Roe v. Shanahan (359 F. Supp. 3d 382, 2019)

Leonie M. Brinkema, United States District Judge

Plaintiffs Richard Roe ("Roe") and Victor Voe ("Voe") 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, 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 Finally, Counts IV and V allege that several of defendants' policies "are based on outdated thinking that does not comport with the current state of HIV medical science" and that defendants' failure to update those policies amounts to an independent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.

Plaintiffs have moved for a preliminary injunction preventing Roe and Voe, along with similarly situated servicemembers, from being discharged 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. The parties have fully briefed and argued their motions. For the reasons stated below, defendants' motion to dismiss will be denied, and plaintiffs' motion for a preliminary injunction will be granted in part and denied in part.

I. BACKGROUND

A. Factual Background

1. Richard Roe

Roe enlisted in the Air Force in 2012. Compl. for Declaratory & Injunctive Relief [Dkt. No. 1] ("Compl.") ¶ 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. ¶ 58. Roe hoped to make the Air Force his lifelong career and one day commission as an officer. Id. ¶ 74.

Roe's upward trajectory was halted in October 2017, when he was diagnosed with HIV while on active duty. Compl. ¶ 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." Id. ¶¶ 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. ¶¶ 72-75.

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. 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 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" 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"). Compl. ¶ 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. ¶¶ 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 deployment" to the Central Command ("CENTCOM") area of responsibility, 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." 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" -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.

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. Pls.' Memo. Ex. A [Dkt. No. 44] ¶ 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. ¶ 74. But for his impending discharge date, Roe's term of service (considering the extensions he received) would have expired on June 25, 2019. Pls.' Memo. Ex. A [Dkt. No. 44] ¶ 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. Compl. ¶ 77. He has served in several countries overseas and in 2014 was deployed to the Middle East. Id. ¶ 78. Like Roe, Voe is dedicated to 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 2017. Compl. ¶ 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. ¶ 80. 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 of Voe's commanding officer but found that Voe's

medical condition prevents him from reasonably performing the duties of his 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.

A758. 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. ¶ 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" 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. 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 [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. Compl. ¶ 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, Pls.' Memo. Ex. B [Dkt. No. 44-7] ¶¶ 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. ¶ 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. ¶ 49. The first sea change involved the means of treatment. Beginning in the mid-1990s, antiretroviral medications were developed that, if taken consistently, can effectively reduce a patient's viral load to zero. Id. ¶¶ 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. ¶¶ 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. ¶ 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 highest-risk sexual activity-engaging in an act of receptive anal sex with an untreated HIV-positive person without using a condom or other means of prophylaxis-carries a risk of transmission of only 1.38%. Compl. ¶ 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 noneligible risk of transmission. Id. ¶ 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. ¶¶ 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.

1. 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, § 1, 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.

(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 A97-98; and infectious diseases, which are defined to include "[a]ctive tuberculosis or known blood-borne 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 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, § 1(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)(1), 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 in the event a servicemember challenges the IPEB's 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(l ), at A21.

Finally, DoDI 1332.45-sometimes referred to as the "deploy or get out," or "DOGO," instruction, e.g., Compl. ¶ 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, § 1.2(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. § 1.2(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)(1), at A64. 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.

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 44-178, 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 44-178 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 of laboratory evidence of HIV infection." Id. § A9.1.1, at A329. Instead, HIV-positive servicemembers are evaluated for retention or separation in accordance with the Air Force's DES. See id. § A9.2.1. Those who are retained are given an appropriate assignment limitation code and are returned to duty. Id. § A9.1.2.

The Air Force has released additional guidance documents on the treatment of HIV-positive servicemembers. For years, "nearly all cases of asymptomatic HIV resulted in a return to 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.

Under Rule 12(b)(1) 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 12(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 proceeding 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, 89 S.Ct. 1657, 23 L.Ed.2d 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 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. 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, --- U.S. ----, 136 S.Ct. 1850, 1857, 195 L.Ed.2d 117 (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, 89 S.Ct. 1657 ("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, "requir[ing] an understanding of its purposes and of the particular administrative scheme involved." McKart, 395 U.S. at 193, 89 S.Ct. 1657. If the burdens of enforcing an exhaustion requirement seriously outweigh the benefits in a particular case, that requirement may be excused.

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 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, the 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.

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, 120 S.Ct. 1084, 146 L.Ed.2d 1 (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. 1:17-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 formality-particularly 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 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 Pls.' 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. 1:18-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. Pls.' 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.

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 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, 95 S.Ct. 1300, 43 L.Ed.2d 591 (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 second-guess 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 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 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. 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. Other courts of appeals have rejected the rule on the theory that it "erroneously 'intertwines the concept of justiciability 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 Mindes have done so for good reason: Its four-factor test, which weighs the plaintiff's case and injuries against military independence and expertise, speaks more to the merits and the appropriate scope of equitable relief than the threshold matter of justiciability.

Nonetheless, even assuming the Mindes test remains good law and applies to this dispute, 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 claims surely counsels in favor of judicial 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, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (citation omitted). Standing "is built on separation-of-powers principles" and "prevent[s] the judicial process from being used to usurp the powers of the political branches." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). Accordingly, the standing inquiry is "especially rigorous when reaching the merits of the 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, 117 S.Ct. 2312, 138 L.Ed.2d 849 (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, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 112 S.Ct. 2130.

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 "terms have expired only because Defendants' illegal policies forced them into the medical discharge process and prevented them from reenlisting." Pls.' Opp'n & Reply 15.

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. ¶¶ 74, 88; see Pls.' Memo. Ex. A [Dkt. No. 44] ¶¶ 6-7; id. Ex. B [Dkt. No. 44-7] ¶¶ 20-21. 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, 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.

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, 97 S.Ct. 2434, 53 L.Ed.2d 383 (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 Pls.' Memo. Ex. C [Dkt. No. 40] ¶¶ 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) ). Defendants misstate the law. In adjudicating a factual challenge to subject matter jurisdiction, "the trial court [has] the discretion 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 12(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) ). 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.

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 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.

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, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964) (quoting Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (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, 95 S.Ct. 1225, 43 L.Ed.2d 514 (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, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (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, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). Although classifications need not "be drawn with precise mathematical nicety," id. at 538, 93 S.Ct. 2821 (internal quotation marks and citation omitted), rational basis review is not "toothless," Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). The government "may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) ; see Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 83, 108 S.Ct. 1645, 100 L.Ed.2d 62 (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, 105 S.Ct. 3249, or a "bare ... desire to harm a politically unpopular group," Moreno, 413 U.S. at 534, 93 S.Ct. 2821.

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 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, 103 S.Ct. 2856, 77 L.Ed.2d 443 (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 of judgment." Perez v. Cissna, No. 18-1330, 914 F.3d 846, 852, 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 protect