Two members of the Air Force file suit against the Pentagon

Two U.S. airmen say a Pentagon decision to discharge them owing to their HIV status violates the Constitution’s equal protection clause and federal law.

Case 1:18-cv-01565 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.

CIVIL ACTION NO._________________

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.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiffs Richard Roe, Victor Voe, and OutServe-SLDN, Inc. (collectively, aPlaintiffsa),
by and through their attorneys, bring this action for declaratory and injunctive relief stemming
from Roeas and Voeas 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 (aHIVa)aeven 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 membersa
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 1988aat the height of the AIDS crisisaand continuing today, the

Department of Defense (aDoDa) 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 Airmenamore than 65 percentaand 266 of those sailorsamore than 68
percentawere 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 oneas 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 dreamaand a family legacyaby enlisting in the

Air Force in 2012. He has been stationed in two foreign countries. The Air Force recognized
Roeas 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 Roeas doctor and commanding officer that he be returned to duty, the
Secretary of the Air Force (aSAFa) 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 Forceas mission and support his comrades, Voe cut short his
adwell timea 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 Voeas 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 SAFas 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 SAFas actions, as well as DoD and Air Force policies and practices that treat
Roe and Voeaand others living with HIVadifferently from other Service members (including
those with manageable chronic medical conditions that have no effect on their ability to serve),
violate Roeas and Voeas 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 aDoD Retention Policy for Non-Deployable Service Membersa)
(hereinafter aDeploy or Get Out Policya or aDOGO Policya)). This directive arguably would have
applied to almost all Service members living with HIV. See Department of Defense Instruction
6490.07 (aMedical Conditions Usually Precluding Contingency Deploymenta), Encl. 3(e)(2), at p.
11 (classifying HIV as a amedical condition[] usually precluding contingency deploymenta).
13.

Then, in July 2018, the DoD issued DoDI 1332.45 (the aDOGO Instructiona),

which provides that Service members living with HIV will be categorized as adeployable with
limitations.a
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 statusaeven 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.

Defendantsa 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.

ASSASS 1331, 1343, and 2201a02.

This case poses federal questions that arise under the U.S.

Constitution and the Administrative Procedure Act (aAPAa), 5 U.S.C. ASSASS 701a06.
19.

Venue is proper in the Eastern District of Virginia under 28 U.S.C. ASS 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 communityaService
members, veterans, civilian DoD, and their spouses and familiesaworldwide. The organizationas
mission is to address and endathrough litigation, policy advocacy, and educationaall 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 membersaveterans, active-duty
Service members, and civilian DoD workers throughout the world who identify as LGBTQ+ or
are living with HIVaand 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 aPositive Foruma 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 Departmentas
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 (aDoDIsa) 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 (aAFIsa) 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, aDeployment-Limiting Medical Conditions for Service Members

and DoD Civilian Employeesa 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 employeeas 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.

aA diagnosis of human immunodeficiency (HIV) antibody positive with the

presence of progressive clinical illness or immunological deficiencya 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 apresence of progressive
clinical illness or immunological deficiency.a Neither Roeas nor Voeas medical condition is
characterized by athe presence of progressive clinical illness or immunological deficiencya 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 aHuman Immunodeficiency Virus (HIV) in Military Service

Members,a provides that a[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.a The Instruction presumes that some Service members will be afit for dutya and awill
be allowed to serve.a
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 (aDOGOa) Instruction, applies to

Defendantsa 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 aService 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 [aDeployment-Limiting
Medical Conditions for Service Members and DoD Civilian Employeesa].a
43.

According to the DOGO Instruction, Service members classified as aDeployable

with Limitationsa may be retained for service despite limitations on their deployability.
44.

HIV is a condition referred to in DoDI 6490.07.

Therefore, according to

Defendantsa own policies, people living with HIV should be classified as aDeployable with
Limitationsa 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 aHuman Immunodeficiency Virus Program,a sets forth the Air

Forceas procedures following a positive HIV test. Active-duty Airmen who test positive are first
acounseled by a physiciana about athe significance of a positive test,a aprecautions to mitigate
transmission,a and aprognosis.a They are also aadministered an order to follow preventive
medicine requirements.a
47.

Under AFI 44-178, active-duty Airmen who test positive for HIV amust [then]

undergo medical evaluation for the purpose of determining status for continued military service.a
After an initial evaluation and return visit at six months, they are required to be tested ayearly
thereaftera 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 aHIV seropositivity alone is not grounds for medical

separation or retirement for [active-duty Air Force] members.a 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 aare able to perform the duties of their office, grade, rank and/or
rating.a They amay not be separated solely on the basis of laboratory evidence of HIV infection.a
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 personas blood, which is referred to as the
aviral load.a 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 avirally suppressed,a or a viral load of less than 48 to 50, which is referred to as an
aundetectablea 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 diagnosisaa
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
(aCDCa) 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 sexathe riskiest sexual
activityais 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 activitiesaincluding biting, spitting, and throwing of body
fluidsathe CDC characterizes the risk as anegligiblea and further states that aHIV transmission
through these exposure routes is technically possible but unlikely and not well documented.a 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 societyas collective consciousness.
C. Roeas 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 Roeas 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 Programaa 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 (aARTa). The first time he was tested after
beginning ART, his viral load was undetectable. It has remained so ever since. Roeas 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 Roeas 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, AP 2.4, at p. 5.
62.

Roeas commanding officer wrote an evaluation recommending retention on the

grounds that Roe was fit to serve and was aa valued team member.a Roeas primary care doctor
also recommended that he be returned to duty.
63.

Despite these recommendations, on February 22, 2018, Roeas local Informal

Physical Evaluation Board (aIPEBa) concluded that his acondition is not compatible with the
fundamental expectations of military service,a because it is asubject to sudden and unpredictable
progression and will result in deployment restrictions.a The IPEB recommended that Roe be
discharged.
64.

The IPEBas determination was contrary to current medical science, under which

the progression of Roeas 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 (aFPEBa) of the Air Force,

located at Randolph Air Force Base near San Antonio, Texas. In preparation for the FPEB hearing,
Roeas 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 a[no] medical reason to explain why [Roe] would not be
returned to duty.a
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 IPEBas decision. Reasoning that Roeas condition aplace[d an] increased burden on
others within his career fielda 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 (aAFPBa). 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 acompliant with all treatment, is

currently asymptomatic, and has an undetectable human immunodeficiency virus (HIV) viral
load.a The SAF further noted that Roe is aable to perform all in garrison duties, has passed his
most recent fitness assessment without any component exemptions, and his commander strongly
supports his retention.a
70.

Nevertheless, the memorandum stated that Roe was aunfit for continued military

servicea 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 Forceas mission as a logistics

specialist, in his regular capacity and with no physical restrictions.
73.

Roeas 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 Roeas deployability do not accurately reflect his health

status or ability to serve. As Roeas case illustrates, Defendantsa 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 (aAFPCa) of

his separation date. This notice will arrive any day.
D. Voeas 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.
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78.
mission there.

Voe was deployed for six months to the Middle East to support the Air Forceas
Upon his return, he sought and received special approval from the Wing

Commander to cut short his adwell time,a 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.

Voeas 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 Voeas 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 avaluable [Air Force] asseta and recommended
his retention. Voeas doctors offered the opinion that his medical conditionaincluding his HIV
statusadid 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
Voeas 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 IPEBas 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 FPEBas 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 acompliant with all treatment, is currently asymptomatic, and has an undetectable human
immunodeficiency virus (HIV) viral load.a The memorandum also noted that Voe is aable to
perform all in garrison duties, has passed his most recent fitness assessment without any
component exemptions, and his commander strongly supports his retention.a Even so, the SAF
concluded that because Voeas condition precludes him from deploying worldwide without a
waiver, it renders him aunfit for continued military service.a 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
APA a re Discharge

COUNT I
Equal Protection

Violation of Equal Protection Under the Fifth Amendmentas 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.

Defendantsa 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 advancesathe benefits of which have only
recently been fully understood and documentedaa personas HIV status bears no
relation to that personas 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.

Defendantsa 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 Constitutionas 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 issueaHIV statusaadequately 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. aA diagnosis of human immunodeficiency virus (HIV) antibody positive with the
presence of progressive clinical illness or immunological deficiencya 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 athe presence of progressive
clinical illness or immunological deficiencya beyond that required to confirm an HIV diagnosis.
108. Neither Roeas nor Voeas medical condition is characterized by athe presence of
progressive clinical illness or immunological deficiencya 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 DoDas own regulations in deciding that Roe
and Voe should be separated. Had Defendant followed the DoDas own regulations, Roe and Voe
would have been retained and returned to Duty.
111. Specifically, Defendantas determinations that Roe and Voe should be separated is
contrary to DoD regulations requiring that Service members living with HIV be classified as
aDeployable with Limitationsa and not separated because of non-deployability. Defendantas
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 Wilsonas assessments and determinations regarding the separation of Roe and Voe
insofar as those assessments centered on deployability restrictions.
113. The DOGO Instruction states that aService 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.a
114. DoDI 6490.07 lists HIV awith progressive clinical illness or immunological
deficiencya as one of these conditions.
115. According to the DOGO Instruction, Service members classified as aDeployable
with Limitationsa are to be retained, not separated based on deployability restrictions.
116. Though it should have been part of Defendant Wilsonas 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 Forceas 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, Defendantas determination that Roe and Voe should be separated is
contrary to AFI 44-178, which sets forth the Air Forceas procedures following a positive HIV test.
120. Though it should have been part of Defendant Wilsonas 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 aHIV seropositivity alone is not grounds for medical
separation or retirement for [active-duty Air force] members.a They amay not be separated solely
on the basis of laboratory evidence of HIV infection.a 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 aare able to perform the duties of their office, grade, rank and/or rating.a
122. Roeas and Voeas commanding officers confirmed their ability to continue
performing their duties. Roeas and Voeas doctors imposed no work restrictions as a result of their

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diagnoses. Therefore, Roe and Voe aare able to perform the duties of their office, grade, rank
and/or rating.a
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 asolely on the basis of laboratory evidence of HIV infection.a
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. ASS 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 Forceas 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 SAFas discharge
decisions in both of their cases state that their HIV diagnoses apreclude[] [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,a and that a[d]eployability is a key factor in determining fitness for duty.a
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 aremained symptom free
and with an undetectable viral loada since March 2016 would be retained and returned to duty.
This was so even though the SAF acknowledged that the Airman amay require an Assignment
Limitation Code aCa and, if so, [she] would require waivers to deploy.a
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 SAFas 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, Roeas and Voeas 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. ASS 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, Defendantsa 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. Defendantsa 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. ASS 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 Defendantas 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.
ASS706(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. ASS 2201, that Roeas and Voeas
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. ASS 2201, that Roeas and Voeas
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 Roeas 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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Air Force to re-evaluate Plaintiff Voeas 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 aMedical Conditions Usually Precluding Contingency
Deploymenta (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 attorneysa fees; and
J. Award such further relief as this Court deems appropriate.

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Dated: December 19, 2018

Respectfully submitted,

Peter Perkowski*
OUTSERVE-SLDN, INC.
1133 19th St. NW
Washington, DC 20036
T: (800) 538-7418
PeterP@outserve.org

/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

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

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

Julie A. Bauer*
WINSTON & STRAWN LLP
35 West Wacker Drive
Chicago, IL 60601
T: (312) 558-5600
JBauer@winston.com