ROE v. DEPT. OF DEFENSE

No. 19-1410.

947 F.3d 207 (2020)

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.

United States Court of Appeals, Fourth Circuit.

Decided: January 10, 2020.

Amended: January 14, 2020.


Attorney(s) appearing for the Case

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.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Diaz and Judge Floyd joined.


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...

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