Attorneys for the Modern Military Association of America (MMAA) and a service member living with HIV filed a motion with the U.S. District Court for the Eastern District of Virginia asking the court to enforce its injunctions prohibiting the Department of Defense (DOD) from refusing to deploy or commission service members living with HIV whose HIV is well managed.
“Despite the injunctions entered by a federal court in Virginia over a year ago, HIV-positive service members are still facing barriers to deployment and commissioning,” said Joshua Fontanez, Board Chair for MMAA. “It is unconscionable that the DOD has left in place almost all of the roadblocks denying these opportunities to healthy and qualified members of the military.”
“I’m disappointed that I continue to be treated unfairly based on my HIV-positive status,” said Plaintiff Richard Roe, who is proceeding under a pseudonym. “The changes the military made after last year’s orders have fallen short of achieving real equity for service members living with HIV—and that will make it hard for me to advance my career in the Air Force.”
Following an April 6, 2022 district court ruling in Harrison v. Austin and Roe v. Austin, the Department of Justice (DOJ) announced in June that it would no longer defend discriminatory restrictions that prevented service members living with HIV from deploying and commissioning as officers in the U.S. military. Subsequently, Defense Secretary Lloyd J. Austin III issued a memorandum outlining changes to the relevant regulations, and the DOJ voluntarily dismissed the appeal of the decision declaring the former policies unlawful.
“From the outset, we were skeptical the changes DOD made in response to the injunctions would end its discriminatory practices, but we decided to allow time and experience to reveal their actual effect,” said Scott A. Schoettes, co-lead attorney for plaintiffs. “Unfortunately, our skepticism was borne out, as multiple HIV-positive service members continue to encounter problems.”
In the opinion explaining the April 6, 2022 ruling, District Court Judge Leonie Brinkema declared the policies unconstitutional and ordered the Air Force to rescind its prior decision to discharge two Airmen and the Army to reconsider its decision denying Sergeant Nick Harrison, a member of the D.C. Army National Guard, a commission into the Judge Advocate General Corps. More broadly, the orders enjoined the DOD, Army, and Air Force from separating, discharging, refusing to deploy, or denying the commission applications of HIV-positive service members based on their supposed ineligibility to serve in combat or in areas with limited medical facilities.
“Multiple service members have reached out to me about serious barriers in obtaining authorization for deployment, competing for preferred assignments, taking advantage of educational and training opportunities, and securing a commission, many of them reporting that decision-makers claimed the policies had not changed since the court’s orders,” said Peter Perkowski, co-lead attorney for plaintiffs. “The court recognized this profound inequity last year; we are just asking that the DOD be required to fix the problems as previously ordered.”
The hearing on the motion to enforce the injunctions is scheduled for late June. Modern Military Association of America and Richard Roe are represented by Scott A. Schoettes, Esq., Peter Perkowski of Perkowski Legal, PC, and Ashley Phillips of Williams Mullen PC. Attorneys Perkowski and Schoettes are also counsel in a case filed with the same court in November challenging the policy that prevents people living with HIV from joining the military, which was not affected by the April 2022 ruling.
