, and laboratory services, or whether other environmental and operational factors may be hazardous to the deploying person’s health.” Id. It also sets forth the waiver-granting authority and an appeals process.
To explain the waiver process, the Government offers the declaration of Preventive Medicine Officer and primary Waiver Action Officer for CENTCOM, Kevin Cron. Again, we consider this affidavit—which was not in the record before the agency—only to provide background and explanation of that record. See Dow AgroSciences, 707 F.3d at 467–68. Cron states he has “reviewed waiver requests from HIV-positive service members” seeking deployment to CENTCOM but has “not granted a deployment waiver for a HIV-positive Service member.” J.A 481. He further states that in reviewing those waiver requests, he “conduct[ed] a thorough risk assessment for each waiver request and consult[ed] with the CENTCOM Surgeon and Component Surgeons” and ultimately “determined in each case that the risks of deploying a HIV-positive Service member were too great to justify waiver approval.” J.A 481–82.
CENTCOM’s waiver process, as the Government has represented it to this Court, includes an individualized determination. In particular, in assessing each servicemember’s
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waiver request, CENTCOM considers the risks of deploying each servicemember in light of that servicemember’s medical condition, taking into account the expertise of medically trained officials. The APA requires such reasoned decision-making in this circumstance.2 But the Air Force’s discharge memoranda do not entertain the possibility of such an individualized waiver determination, and the record is entirely lacking in an explanation reflecting an individualized determination for each servicemember. The Soper and Cron declarations purport to provide such an explanation, but even if credited, the Government’s post-hoc attempt to explain its decisions still fails to provide any individualized assessment of the servicemembers ordered discharged. According to the declarations, CENTCOM’s primary Waiver Action Officer repeatedly denied waivers for HIV-positive servicemembers, and the Air Force viewed such a waiver as a “theoretical possibility” that was “extremely unlikely” to be granted. J.A. 474. In light of this explanation, in stating that each servicemember’s HIV-positive status “renders him ineligible” to deploy to CENTCOM, the Air Force merely predicted that HIV-positive servicemembers would not receive a waiver from CENTCOM under Modification 13.
By predicting all HIV-positive servicemembers would be denied a waiver instead of allowing Roe, Voe, and the OutServe members to seek a waiver and obtain CENTCOM’s waiver determination, the Air Force cut short the individualized
2 The Government has not argued the APA’s requirements of reasoned decisionmaking and satisfactory explanation on the record do not apply here. And indeed, Congress could have excepted this military action from this requirement, but chose not to. See 5 U.S.C. § 701(b)(1) (excluding “courts martial and military commissions” and “military authority exercised in the field in time of war or in occupied territory” from the APA’s definition of “agency”).
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determinations required by Department of Defense policy and never gave CENTCOM— or any military entity—the opportunity to examine the objective evidence of each servicemember’s physical condition, symptoms, treatment requirements, and transmission risks. Instead, the Air Force discharged Roe, Voe, and the four OutServe members based on speculation that HIV-positive servicemembers could not deploy to CENTCOM’s area of responsibility. Such a categorial predictive assessment is not “a satisfactory explanation” for discharging each servicemember, and in using this predictive assessment to discharge 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. See State Farm, 463 U.S. at 43; cf. Delta Air Lines, Inc. v. Exp.-Imp. Bank of the U.S., 718 F.3d 974, 978 (D.C. Cir. 2013) (per curiam) (concluding an agency’s unexplained categorical conclusion violated the APA); Arrington v. Daniels, 516 F.3d 1106, 1113–14 (9th Cir. 2008) (concluding a categorical rule promulgated by the Bureau of Prisons violated the APA because one offered rationale was absent from the agency record and the agency did not explain in the record how the second rationale supported the rule). The Air Force’s discharge orders were arbitrary and capricious.
Accordingly, based on the limited record at this preliminary stage, Plaintiffs have shown a likelihood of success on the merits of their claim that the Air Force violated the APA in its discharge decisions. See League of Women Voters v. North Carolina, 769 F.3d 224, 237–38 (4th Cir. 2014) (granting a preliminary injunction where the plaintiffs were likely to succeed on one claim).
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C. As discussed above, the record is ambiguous as to whether the deployment policies allow HIV-positive servicemembers to seek a waiver to deploy to CENTCOM’s area of responsibility or whether the policies operate as a categorical ban. And assuming HIVpositive servicemembers may seek a waiver, the Air Force acted arbitrarily in denying Plaintiffs the opportunity to do so. Alternatively, to the extent Modification 13 operates as a categorical ban, the district court rightly concluded that Plaintiffs are likely to succeed on their claim that the policy violates the APA. See 5 U.S.C. § 706(2)(A).3 Plaintiffs are likely to succeed on the merits of this claim because the Government, by failing to offer an explanation that is reconcilable with the scientific and medical evidence available to it, did not comply with the APA in promulgating this policy. Other than the text of Modification 13 itself and the Cron declaration, which is a post-hoc explanation of the policy, the Department of Defense has offered no rationale for its policy of non-deployment for HIV-positive servicemembers, nor has it identified the evidence it considered in formulating the policy. And the Department of Defense’s statements in a 2018 report to Congress that the policies “accurately reflect current medical literature and expert opinion (consensus standards) regarding transmission and treatment of HIV” cannot substitute for the judicial review provided for by the APA. J.A. 459. Upon
3 Plaintiffs also challenge this policy under the equal protection component of the Fifth Amendment’s Due Process Clause. See U.S. Const. amend. V. Because we conclude Plaintiffs are likely to succeed on the merits of their APA claim, we need not address their equal protection claim. See, e.g., Pashby v. Delia, 709 F.3d 307, 328 (4th Cir. 2013) (concluding a preliminary injunction was appropriate when the plaintiffs had demonstrated a likelihood of success on some, but not all, of their claims).
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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.
The Government relies primarily on the text of Modification 13 to explain its policy. Modification 13’s text suggests three explanations for the policy: the requirements of Department of Defense Instructions 6485.01 and 6490.07; service-specific policies; and “agreements with host nations.” J.A. 417. But Department of Defense Instructions 6485.01 and 6490.07 do not prevent HIV-positive servicemembers from deploying to CENTCOM. In fact, Department of Defense Instruction 6490.07 permits HIV-positive servicemembers to deploy even with “the presence of progressive clinical illness or immunological deficiency,” provided they obtain a waiver. J.A. 146. Similarly, as to service-specific policies, Air Force Instruction 44-178 permits HIV-positive servicemembers to deploy outside the continental United States, Hawaii, Alaska, and Puerto Rico if they obtain waivers “using normal procedures established for chronic diseases.” J.A. 351. Finally, Modification 13 alludes to agreements with host nations and the laws of “some nations” within CENTCOM’s area of responsibility. J.A. 417. But the text of Modification 13 does not explain how such laws and agreements bear on deploying HIV-positive U.S. servicemembers. For example, Modification 13 applies to both military servicemembers and civilians, but does not specify whether host nations’ restrictions similarly apply to both, and whether the inability to enter one nation would preclude deployment to the entire area. Modification 13 thus fails to “articulate a satisfactory explanation” for the policy and fails
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to provide “a ‘rational connection between the facts found and the choice made.’” State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). Indeed, with respect to host nation requirements, the Government has not even articulated the facts found.
Beyond the contradictory or incomplete explanations implied by Modification 13’s text, the record contains no other justification for a categorical ban on deploying HIVpositive servicemembers to CENTCOM’s area of responsibility. Because the agency so failed to explain its policy “as to frustrate effective judicial review,” we consider the Cron declaration in reviewing the Government’s basis for a categorical ban. See Camp, 411 U.S. at 142–43. Cron’s declaration purports to provide additional justifications and detail for CENTCOM’s policy. First, “[t]reatment medications are highly specialized, and require constant, diligent compliance to be effective,” because without treatment, a “resurgent infection may go unnoticed[.]” J.A. 482. Second, “austere conditions may place Service members with mandatory medication or treatment regimens at risk because these regimens may be disrupted.” J.A. 480–81. Finally, the “remaining force” could be “expos[ed] to [HIV-infected] blood from treating, or being treated for, battlefield trauma, or for those individuals requiring battlefield blood transfusions.” J.A. 481.
These proffered justifications fail to account for current medical literature and expert opinion about current HIV treatment and transmission risks. By failing to address the current state of HIV treatment and transmission, CENTCOM did not “consider an important aspect of the problem” and now explains its decision in a manner “that runs
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counter to the evidence before” it. Sierra Club, 899 F.3d at 293 (quoting State Farm, 463 U.S. at 43).
To begin, the Government’s assertion that HIV requires “highly specialized” treatment is contrary to evidence in the record. Around three-quarters of HIV-positive individuals take a single daily pill, which does not require special storage or handling. These medications generally tolerate extreme conditions well. And treatment produces minimal side effects and imposes no dietary restrictions. While HIV-positive individuals need viral load testing, the testing is routine and can readily be conducted by a general practitioner, either on-site or by shipping a sample to a lab. The record is inconsistent about the frequency of such testing. Plaintiffs offer declarations of two physicians with extensive experience in the field of HIV who state that a patient with an undetectable viral load for at least two years typically receives viral load testing twice a year. However, Air Force Instruction 44-178 requires “an initial evaluation . . . followed by a visit at 6 months, then yearly thereafter.” J.A. 350. Whether testing is needed once or twice every year, the treatment is not “highly specialized.”
This simple treatment also undermines the Government’s assertion that “austere conditions” would “disrupt[ ] it.” J.A. 480–81. Because the medications have no special storage requirements, servicemembers with HIV can be prescribed several months’ worth of their medication at a time, just as the military does for servicemembers deploying with other chronic but managed conditions. And for patients with undetectable viral levels— like Roe, Voe, and the OutServe servicemembers—the required treatment is no different in time or effort than other treatments prescribed to servicemembers deployed overseas,
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including to CENTCOM’s area of responsibility. Even if treatment were disrupted, HIVpositive servicemembers would “not immediately suffer negative health outcomes.” J.A. 795. “It often takes weeks for an individual’s viral load to reach a level that would not be considered ‘suppressed.’” Id. Even then, the virus enters a period of clinical latency that can last years, often with no symptoms or negative health outcomes. And, when an individual resumes treatment, even supposing the virus developed a resistance to the previous treatment regimen, a switch to a different regimen will return that patient to viral suppression.
Finally, through the Cron declaration, the Government also explains its deployment policy by pointing to the risk of HIV transmission through battlefield blood exposure and blood transfusions. Again, the Government has failed to reconcile these concerns with the record evidence on HIV transmission. The record does not support the Government’s arguments about the risk of transmission through transfusions. Servicemembers who test positive for HIV are ordered not to donate blood. Therefore, any risk of HIV transmission through transfusion is by servicemembers who are unaware of their HIV-positive status. That is, of course, not the case here. Roe, Voe, and the four OutServe members are all aware of their HIV-positive status.4
4 Even in the case of a servicemember unaware of his or her status, the risk of HIV transmission through blood transfusion is low because of rigorous transfusion procedures. Specifically, to reduce transmission risks, the FDA screens the military blood supply for various diseases, including HIV. See Amicus Br. of Former Military Officials at 16 (citing T. Ballard et al., Transfusion-Transmissible Infections Among U.S. Military Recipients of Emergently Transfused Blood Products, June 2006-December 2012, Medical Surveillance Monthly Reports, Vol. 21, No. 11, at 2 (Nov. 2014)). Where FDA-screened blood is
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Likewise, the risk of battlefield transmission is unsupported by the record. For
example, the CDC has determined that the chance of transmitting untreated HIV by
needlestick is 0.23% per needlestick exposure, and the chance of transmitting untreated
HIV by throwing bodily fluids is “negligible.” J.A. 599. In cases of undetectable viral
loads—like those of Roe, Voe, and the OutServe servicemembers—medical experts
consider transmission risks to be even lower.
Moreover, the military’s own research undermines the Government’s purported
concern. Specifically, a military study of 1.13 million Army servicemembers who deployed
to Afghanistan or Iraq between 2001 and 2007 found 131 servicemembers seroconverted—
that is, tested positive for HIV after previously testing negative. This rate was lower than
the rate among servicemembers who did not deploy to those areas. Moreover, the study
identified only one case of a servicemember who was infected with HIV during
deployment. In the other studied cases of seroconversion, the servicemembers were
infected prior to deployment, after deployment, or during leave for rest and relaxation. And
the military did not identify any servicemembers who contracted HIV through non-sexual
means. So, among the 1.13 million servicemembers deployed to Afghanistan or Iraq during
unavailable, the military turns first to a “walking blood bank,” a volunteer servicemember who is pre-screened to donate blood. Id. at 17. If no such servicemember is available, the military turns to volunteers who have donated recently. Finally, the military turns to other volunteers. From 2006 to 2012, only 2% of all units of blood transfused to servicemembers were non-screened units. See id. at 16 n.18. Again, HIV-positive members have been ordered not to donate blood and so do not contribute to the supply of non-screened blood. The Government has not identified any case of HIV transmission through blood transfusion under its screening procedures. See Ballard et al., supra, at 4 (noting that the Defense Medical Surveillance System identified “no cases of HIV” transmission from 2006 to 2012).
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the six-year study period, the military found no instances of transmission through trauma care, blood splash, transfusion, or other battlefield circumstances.
The Government’s justifications for a categorical ban, offered through the Cron declaration, do not account for the Plaintiffs’ persuasive and credible evidence—evidence available to the Government when it enacted this policy—on HIV treatment and transmission risk. And the record and the military’s own research support the conclusion of the military-official amici—including former Secretaries of the Army, Air Force, and Navy, a former Assistant Secretary of Defense, and a former Director of Health and Safety for the Coast Guard—that “there is no legitimate reason to deny HIV positive service members the opportunity to deploy.” Amicus Br. of Former Military Officials at 7. 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. 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 judgments.
In summary, the Government has failed to meet the APA’s requirement to explain a categorical ban on deploying HIV-positive service members. The Government did not articulate a satisfactory explanation at the time the deployment policy was adopted. And even considering the explanations offered in litigation, the policy fails to withstand review under the APA. Modification 13 “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.” Sierra Club, 899 F.3d at 293 (quoting
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Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017)). Accordingly, Plaintiffs are likely to succeed in demonstrating the Government acted arbitrarily and capriciously—either by cutting short the individualized determination required by regulation or by imposing an unjustified deployment policy at odds with modern science.
V. In addition to a likelihood of success on the merits, for a preliminary injunction to issue, Plaintiffs must show they are “likely to suffer irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20. “Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of [an injunction] are not enough.” Di Biase, 872 F.3d at 230 (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)). To argue that Plaintiffs have not sufficiently demonstrated irreparable harm, the Government principally relies on Guerra v. Scruggs. See 942 F.2d at 273–75. In Guerra, a servicemember sought to enjoin his discharge resulting from his admitted “cocaine usage and absence from duty due to alcohol intoxication.” Id. at 271. We concluded a “higher requirement of irreparable injury should be applied in the military context given the federal courts’ traditional reluctance to interfere with military matters,” and Guerra could not meet that heightened requirement. Id. at 274. Because Guerra could appeal to the Army Board for Correction of Military Records if his general discharge was improper, “the only harm [he] could suffer [was] the damage to his reputation during the interim between his discharge and the decision of the board reviewing his discharge.” Id. at 274–75. Accordingly, we explained “the prospect of a general discharge under honorable conditions
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is not an injury of sufficient magnitude to warrant an injunction.” Id. at 274. (quoting Chilcott v. Orr, 747 F.2d 29, 34 (1st Cir. 1984)).
Guerra’s heightened requirement of irreparable harm does not prevent a preliminary injunction here. At the time we decided Guerra, courts were required to “balance the irreparable harm to the respective parties, requiring only that the harm to the plaintiff outweigh the harm to the defendant.” Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 347 (4th Cir. 2009) (emphasis omitted), vacated on other grounds, 559 U.S. 1089, aff’d, 607 F.3d 355 (4th Cir. 2010). And “upon a strong showing on the probability of success, the moving party [could obtain a preliminary injunction by] demonstrat[ing] only a possibility of irreparable injury.” Id.; see also Hartikka v. United States, 754 F.2d 1516, 1518 (9th Cir. 1985). But the Supreme Court has since rejected this approach, requiring plaintiffs to “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. Importantly, Winter, a case of general applicability, involved a challenge to “mission-critical” military action that constituted a “top war-fighting priority”—integrated training of a strike group of surface ships, submarines, and aircraft— suggesting no special standard applies in the military context. Id. at 12, 14.
Furthermore, although a general discharge was insufficient to demonstrate irreparable injury in Guerra, the Supreme Court has recognized that “circumstances surrounding an employee’s discharge, together with the resultant effect on the employee, may so far depart from the normal situation that irreparable injury might be found.” Sampson, 415 U.S. at 92 n.68; see also Guerra, 942 F.2d at 274–75. Here, the district court found that two circumstances surrounding these discharges would create irreparable harm.
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First, Plaintiffs “face a particularly heinous brand of discharge” based on “outmoded policies related to” HIV that “bears no relationship to their ‘ability to perform [their] job[s].’” Roe, 359 F. Supp. 3d at 419–20 (quoting Elzie v. Aspin, 841 F. Supp. 439, 443 (D.D.C. 1993) (alterations in original)). Second, this injury is “further compounded by the stigma 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.” Id. at 420. Notably, unlike Guerra, Roe, Voe, and the OutServe servicemembers cannot address these harms through post-discharge intraservice procedures. See Guerra, 942 F.2d at 274.
The Government challenges the factual basis for both findings supporting the district court’s conclusion about irreparable harm. First, it argues that there was “no basis to infer animus” from the Air Force’s discharge of HIV-positive service members. Gov’t Br. at 38. Second, it argues there is “no foundation for the district court’s speculation that Plaintiffs will be forced to ‘reveal their condition.’” Id. We conclude the district court did not clearly err in either respect.
First, the district court did not find—nor suggest—that animus led to Plaintiffs’ discharge. Instead, it concluded that Plaintiffs were discharged based upon “outmoded policies” unrelated to their “ability to perform their jobs.” Roe, 359 F. Supp. 3d at 419–20. As explained above, the weight of scientific evidence supports this finding. This is different from the situation in Guerra, where the commanding officer of Guerra’s company sought the discharge because of Guerra’s admitted drug use. See Guerra, 942 F.2d at 275, 280 (declining to issue an injunction requiring the Army to “retain[ ] admitted drug users”
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because such an injunction would be “a disruptive force as to [military] affairs” (quoting Orloff v. Willoughby, 345 U.S. 83, 95 (1953))).
Second, the district court did not clearly err by finding it “commonsense” that Plaintiffs’ discharge would require them to “reveal their condition.” Roe, 359 F. Supp. 3d at 420. Plaintiffs had intended to continue to serve in the Air Force but now face discharge earlier than expected. And the district court rightly acknowledged that Plaintiffs would have to address questions from others as to why they were not continuing in their intended careers. Accordingly, the court did not clearly err in its findings that the discharges would cause irreparable harm to Plaintiffs.
VI. The district court also did not err in concluding the balance of the equities and the public interest both favor an injunction. See Winter, 555 U.S. at 20; see also Nken v. Holder, 556 U.S. 418, 435 (2009) (observing that assessing harm to the opposing party and weighing the public interest “merge” when the government is the party opposing a stay). The Government contends the district court, in balancing the equities, inadequately accounted for the harm to servicemembers who must “compensate for their unavailable team members by deploying more frequently.” Gov’t Br. at 37. But the district court recognized this harm and “appropriately tailored” its relief to minimize it. Roe, 359 F. Supp. 3d at 420. Specifically, the court examined the evidence and concluded that HIV-positive servicemembers constitute a “miniscule percentage of active-duty servicemembers—0.027% by one calculation.” Id. at 421. And any harm resulting from
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the retention of this small number of servicemembers is outweighed by the “potentially immense” harm to HIV-positive servicemembers. Id. at 420.
Next, the Government contends the district court created “institutional harm” through “judicial second-guessing” of “affairs peculiarly within the jurisdiction of the military authorities.” Gov’t Br. at 36–37. To be sure, “there will always be some interference when [courts] review” military decisions. Guerra, 942 F.2d at 276 (quoting Mindes, 453 F.2d at 201). But military decisions are not categorically immune from judicial review, and here, Congress has provided for review through the APA. See 5 U.S.C. § 701(b)(1); see also Gilligan, 413 U.S. at 10 (describing “professional military judgments” as “subject always to civilian control of the Legislative and Executive Branches”). Moreover, the district court gave deference to the military regarding its personnel decisions. Still, it concluded that the relief requested, “that defendants adhere to their stated policies and make nonarbitrary, personalized determinations about each individual’s fitness for service[,] . . . . d[id] not do violence to the notion of military independence.” Roe, 359 F. Supp. 3d at 421. The district court did not clearly err in this determination, and the Government has not shown what institutional harm arises from relief that merely requires it to comply with its own policies.
As to the public interest, the district court observed the public “undoubtedly has an interest in seeing its governmental institutions follow the law and treat their employees in reasonable, nonarbitrary ways.” Id. But the district court also noted another important public interest: “the public benefits from the security provided by military departments populated with individuals dedicated to the notion of service.” Id. Roe, Voe, and the four
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members of OutServe have served their country, collectively earning accolades, promotions, the trust of their commanding officers, and the respect of their fellow servicemembers. And the public interest in their continued service is underscored by the statements of the former-military-official amici: “It is more damaging to military readiness to deny those service members the opportunity to deploy where they are needed.” Amicus Br. of Former Military Officials at 7. As the district court correctly noted, “It is in the public interest to prevent their discharge for apparently arbitrary and indefensible reasons, at least until the Court can definitively decide the merits of plaintiffs’ claims.” Roe, 359 F. Supp. 3d at 421.
Accordingly, the district court correctly determined the balance of equities and the public interest favored a preliminary injunction to maintain the status quo during litigation.
VII. We review the scope of a district court’s injunction for abuse of discretion. See Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 392 (4th Cir. 2001), abrogated on other grounds by FEC v. Wis. Right to Life, 551 U.S. 449 (2007). “Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (citing Winter, 555 U.S. at 20, 24). And “[i]t is well established . . . that a federal district court has wide discretion to fashion appropriate injunctive relief in a particular case.” Richmond Tenants Org., Inc. v. Kemp, 956 F.2d 1300, 1308 (4th Cir. 1992). Still, a court should “mold its decree to meet the exigencies of the particular case.” Int’l Refugee Assistance Project, 137 S. Ct. at 2087
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(quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2947 (3d ed. 2013)). And a court must ensure a preliminary injunction is “no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr, Inc., 512 U.S. 753, 765 (1994) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)).
Importantly, in the context of a preliminary injunction, “[t]he purpose of such interim equitable relief is not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward.” Int’l Refugee Assistance Project, 137 S. Ct. at 2087 (internal citation omitted). Therefore, a court should “[take] account of the equities in fashioning interim relief, focusing specifically on the concrete burdens that would fall” on the party seeking the injunction. Id. Additionally, “[i]n exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)).
Plaintiffs sought to enjoin the Air Force from discharging Roe, Voe, and other similarly situated servicemembers, and from “restricting [them] from being promoted, changing duty station, or re-training on the same terms as other service members living with HIV who are not being separated.” Dkt. No. 34-1. The district court granted the motion in part and denied it in part, enjoining the Air Force from discharging active-duty servicemembers because they are classified as ineligible to deploy to CENTCOM’s area of responsibility due to their HIV status. And after review of the district court’s order and the
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record before us, we conclude the district court did not abuse its discretion in crafting this preliminary injunction.
A. The Government argues “the district court had no authority to enter a nationwide injunction barring the Air Force from discharging service members based on” Modification 13. Gov’t Br. at 40–41. Specifically, the Government contends the injunction “exceeds a court’s authority under both Article III and fundamental principles of equity.” Gov’t Reply at 20. The Government does not contest that Roe, Voe, and OutServe (representing four members of the Air Force facing discharge) have demonstrated standing to challenge their discharges. Certainly, this is not a case where a plaintiff has sought to vindicate a public right without showing some specific injury to him- or herself. Cf. Trump v. Hawaii, 138 S. Ct. 2392, 2428 (2018) (Thomas, J., concurring). On the legal question of whether an injunction extending relief to those who are similarly situated to the litigants is categorically beyond the equitable power of district courts, binding precedent requires this Court to reject the Government’s argument. The Supreme Court recently affirmed the equitable power of district courts, in appropriate cases, to issue nationwide injunctions extending relief to those who are similarly situated to the litigants. See Int’l Refugee Assistance Project, 137 S. Ct. at 2087. There, the Government asked the Court to stay preliminary injunctions extending to “respondents and those similarly situated.” Id. The Court declined to do so and left that portion of the injunction in place. Id. And it is the Supreme Court’s “prerogative alone to overrule one of
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its precedents.” United States v. Hatter, 532 U.S. 557, 567 (2001) (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)).
B. Here, the district court took care to “mold its decree to meet the exigencies of the particular case.” See Int’l Refugee Assistance Project, 137 S. Ct. at 2087. The district court carefully considered the equities, “focusing specifically on the concrete burdens that would fall” on the parties and on the public consequences of an injunction. Id.; see also Winter, 555 U.S. at 24. Because the district court tailored the injunction to the issues presented in the case, imposed a narrow injunction focused on the Air Force’s challenged actions, and articulated its reasons for imposing the injunction, the district court did not abuse its discretion in fashioning relief. First, Plaintiffs challenged the Air Force’s failure to provide an individualized determination of their fitness to continue to serve. As explained above, the Government used an unexplained categorical policy, which effectively operated as a ban, in determining Roe, Voe, and the four OutServe members could not deploy to CENTCOM’s area of responsibility and therefore should be discharged. The categorical polices relied upon by the Government call for categorical relief. And just as the Government identified no facts particular to any one servicemember to justify discharge, here, no facts require different relief for servicemembers subjected to the same categorical determination. This Court has expressed concern that preliminary injunctions risk “thwart[ing] the development of important questions of law.” See Va. Soc’y for Human Life, 263 F.3d at 393 (quoting United States v. Mendoza, 464 U.S. 154, 160 (1984)). But here, the
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Government, by failing to meet its obligation to provide individualized determinations, has already limited this Court’s ability to consider this question in a variety of circumstances. And as the district court noted:
[P]laintiffs’ entitlement to injunctive relief in this civil action is not so much dependent on characteristics peculiar to Roe and Voe; rather, it flows from defendants’ reliance on an arbitrary, across-the-board determination that HIV-positive servicemembers must be deemed ineligible to deploy to CENTCOM, regardless of each servicemember’s actual physical condition. Roe, 359 F. Supp. 3d at 422. Second, and relatedly, the preliminary injunction is in fact quite narrow. It does not enjoin enforcement of CENTCOM’s policy, but only discharges relying on a categorical reading of that policy. Nor does the preliminary injunction prevent the Air Force from discharging servicemembers for reasons unrelated to their HIV status and the Air Force’s application of Modification 13. And, as the district court has clarified, the injunction does not prevent HIV-positive servicemembers who wish to separate from the Air Force from doing so. As a result, the district court avoided imposing undesired consequences on similarly-situated Air Force servicemembers. Additionally, the preliminary injunction entered by the district court is narrower than what Plaintiffs sought. In particular, the district court explicitly noted that the Government was not enjoined “from restricting Roe and Voe and others similarly situated from being promoted, changing duty statutes, or re-training on the same terms as other service members living with HIV who are not being separated,” as Plaintiffs had requested. Roe, 359 F. Supp. 3d at 422 n.46. And the district court denied OutServe’s motion to amend the preliminary injunction to remove the word “active-duty” so that, according to
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OutServe, the preliminary injunction would cover members of the Air National Guard. See Dkt. Nos. 74, 78.
Moreover, the preliminary injunction applies to a limited number of servicemembers. As the district court noted in addressing the balance of equities, “HIVpositive individuals make up such a miniscule percentage of active-duty servicemembers— 0.027%, by one calculation.” Roe, 359 F. Supp. 3d at 421. Thus, there is a limited number of servicemembers, identifiable by the Air Force, to whom the injunction would apply. Cf. Int’l Refugee Assistance Project, 137 S. Ct. at 2088 (leaving in place a preliminary injunction as to an unknown number of “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States”).
And as the district court properly noted, the unique characteristics and history of HIV may pose a challenge for other similarly situated servicemembers to bring suits on their own behalf:
Because of the longstanding stigma and discrimination facing those living with HIV, it may be difficult to identify potential plaintiffs in a case of this nature. Granting relief to all similarly situated servicemembers is thus the only way to ensure uniform, fair, rational treatment of individuals who belong to a vulnerable, and often invisible, class. Roe, 359 F. Supp. 3d at 422. The district court thus did not abuse its discretion in defining the scope of the preliminary injunction.
VIII. Roe, Voe, and the four identified members of OutServe wish to continue to serve their country. Their doctors and their commanding officers support their retention. But the
45

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Filed: 01/14/2020 Pg: 46 of 46

Air Force, without individually considering each servicemember’s condition, fitness, and deployability, assumed the servicemembers could not deploy to CENTCOM’s area of responsibility because they are HIV-positive. The Government’s explanations for why it has imposed an effective ban on deploying HIV-positive servicemembers to CENTCOM’s area of responsibility are at odds with modern science. These servicemembers, like other HIV-positive individuals with undetectable viral loads, have no symptoms of HIV. They take daily medication—usually one pill, for some people two—and need a regular, but routine blood test. They cannot transmit the virus through normal daily activities, and their risk of transmitting the virus through battlefield exposure, if the virus can be transmitted at all, is extremely low. Although transmission through blood transfusion is possible, these servicemembers have been ordered not to donate blood. But 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 individualized determination of their fitness for military service.
Plaintiffs have demonstrated a likelihood of success of the merits of at least one claim and have made a clear showing of irreparable harm in the absence of a preliminary injunction. The equities and public interest weigh in the Plaintiffs’ favor, and the district court did not abuse its discretion in crafting the preliminary injunction. Accordingly, we affirm the order of the district court.
AFFIRMED

46

 
 Harrison v. Spencer, --- F.Supp.3d ---- (2020) 2020 WL 1493557

2020 WL 1493557 Only the Westlaw citation is currently available.
United States District Court, E.D. Virginia, Alexandria Division.
Nicholas HARRISON, et al., Plaintiffs, v.
Richard V. SPENCER, Acting Secretary of Defense, et al., Defendants. Richard Roe, et al., Plaintiffs, v.
Richard V. Spencer, Acting Secretary of Defense, et al., Defendants.
1:18-cv-641 (LMB/IDD) |
1:18-cv-1565 (LMB/IDD) |
Signed 03/27/2020
Synopsis Background: Military servicemember, prospective servicemember, and non-profit organization brought actions against Department of Defense and others challenging military’s accession and retention policies regarding servicemembers diagnosed with human immunodeficiency virus (HIV). Defendants moved to dismiss non-profit organization for lack of standing.
The District Court, Leonie M. Brinkema, J., held that non-profit organization had direct Article III standing.
Motions denied.
Procedural Posture(s): Motion to Dismiss for Lack of Standing.
Attorneys and Law Firms
Andrew Ryan Sommer, Greenberg Traurig LLP, McLean, VA, John Webster Hunter Harding, Laura Joy Cooley, Winston & Strawn LLP, Washington, DC, for Plaintiffs.
R. Trent McCotter, United States Attorney’s Office, Alexandria, VA, for Defendants.

MEMORANDUM OPINION
Leonie M. Brinkema, United States District Judge
*1 Harrison v. Spencer, Case No. 1:18-cv-641, and Roe v. Spencer, Case No. 1:18-cv-1565, are two related civil actions challenging the military’s accession and retention policies regarding servicemembers living with the human immunodeficiency virus (“HIV”). Although each action involves different named parties and a different branch of the United States Armed Forces, both actions include the same institutional plaintiff, The Modern Military Association of America (“MMAA”), a non-profit organization primarily dedicated to promoting the interests of current, former, and future servicemembers who are LGBTQ+ and/or HIV positive.1 The defendants in both actions have filed motions to dismiss MMAA under Federal Rule of Civil Procedure 12(b)(1), arguing that its predecessor, Outserve-SLDN, Inc. (“Outserve”), lacked standing to sue.2 Given the nearly identical factual and legal issues raised in each motion, the parties agreed to joint briefing. For the reasons that follow, the defendants’ motions to dismiss will be denied.3
I. BACKGROUND
The factual and procedural histories of these actions have been thoroughly recounted in previous opinions, including most recently in a decision issued by the United States Court of Appeals for the Fourth Circuit. See Roe v. Dep’t of Defense, 947 F.3d 207 (4th Cir. 2020); see also Roe v. Shanahan, 359 F. Supp. 3d 382 (E.D. Va. 2019); Harrison v. Shanahan, 2019 WL 2216474 (E.D. Va. May 22, 2019). Therefore, they need not be reproduced in full here. This Memorandum Opinion will focus on the histories of these actions only as they relate to Outserve and the defendants’ motions to dismiss. Because the procedural history provides context for understanding the factual history, the procedural history will be addressed first.
*2 On May 13, 2018 and December 19, 2018, respectively, the complaints in Harrison and Roe were filed. [Harrison, Dkt. 1; Roe, Dkt. 1]. On May 3, 2019, the defendants filed their motions to dismiss, arguing that Outserve lacked standing to sue. [Harrison, Dkt. 154;

Harrison v. Spencer, --- F.Supp.3d ---- (2020)
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Roe, Dkt. 118]. Shortly thereafter, discovery concluded. [Harrison, Dkt. 106; Roe, Dkt. 32]. On May 31, 2019, after the parties had briefed the issue and oral argument had been held, the motions were held in abeyance to allow the parties one month to conduct additional discovery and file supplemental briefs with respect to whether Outserve had standing to sue. [Harrison, Dkt. 183; Roe, Dkt. 147]. On August 1, 2019, following supplemental briefing but before the motions could be resolved, all proceedings were stayed pending the outcome of the defendants’ interlocutory appeal of a preliminary injunction issued in Roe. [Harrison, Dkt. 241; Roe, Dkt. 244]. On March 3, 2020, after the preliminary injunction was affirmed, the formal mandate was returned. [Roe, Dkt. 253]. On March 5, 2020, during a telephone conference with attorneys for all parties present, the parties confirmed that the defendants’ motions to dismiss were ripe for resolution and that no further discovery or briefing was necessary. [Harrison, Dkt. 249; Roe, Dkt. 260].
Outserve first began HIV-related work in September 2015. Plaintiffs’ Supplemental Brief (“Pl. Br.”), Ex. A, at 2; Defendants’ Supplemental Brief (“Def. Br.”), Ex. Y, at 152–53. At that time, Outserve focused on advocacy initiatives related both to service members’ “inconsistent access to pre-exposure prophylaxis, ... a biomedical intervention that prevents the spread of HIV through daily medication taken by people who do not have HIV,” and to the military’s “accession[ ] standards, which operate[d] as a categorical bar to people living with HIV enlisting or commissioning into service.” Pl. Br., Ex. A, at 2–3; see also Def. Br., Ex. Y, at 153–54. The latter initiative arose after an HIV-positive individual who was interested in joining the military had approached Outserve seeking legal assistance. Def. Br., Ex. Y, at 153–54.
Over the next two years, the number of HIV-positive individuals seeking Outserve’s legal assistance regarding the military’s accession standards, as well as HIV-related issues more generally, steadily increased. In 2016, three HIV-positive individuals who were interested in joining or re-joining the military sought legal assistance regarding the accession standards; Outserve provided assistance to two of them. Pl. Br., Ex. A, at 3, 6; Def. Br., Ex. Y, at 189–92. In 2017, three more HIV-positive individuals who were interested in joining or re-joining the military sought assistance regarding the accession standards; Outserve again provided assistance to two of them, one of whom was plaintiff Nicholas Harrison.4 Pl. Br., Ex. A, at 6; Def. Br., Ex. Y, at 194. Additionally, three other HIV-positive individuals who were current or former servicemembers sought assistance regarding discipline and discrimination they faced due to their HIV-positive status. Pl. Br., Ex. A, at 6; Def. Br., Ex. Y, at 195. During

these years, Outserve did not advertise that it had begun providing HIV-related legal assistance. Def. Br., Ex. Y, at 193, 196.
Throughout 2018, these numbers dramatically increased. For example, fifteen individuals “had issues related to deployment and retention because of HIV,” particularly following the military’s announcement of its “Deploy or Get Out” policy in February 2018. Pl. Br., Ex. A, at 7. In addition, two individuals “had issues with duty restrictions they experienced because of their HIV status.” Id. Another two individuals “faced discipline—either court martial or involuntary separation—because of their HIV status.” Id. Lastly, five individuals “faced barriers to enlisting or commissioning because of their HIV status,” i.e., sought legal assistance regarding the accession standard. Id. Responding to these inquires required personnel to provide extensive legal and non-legal support, including “providing non-litigation support and information (such as scientific and medical information), counseling on strategies, giving legal advice and consultation, and even providing emotional and social support.” Id. at 8. For instance, Outserve’s attorney spent approximately 405 hours on HIV-related issues in 2018, including at least 100 hours on work regarding the military’s accession and retention policies.5 Id. at 11.
*3 Outserve had always been a small organization with limited human and financial resources. Pl. Br., Ex. A, at 4. For example, between 2016 and 2018, the Outserve attorney referenced above was Outserve’s only employee who was a member of a state bar. Outserve also employed approximately 16 individuals in its entire legal and policy department, most of whom were part-time, unpaid interns. Id. at 4–5. Accordingly, Outserve had difficulties accommodating the increase in HIV-related work without sacrificing its work on other projects, including those geared toward the LGBTQ+ military community. Pl. Br., Ex. A, at 8; Def. Br., Ex. Y, at 250. To deal with these difficulties, Outserve utilized a “triage system” whereby it “focus[ed] on tasks that ha[d] the highest impact—i.e., that [would] help the largest number of people or result in the most significant systemic changes—or that ... help[ed] the individuals in the direst need.” Pl. Br., Ex. A, at 8; see also Def. Br., Ex. Y, at 252. Individuals facing separation or discharge from military service because of their HIV-positive status were considered to be in particularly dire situations because their careers were “on the chopping block.” Def. Br., Ex. Y, at 253–56; Pl. Br., Ex. A, at 8.
Ultimately, various advocative, educational, and legal projects were delayed or curtailed throughout the end of 2017 and all of 2018. Pl. Br., Ex. A, at 9; Def. Br., Ex. Y, at 252. For example, with regard to Outserve’s advocacy

Harrison v. Spencer, --- F.Supp.3d ---- (2020)
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efforts, (1) advocacy on the reform of military sexual trauma policy was delayed for more than a year, from the first quarter of 2018 to the second quarter of 2019, and (2) advocacy on LGBTQ+ access to veterans’ benefits was delayed from the fourth quarter of 2018 to the second quarter of 2019. Pl. Br., Ex. A, at 10; Def. Br., Ex. Y, at 280–83. With regard to Outserve’s education efforts, (1) publication of Outserve’s online magazine for the LGBTQ+ military community was delayed for a year, from the third quarter of 2018 to the third quarter of 2019, (2) publication of several supplements to Outserve’s informational guide about LGBTQ+ and HIV-positive military service was delayed from various quarters in 2018 to the third quarter of 2019, or in some instances indefinitely, and (3) the launch of an online resource tool for regional directors and volunteers was delayed a year, from the second quarter of 2018 to the second quarter of 2019.6 Pl. Br., Ex. A, at 9–10; Def. Br., Ex. Y, at 251, 269, 272–73. Lastly, with regard to Outserve’s legal efforts, (1) a legal services program to file clemency petitions on behalf of LGBTQ+ veterans who were court martialed or discharged because of military policies regarding sexual activity was delayed indefinitely from “[f]all 2017,” (2) a legal services program to file test cases on behalf of LGBTQ+ veterans who were discharged under the military’s “Don’t Ask Don’t Tell” policy before they could qualify for certain veterans’ benefits was delayed indefinitely from “early 2018,” (3) a Judge Advocate Training program on issues relating to LGBTQ+ and HIV cultural competence was delayed indefinitely from “October 2018,” and (4) legal services to at least three clients were delayed for various periods of time between May 13, 2018 and December 31, 2018.7 Pl. Br., Ex. A, at 12–13; see also Def. Br., Ex. Y, at 186–89, 281–83.
II. DISCUSSION
*4 In their motions to dismiss, the defendants argue that Outserve lacked standing to sue. Specifically, the defendants argue that Outserve itself suffered no injury—or at least no injury caused by the military’s accession and retention policies—and that Outserve was not the type of institutional plaintiff that can sue based on injuries suffered by its members. In response, the plaintiffs argue both that Outserve suffered an injury caused by the military’s accession and retention policies—specifically, frustration of its mission combined with a drain on its resources—and that Outserve was the type of institutional plaintiff that can sue based on injuries suffered by its members.

A. Standard of Review “Federal Rule of Civil Procedure 12(b)(1) governs the dismissal of an action where the Court lacks subject matter jurisdiction.” Zargarpur v. Townsend, 18 F. Supp. 3d 734, 736 (E.D. Va. 2013). Under Rule 12(b)(1), “[d]efendants may attack subject matter jurisdiction in one of two ways.” Id. First, they may argue “that the complaint fails to allege facts upon which subject matter jurisdiction may be based.” Id. “In such instances, all facts alleged in the complaint are presumed true.” Id. Second, they may argue “that the jurisdictional facts alleged in the complaint are untrue.” Id. “In that situation, ‘the Court may look beyond the jurisdictional allegations of the complaint and review whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.’ ” Id. (quotation omitted). “In either circumstance, the burden of proving subject matter jurisdiction falls on the plaintiff.” Id.
Here, the defendants levy the second type of attack on the Court’s subject matter jurisdiction over Outserve, asserting that the jurisdictional facts propounded by Outserve are untrue. “Therefore, this Court may weigh the evidence and resolve factual disputes regarding jurisdiction by considering evidence outside the complaint.” Pornomo v. United States, 62 F. Supp. 3d 455, 462 (E.D. Va. 2014). “Even though a Rule 12(b)(1) motion to dismiss is not converted into a motion for summary judgment” in these circumstances, “district courts ‘should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists.’ ” Id. (quotation omitted). “Only when ‘the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law’ should the Court grant the motion.” Id. (quotation omitted).
B. Analysis “As the Supreme Court has consistently emphasized, Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’ ” Hutton v. Nat’l Bd. of Examiners in Optometry, Inc., 892 F.3d 613, 619 n.5 (4th Cir. 2018) (quotation omitted). “The requirement that a [p]laintiff possess ‘standing to sue’ emanates from that constitutional provision.” Id. “[I]n order to possess standing to sue under Article III of the

Harrison v. Spencer, --- F.Supp.3d ---- (2020)
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Constitution,” a plaintiff must establish three elements: “(1) [he or she] suffered an injury-in-fact that was concrete and particularized and either actual or imminent; (2) there was a causal connection between the injury and the defendant’s conduct ...; and (3) the injury was likely to be redressable by a favorable judicial decision.” Id. at 618–19. This law of standing “serves to prevent the judicial process from being used to usurp the powers of the political branches, and confines the federal courts to a properly judicial role.” Dreher v. Experian Information Sols., Inc., 856 F.3d 337, 343 (4th Cir. 2017) (quotation omitted). “Indeed, ‘no principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Id. (quotation omitted).
*5 An institutional plaintiff such as Outserve can have standing “based upon” either of “two distinct theories.” Md. Highways Contractors Ass’n, Inc. v. Maryland, 933 F.2d 1246 (4th Cir. 1991); see also Southern Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 182 (4th Cir. 2013). First, it can have standing “in its own right” based on injuries that it has suffered. Southern Walk, 713 F.3d at 182. This is frequently referred to as “direct” or “individual” standing. Second, it can have standing “as a representative of its members” based on injuries that they have suffered. Id. This is often referred to as “representational” or “associational” standing. The plaintiffs assert that Outserve had standing to sue under both theories; the defendants assert that Outserve did not have standing to sue under either theory. For the reasons that follow, the plaintiffs have sufficiently established that Outserve had direct standing, and therefore the Court need not address whether they have sufficiently established that Outserve also had representational standing.8
In evaluating whether an institutional plaintiff has direct standing, “a court conducts the same inquiry as in the case of an individual.” Md. Highways, 933 F.2d at 1250. In other words, evaluating whether an institutional plaintiff has direct standing involves a straightforward application of the three familiar elements of standing—injury-in-fact, traceability, and redressability. Southern Walk, 713 F.3d at 182. This evaluation “of course, depends not upon the merits” of the claims asserted, “but on ‘whether the plaintiff is the proper party to bring the suit.’ ” White Tail Park, Inc. v. Stroube, 413 F.3d 451, 460 (4th Cir. 2005) (quotation omitted). “Even though a plaintiff’s standing cannot be examined without reference to the ‘nature and source of the claim[s] asserted,’ [the] ultimate aim is to determine whether [the] plaintiff has a sufficiently ‘personal stake’ in the lawsuit to justify the invocation of

federal court jurisdiction.” Id. at 461 (quotation omitted).
Here, the parties’ primary arguments are straightforward. The plaintiffs argue that throughout the end of 2017 and all of 2018, Outserve “had a steady increase in HIV-related inquiries, the vast majority of which pertain[ed] to accessions, retention, and deployment.” Pl. Br. at 5. “These inquiries [in turn] required personnel” to provide both legal and non-legal support, including “undertak[ing] lengthy phone calls, do[ing] research and investigations, assist[ing] in preparing documents, and even provid[ing] emotional support.” Id. As a result, “delays and reprioritizations of other work ... occurred.” Id. In short, the plaintiffs argue that Outserve had direct standing because the military’s accession and retention policies “required Outserve to divert resources from other programs and services,” all of which lay at the core of its mission. Id. at 2. In support of this argument, the plaintiffs rely on the Supreme Court’s decision in Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) and its progeny.
The defendants argue that all of “Outserve’s purported direct injuries resulted from their own resource allocation decisions,” including “internal decisions to prioritize certain initiatives over others, all of which serve the organizational mission.” Def. Br. at 22. “Consequently, these alleged harms are merely self-inflicted budgetary choices and not a cognizable legal injury.” Id. In support of this argument, the defendants rely on the Fourth Circuit’s decision in Lane v. Holder, 703 F.3d 668 (4th Cir. 2012). The plaintiffs have the better argument.
*6 At the outset, the defendants summarily argue that the plaintiffs should not be permitted to assert that Outserve had direct standing to sue because the complaints in both actions only allege representational standing. This argument is unpersuasive. As previously discussed, in evaluating the defendants’ motions to dismiss, “the Court may look beyond the jurisdictional allegations of the complaint and review whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Zargarpur, 18 F. Supp. 3d at 736 (quotation omitted). Moreover, the doctrines of forfeiture and waiver are discretionary and grounded in concerns about fair notice. See Sherrod v. Harkleroad, 791 F. App’x 377, 381 (4th Cir. 2019); see also United States v. Ricco, 52 F.3d 58, 62 (4th Cir. 1995). Here, the defendants themselves served an interrogatory on Outserve asking how it had suffered a direct injury caused by the military’s accession and retention policies, and Outserve timely responded that it had been required to divert resources away from numerous projects, all of which lay at the core of its mission. Additionally, the parties were granted one month to conduct additional

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discovery and file supplemental briefs with respect to whether Outserve had standing to sue, including direct standing. [Roe, Dkt. 147; Harrison, Dkt. 183]. At this point, the defendants cannot persuasively argue that they lacked fair notice that the plaintiffs planned to assert that Outserve had direct standing to sue in these actions, or an adequate opportunity to respond to that assertion.9
Turning to the parties’ primary arguments, in Havens Realty, the Supreme Court held that a non-profit organization dedicated to achieving equal opportunity in housing had sufficiently alleged direct standing to sue an apartment complex owner on the basis of allegedly unlawful racial steering practices. 455 U.S. at 379, 102 S.Ct. 1114. The organization had alleged that it “ha[d] been frustrated by [the] racial steering practices in its efforts to assist equal access to housing through counseling and other referral services,” and that it had “devoted significant resources to identify and counteract the ... racially discriminatory steering practices.” Id. (quotation omitted). The Supreme Court reasoned that “[i]f, as broadly alleged, [the] steering practices ha[d] perceptibly impaired [the organization’s] ability to provide counseling and referral services for low- and moderate-income home-seekers, there [could] be no question that [it] had suffered an injury in fact” because “[s]uch concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources—constitute[d] far more than simply a setback to the organization’s abstract social interest.” Id. Since Havens Realty, courts have frequently reaffirmed that an institutional plaintiff has direct standing if the challenged policies or practices both frustrated its purpose and caused a drain on its resources. See, e.g., Southern Walk, 713 F.3d at 183.10
Subsequently, in Lane, the Fourth Circuit held that a non-profit organization dedicated to promoting the exercise of the right to keep and bear arms did not sufficiently allege standing to sue the Attorney General of the United States on the basis of an allegedly unconstitutional statute restricting interstate transfers of handguns. 703 F.3d at 675. The organization had alleged that “[its] resources [were] taxed by inquiries into the operation and consequences of interstate handgun transfer provisions.” Id. (quotation omitted). The court reasoned that “[t]his ‘mere expense’ to [the organization] [did] not constitute an injury in fact” because “[a]lthough a diversion of resources might harm the organization by reducing the funds available for other purposes, ‘it results not from any actions taken by the defendant, but rather from the organization’s own budgetary choices.’ ” Id. (quotation omitted). The court also stated that “[t]o determine that an organization that decides to spend its money on educating members, responding to member

inquiries, or undertaking litigation in response to legislation suffers a cognizable injury would be to imply standing for organizations with merely ‘abstract concerns with a subject that could be affected by an adjudication,’ ” which “would not comport with the case or controversy requirement of Article III of the Constitution.” Id. (quotation omitted).
*7 Here, it is clear that the plaintiffs in both actions have satisfied the standard set forth in Havens Realty. As previously recounted, between 2015 and 2018, Outserve observed a significant increase in requests for help from individuals seeking legal assistance regarding the military’s accession and retention policies, with the most notable increase following the military’s announcement of its “Deploy or Get Out” policy in February 2018. Outserve faced immediate difficulties accommodating this increase in requests for help, especially given its limited staff and financial resources. Ultimately, Outserve had to delay at least nine specific advocative, educational, and legal projects, all of which lay at the core of its mission, to serve the needs of those who had requested help. On this record, the military’s accession and retention policies certainly “perceptibly impaired” Outserve’s ability to carry out its mission through frustration of that mission combined with a consequent drain on its resources. Havens Realty, 455 U.S. at 379, 102 S.Ct. 1114. “Such concrete and demonstrable injury to the organization’s activities ... constitutes far more than simply a setback to the organization’s abstract social interest.”11 Id.; see also Southern Walk, 713 F.3d at 175; Heap, 112 F. Supp. 3d at 417; Moseke, 202 F. Supp. 2d at 499–500.
It is also clear that Lane does not compel a contrary conclusion. First, Lane explicitly reaffirmed the standard set out in Havens Realty, stating that “[a]n organization may suffer an injury in fact when a defendant’s actions impede its efforts to carry out its mission,” such as “in Havens.” when the defendant’s practices “perceptibly impaired” a “key component” of the organization’s mission. 703 F.3d at 674–75 (quotation omitted). For the reasons already discussed, the plaintiffs have met that standard here. Moreover, to the extent that any subsequent statements in Lane conflict with the standard set out in Havens Realty, the latter would obviously take precedence, particularly given that the three cases cited by the court in Lane are all either circuit court decisions or Supreme Court decisions that pre-date Havens Realty. See id. at 675.
Second, to the extent that the defendants construe Lane as establishing a categorical ban on the diversion of resources theory of institutional standing, their argument is undercut by the Fourth Circuit and several district

Harrison v. Spencer, --- F.Supp.3d ---- (2020) 2020 WL 1493557

courts within the Fourth Circuit having reaffirmed since

“directly and adversely affected” are sufficient to

Lane that an institutional plaintiff has direct standing to

establish direct standing, and in doing so have explicitly

sue if the challenged policies or practices both frustrated

analogized Havens Realty and distinguished Lane. See,

its purpose and caused a drain on its resources. See, e.g.,

e.g., Nat’l Federation of the Blind v. U.S. Dep’t of Educ.,

Southern Walk, 713 F.3d at 183; League of United Latin

407 F. Supp. 3d 524, 531–33 (D. Md. 2019) (explaining

Am. Citizens, 2018 WL 3848404, at *2; Heap, 112 F.

that unlike the Second Amendment organization in Lane,

Supp. 3d at 417; Lee v. Va. Bd. of Elections, 155 F. Supp.

and “[l]ike the fair housing organization in Havens

3d at 577–78. Moreover, institutional standing has

Realty, [the plaintiffs] ha[d] alleged a need to expend

frequently been recognized as a fact-intensive inquiry that

more resources than usual to assist their members in a

is rarely susceptible to such categorical rules. See Wright,

specific fashion that [was] core to their mission”).12

et al., § 3531.9.5.

Accordingly, as in Havens Realty, there is “no question”

that Outserve had direct standing to sue.13 455 U.S. at 379,

*8 Lastly, in the same vein, there is a stark difference in

102 S.Ct. 1114.

the thoroughness and specificity of the plaintiffs’

evidence here compared to the institutional plaintiff’s

allegations in Lane. In Lane, the only reference to direct

standing in the institutional plaintiff’s brief was the

following statement: “And as ‘[the organization’s]

resources are taxed by inquiries into the operation and consequences of interstate handgun transfer prohibitions,

III. CONCLUSION

[the organization] also has organizational standing.” 703 F.3d at 675 (quotation omitted). Here, by contrast, and as previously discussed, the plaintiffs have demonstrated that Outserve experienced a significant increase in requests for help from individuals seeking legal assistance

For the reasons stated above, the defendants’ motions to dismiss [Harrison, Dkt. 154; Roe, Dkt. 118] will be denied by an Order to be issued with this Memorandum Opinion.

regarding the military’s accession and retention policies,

faced immediate difficulties accommodating this increase in requests, and ultimately delayed at least nine specific

All Citations

advocative, educational, and legal projects, all of which lay at the core of its mission, to serve the needs of those

--- F.Supp.3d ----, 2020 WL 1493557

who had requested help. Several courts have held that

such “discrete programmatic concerns” which were

Footnotes

1

The plaintiffs in Harrison are Nicholas Harrison and MMAA; the defendants are Richard Spencer in his official

capacity as the Acting Secretary of Defense, the United States Department of Defense, and Mark Esper in his official

capacity as the Secretary of the Army. The plaintiffs in Roe are Richard Roe, Victor Voe, and MMAA; the defendants

are Richard Spencer in his official capacity as the Acting Secretary of Defense, the United States Department of

Defense, and Matthew Donovan in his official capacity as the Acting Secretary of the Air Force.

2

Outserve was the institutional plaintiff involved in both actions when they were filed. [Harrison, Dkt. 1; Roe, Dkt. 1].

On August 6, 2019, Outserve and The American Military Partner Association completed a merger transaction which

resulted in the formation of MMAA. [Harrison, Dkt. 247; Roe, Dkt. 258]. MMAA was subsequently substituted for

Outserve in both actions. [Harrison, Dkt. 248; Roe, Dkt. 259]. Despite this substitution, “[w]hether a plaintiff has

standing is determined by considering the relevant facts as they existed at the time the action was commenced;”

therefore, the defendants’ motions to dismiss concern Outserve, not MMAA. Rep. Bank & Trust Co. v. Kucan, 245 F.

App’x 308, 310 (4th Cir. 2007); see also Lebron v. Rumsfeld, 670 F.3d 540, 561 (4th Cir. 2012). Like MMAA, Outserve

was also dedicated to promoting the interests of current, former, and future servicemembers who are LGBTQ+

and/or HIV positive.

3

Although the parties’ briefs and exhibits contained some personal identifying information which was redacted, good

cause does not exist to redact any portion of this Memorandum Opinion because it does not identify any individuals

Harrison v. Spencer, --- F.Supp.3d ---- (2020) 2020 WL 1493557

other than the plaintiffs.

4

The defendants point out that various documents in the record call into question whether it was two or three

individuals who sought legal assistance from Outserve regarding the accession standards in 2016 and 2017. For the

purposes of the defendants’ motions to dismiss, this is a distinction without difference.

5

In terms of percentages of total hours worked, Outserve’s attorney dedicated approximately 4.3% of his work to

HIV-related matters in 2016, and approximately 40% of his work to HIV-related matters in 2017. Id. at 11–12. It is

unclear from the record how much of this work focused on the military’s accession and retention policies. In 2018,

Outserve’s attorney dedicated approximately 44% of his work to HIV-related matters, with at least 11% spent

specifically on the military’s accession and retention policies. Id.

6

The defendants point out that various documents in the record call into question whether the launch of the online

resource tool for regional directors was scheduled to occur in the second or third quarter of 2018. For the purposes

of the defendants’ motions to dismiss, this is a distinction without difference.

7

The plaintiffs identified several other Outserve efforts that were delayed, such as advocacy on the reform of military

spousal tax policy, an HIV 101 educational program, and legal services to two specifically identified clients; however,

these delays either occurred after both actions were filed, or it is unclear from the record when they occurred.

Because, as previously discussed, “[w]hether a plaintiff has standing is determined by considering the relevant facts

as they existed at the time the action was commenced,” these delays will not be considered. Rep. Bank, 245 F. App’x

at 310; see also Lebron, 670 F.3d at 561.

8

This is consistent with the parties supplemental briefs. Although the parties’ initial briefs focused much more on

whether Outserve had representational standing, after the additional discovery period, their supplemental briefs

focused much more on whether Outserve had direct standing.

9

In any event, Federal Rule of Civil Procedure 15(a)(2) permits amendments to pleadings at any time before trial with

leave of court, and states that “[t]he court should freely grant leave when justice so requires.” Fed. R. Civ. P.

15(a)(2). For the same reasons that waiver and forfeiture are inapplicable, such an amendment is justified here.

10 See also League of United Latin Am. Citizens – Richmond Regional Council 4614 v. Pub. Interest Legal Found., 2018 WL 3848404, at *2 n.1 (E.D. Va. Aug. 13, 2018); Heap v. Carter, 112 F. Supp. 3d 402, 417 (E.D. Va. 2015); Lee v. Va. Bd. of Elections, 155 F. Supp. 3d 572, 577–78 (E.D. Va. 2015); Jefferson v. Sch. Bd. of City of Norfolk, 2010 WL 11527350, at *3 (E.D. Va. Nov. 18, 2010); Goldstein v. Costco Wholesale Corp., 278 F. Supp. 2d 766, 770 (E.D. Va. 2003); Moseke v. Miller & Smith, Inc., 202 F. Supp. 2d 492, 499 (E.D. Va. 2002); Charles Alan Wright, et al., Federal Practice and Procedure § 3531.9.5 (3d ed. 2019) (“Injury to an organization’s efforts to help others or address social problems has supported standing in a number of cases since the Havens Realty case. The most secure foundation for standing seems to be found in showing that the organization has devoted specific effort and expense to combat the challenged activity.”).

11 The defendants summarily argue that many of the project delays at issue occurred before the complaint in Roe was filed but after the complaint in Harrison was filed, such that Outserve at least lacked standing to sue in Harrison. This argument is unpersuasive because a sufficient number of the project delays occurred before the complaint in Harrison was filed, including advocacy on the reform of military sexual trauma policy, the legal services program to file clemency petitions on behalf of LGBTQ+ veterans who were court martialed or discharged because of military policies regarding sexual activity, and the legal services program to file test cases on behalf of LGBTQ+ veterans who were discharged under the military’s “Don’t Ask Don’t Tell” policy before they could qualify for certain veterans’ benefits. The defendants also summarily argue that the plaintiffs rely largely on answers to interrogatories and deposition testimony, and have not provided specific documentary evidence corroborating either. This argument is unpersuasive because, at this stage of the litigation, the plaintiffs are only required to “set[ ] forth by affidavit or

Harrison v. Spencer, --- F.Supp.3d ---- (2020) 2020 WL 1493557
other evidence specific facts” which “establish[ ] each element” of standing. Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quotation omitted).
12 See also Casa de Md. v. Trump, 414 F. Supp. 3d 760, 773 (D. Md. 2019) (explaining that “like [the organization] in Havens Realty” and “unlike the organization in Lane, [the plaintiff] allege[d] that the diversion of its resources frustrated its mission by preventing it from continuing an affirmative advocacy posture, including, for example, advocating on public health issues at the state and local level in Maryland”).
13 The defendants briefly argue that even if the plaintiffs have demonstrated an injury-in-fact in the manner discussed above, they cannot demonstrate that such an injury was caused by increased work regarding the military’s accession and retention policies specifically, rather than increased HIV-related work generally, increased legal services work generally, or Outserve’s purportedly strained finances. This argument is unpersuasive because the causation element of standing only requires that the challenged policies be “in part responsible” for the plaintiff’s injury. Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260, 283 (4th Cir. 2018). “[T]he causation element of standing does not require the challenged [policies] to be the sole or even immediate cause of the injuries.” Id. at 284; see also Libertarian Party, 718 F.3d at 316.