## Facts

- Two active-duty U.S. Air Force members living with HIV sued under pseudonyms “Richard Roe” and “Victor Voe,” along with OutServe-SLDN, Inc.
- The Air Force initiated discharge actions finding the servicemembers “unfit for continued service,” largely because it treated them as non-deployable under U.S. Central Command (CENTCOM) deployment policies.
- The plaintiffs’ HIV was controlled through modern treatment, and they had strong service records; their superiors supported their continued service.
- Department of Defense and Air Force regulations contemplated continued service for HIV-positive members whose condition was stable and required fitness determinations tied to deployability.
- Because a large share of Air Force deployments were to CENTCOM’s area of responsibility, the Air Force effectively treated HIV-positive status as categorically disqualifying for deployment and, in turn, for retention.

## Issues

1. Whether challenges to the Air Force’s HIV-related discharge decisions and associated deployment policies presented a justiciable controversy subject to judicial review.
2. Whether plaintiffs were likely to succeed on the merits of an Administrative Procedure Act claim that the discharge decisions and/or deployment policies were arbitrary and capricious.
3. Whether plaintiffs showed irreparable harm and that the balance of equities and the public interest favored preliminary injunctive relief.
4. Whether the court needed to reach the Fifth Amendment equal protection claim at the preliminary-injunction stage.

## Decision

- The Fourth Circuit affirmed the district court’s nationwide preliminary injunction.
- The court held the dispute was justiciable because it challenged the lawfulness and evidentiary basis of policies and discharge decisions, not battlefield or operational judgments.
- The court agreed plaintiffs were likely to succeed on their APA claim because the Air Force’s approach likely rested on categorical assumptions rather than required individualized fitness assessments and was inconsistent with current medical evidence.
- The court upheld findings of irreparable harm from impending discharge, including loss of career, benefits, and opportunities not readily remedied by damages.
- The court concluded the balance of equities and the public interest favored maintaining the status quo pending litigation.
- Having found likely success on the APA claim, the court declined to decide the equal protection claim at that stage.

## Legal Principles

- Military personnel actions are not categorically immune from judicial review; courts may review whether military agencies complied with governing law and whether policy-based decisions satisfy the APA’s rationality requirements.
- Agency action is likely arbitrary and capricious when it relies on blanket assumptions that bypass required individualized determinations, especially where governing rules contemplate case-by-case evaluation.
- Policies that cannot be reconciled with current medical evidence may be deemed irrational under the APA when the evidentiary record does not support categorical restrictions.
- For preliminary injunctions, threatened discharge from military service may constitute irreparable harm due to non-compensable career and benefit losses.
- If a plaintiff shows a likelihood of success on a nonconstitutional ground sufficient to support injunctive relief, a court may postpone constitutional adjudication.

## Conclusion

The Fourth Circuit upheld a nationwide preliminary injunction preventing HIV-based discharges tied to deployability rules, concluding the plaintiffs raised a justiciable challenge and were likely to prove the Air Force’s actions and related policies were arbitrary and capricious under the APA, with irreparable harm and equitable factors supporting interim relief.


Roe v. U.S. Dep’t of Def., 947 F.3d 207 (4th Cir. 2020)