Case: Roe v. U.S. Dep't of Defense

1:18-cv-01565 | U.S. District Court for the Eastern District of Virginia

Filed Date: Dec. 19, 2018

Case Ongoing

Clearinghouse coding complete

Case Summary

On December 19, 2018 two US Airmen under pseudonym and OutServe-SLDN, a network of LGBTQ military service-people, filed suit against the U.S. Department of Defense, in the U.S. District Court for the Eastern District of Virginia. The Plaintiffs argued that the Department of Defense had violated equal protection under the Fifth Amendment and the Administrative Procedure Act. The plaintiffs, represented by Winston and Strawn LLP, LAMBDA Legal Defense and Education Fund, and Outserve-SLDN, sought …

On December 19, 2018 two US Airmen under pseudonym and OutServe-SLDN, a network of LGBTQ military service-people, filed suit against the U.S. Department of Defense, in the U.S. District Court for the Eastern District of Virginia. The Plaintiffs argued that the Department of Defense had violated equal protection under the Fifth Amendment and the Administrative Procedure Act. The plaintiffs, represented by Winston and Strawn LLP, LAMBDA Legal Defense and Education Fund, and Outserve-SLDN, sought declaratory and injunctive relief allowing HIV-positive service members to continue to serve, as well as money damages. The plaintiffs alleged that they were discharged from their duties in the Air Force due to their HIV status.

Specifically, the complaint alleged that the plaintiffs were discharged based on their HIV status. The complaint explains that what it means to be living with HIV has changed significantly since its origin, “for most people living with HIV, medication renders their HIV inconsequential to their daily lives.” Both plaintiffs Roe and Voe were service members in good standing. Both had been successfully deployed to foreign countries twice and were excelling in their positions when they were diagnosed with and began treatment for HIV. Both of the plaintiffs were able to get their viral loads to an undetectable status quickly, however they were both dismissed from the Air Force solely on the basis of the HIV status. When the Air Force discharged Roe and Voe, the Air Force described HIV as rendering the service members ineligible for deployment to the Central Command area of responsibility. The Air Force also noted the service members were precluded from being able to deploy world-wide without a waiver.

The case was assigned to Judge Leonie M. Brinkema. On January 11, 2019 the plaintiffs filed a motion for a preliminary injunction to preserve the status quo until there was a judgment on the merits of the plaintiffs claims. The plaintiffs requested that the injunction prevent the defendants from restricting Roe and Voe and others similarly situated from being promoted, changing duty station, or re-training on the same terms as other service members living with HIV who were not being separated. On January 25, 2019, the Department of Defense opposed the plaintiffs' motion for a preliminary injunction and also filed a motions to dismiss for lack of jurisdiction and failure to state a claim.

A hearing was held before Judge Brinkema on February 15, 2019. The same day, Judge Brinkema issued an opinion granting in part and denying in part the plaintiffs' motion for preliminary injunction. The order enjoined the defendants from separating or discharging from military service Richard Roe, Victor Voe, and any other similarly situated active-duty member of the Air Force because of their classification as ineligible for worldwide deployment or deployment to the United States Central Command area due to their HIV-positive status. Judge Brinkema also denied the defendants' motion to dismiss. 359 F.Supp.3d 382.

The same day the order was issued, the plaintiffs OutServe-SLDN filed a motion to amend the preliminary injunction. In the motion, the plaintiffs asked the court to remove the phrase "active-duty." There was a member of the Air National Guard who faced separation from service on the basis of HIV-positive status. Four days after the motion was filed, the court denied to amend the preliminary injunction, and Judge Brinkema said that this airman was not similarly situated to the named plaintiffs because he is not on active-duty and he is part of the National Guard, which is a separate institution from the Air Force. Judge Brinkeman dismissed this motion without prejudice.

On March 22, 2019 plaintiffs OutServe-SLDN filed a motion to compel documents and information withheld on the basis of deliberative process privilege. The plaintiffs claimed that the defendants were withholding 161 documents because they allegedly involved Defendants’ decision-making regarding policies affecting service members living with HIV. The documents at issue were related to the determinations that Plaintiffs Roe and Voe were limited in their ability to deploy, documents that defendants relied upon in writing or amending Air Force policies relating to individuals living with HIV, and documents related to the deployability of other Airmen living with HIV, and the decisions to separate or retain those Airmen. The defendants opposed this motion, and a hearing was held before Magistrate Judge Ivan D. Davis on March 29, 2019. The motion to compel production was held in abeyance by Judge Davis pending review of a similar issue in the companion case, Harrison v. Spencer.

On April 5, 2019, the defendants filed a motion to modify the preliminary injunction to include the following language:

If an Airman wishes to be excepted from this Order and be separated or discharged, the Air Force shall provide them a written notice that their consent to separation is not required and that a federal lawsuit may result in his or her retention. After receiving such a notice, the Airman may make a written request to proceed with his or her separation or discharge, and then the Air Force may proceed with the separation or discharge.
The plaintiffs did not oppose this motion, and three days later, Judge Brinkema granted the motion and amended the February 15 Order as proposed.

The defendants filed a notice of appeal to the U.S. Court of Appeals for the Fourth Circuit on April 16, 2019. They appealed the February 15, 2019 decision denying the defendants motion to dismiss that granted in part and denied in part the plaintiffs' motion for a preliminary injunction. (Appellate Docket No. 19-01410). Amicus briefs were filed by the HIV Medicine Association (with the American Academy of HIV Medicine, GLMA: Health Professionals Advancing LGBTQ Equality, and Infectious Diseases Society of America), former military officials, and the American Public Health Association (with Duke Law Health Justice Clinic, Southern AIDS Coalition, The National Alliance of State and Territorial AIDS Directors, and NMAC). All three amicus briefs were in support of the appellees. Oral argument was held on September 18, 2019 before a panel of Fourth Circuit Judges comprised of Judges James A. Wynn Jr, Albert Diaz, and Henry F. Floyd.

Back in the district court, on May 3, 2019, the defendants filed a motion to dismiss for lack of jurisdiction in part. The defendants argued that the plaintiffs lacked standing to sue since Outserve was not injured by the military's policies nor was it the type of institutional plaintiff that can sue based on injury to its members. The plaintiffs rejected both of these contentions. On May 31, 2019 oral argument was held before Judge Brinkema, and on the same day, Judge Brinkema ordered that the motion to dismiss be held in abeyance so that the parties could engage in additional discovery.

On June 18, 2019, following a decision in the companion case Harrison v. Shanahan, regarding the production of documents where the defendants similarly opposed the motion on the basis of deliberative process privilege, Magistrate Judge Davis issued an order granting in part and denying in part the plaintiffs' motion to compel documents and information. Judge Davis denied the motion to compel with regard to one document because it was not relevant to plaintiffs' claims because it was an appeal of a physical evaluation board hearing for someone who was not a party to this case. Based on the decision in Harrison v. Shanahan, Judge Davis ordered the defendants to produce the other requested documents because they were relevant to the plaintiffs' case, there is no other source of information, and the possible negative effect on the government is outweighed by the plaintiffs need for the information.

In July 2019, the plaintiffs filed another motion to compel documents and information withheld on the basis of deliberative process privilege. After the June 2019 order by Magistrate Judge Davis, the defendants produced many documents, however, the defendants refused to produce complete versions of eight emails to and from senior officials regarding the Air Force’s decision to refer asymptomatic HIV-positive Airmen into the Disability Evaluation System and to separate them from service.

The plaintiffs filed a motion for partial summary judgment on July 23, 2019 with respect to their claim that the determinations of Roe and Voe's deployability and separability violated the APA, and their claim that the determinations of Roe and Voe's deployability and separability are arbitrary and capricious or an abuse of discretion.

On July 19, 2019, the defendants filed a motion to stay the summary judgment briefings and the bench trial set to begin on September 9, 2019 because of the Fourth Circuit appeal in this case. Oral argument before a panel of Fourth Circuit judges was set for September 18, 2019. On August 1, 2019, Judge Brinkema cancelled the district court trial scheduled for September 9 and stayed all proceedings until further order of the court.

On appeal, on January 10, 2020 the Fourth Circuit published an opinion affirming the decision of the district court. Four days later the Fourth Circuit published an amended superseding opinion written by Judge Wynn and joined by Judges Diaz and Floyd, once again affirming the decision of the district court. The district court previously concluded that Roe and Voe were likely to succeed on their claims that their discharges were arbitrary and capricious, in violation of the Administrative Procedure Act, and irrational, in violation of Roe and Voe’s Equal Protection rights. On the motion to dismiss, the Fourth Circuit concluded that the plaintiffs were likely to succeed on at least one claim (either that discharging Roe and Voe violated the APA or that the deployment policies violate the APA), and that absent judicial review the plaintiffs were likely to suffer irreparable harm. 947 F.3d 207.

On the preliminary injunction, the Fourth Circuit said the plaintiffs were likely to succeed on the merits of their claim that their deployment policies at issue violate the APA because the government has not and cannot reconcile the policies with current medical evidence. Judge Wynn wrote that the district court rightly found that Plaintiffs are likely to succeed on their claim that the Air Force’s discharge decisions were arbitrary and capricious, in violation of the APA. Department of Defense regulations require individualized determinations based on objective evidence to determine a service member’s fitness for duty or separation under the Disability Evaluation System. The Fourth Circuit said that the government's explanation for why is has effectively imposed a ban on deploying HIV-positive service members to the Central Command area of responsibility is "at odds with modern science." Because the Air Force ignored developments in knowledge and treatment that allow HIV-positive service members to carry out their duties without posing any substantial risk of transmission, the Air Force denied these service members an individualized determination of their fitness for military service. 947 F.3d 207

OutServe-SLDN and the American Military Partner Association merged in August 2019 and formed the Modern Military Association of America (MMAA). Due to this merger, On March 10, 2020, plaintiffs Voe and Roe filed a consent motion to substitute parties. The plaintiffs requested that the court substitute the Modern Military Association of America for OutServe-SLDN in this case, which the court did the next day.

On March 27, 2020, Judge Brinkema denied the defendants' renewed motion to dismiss and in a separate order also denied the plaintiffs' motion to compel documents and information. Judge Brinkema found that MMAA (formerly Outserve) had direct standing as the organization personally suffered an injury due to the increased staffing required by the greater number of HIV-related calls. 2020 WL 1493557.

On May 4, 2020 plaintiff Roe filed a motion for summary judgment. One month later, the defendants also filed a motion for summary judgment. A hearing before Judge Brinkema is scheduled for August 4, 2020. The case remains open.

Summary Authors

Margaret Vogel (2/13/2020)

Sabrina Glavota (6/19/2020)

Related Cases

Harrison v. Spencer, Eastern District of Virginia (2018)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/8439246/parties/roe-v-defense/


Judge(s)

Brinkema, Leonie M. (Virginia)

Davis, Ivan D. (Virginia)

Wynn, James Andrew Jr. (North Carolina)

Attorneys(s) for Plaintiff

Bauer, Julie A. (Illinois)

Cooley, Laura Joy (District of Columbia)

Eaton, Geoffrey Paul (District of Columbia)

Gailey, Lauren (District of Columbia)

Harding, John Webster Hunter (District of Columbia)

Ingelhart, Kara N. (Illinois)

Mizer, Benjamin C. (District of Columbia)

Judge(s)

Brinkema, Leonie M. (Virginia)

Davis, Ivan D. (Virginia)

Wynn, James Andrew Jr. (North Carolina)

Attorneys(s) for Plaintiff

Bauer, Julie A. (Illinois)

Cooley, Laura Joy (District of Columbia)

Eaton, Geoffrey Paul (District of Columbia)

Gailey, Lauren (District of Columbia)

Harding, John Webster Hunter (District of Columbia)

Ingelhart, Kara N. (Illinois)

Mizer, Benjamin C. (District of Columbia)

Perkowski, Peter (District of Columbia)

Rider-Longmaid, Parker A. (District of Columbia)

Schnoor, Mary H. (Illinois)

Schoettes, Scott A. (Illinois)

Sommer, Andrew Ryan (Virginia)

Attorneys(s) for Defendant

Barghaan, Dennis C. (Virginia)

Dover, Marleigh D. (District of Columbia)

Fucci, Michael J. (District of Columbia)

Hunt, Joseph H. (District of Columbia)

McCotter, R. Trent (District of Columbia)

Newman, Ryan D. (District of Columbia)

Stern, Mark B (District of Columbia)

Terwilliger, G. Zachary (District of Columbia)

Xi, James Y. (District of Columbia)

Yelin, Lewis S. (District of Columbia)

Other Attorney(s)

Anthony, Peter J. (District of Columbia)

Day, Jones (District of Columbia)

Klein, Bennett H. (Massachusetts)

Lloyd, Adam K. (California)

Minnick, Kevin J. (California)

Salgado, Richard D. (Texas)

Seferian, Laura (District of Columbia)

Documents in the Clearinghouse

Document

1:18-cv-01565

Docket [PACER]

Roe v. Defense

July 2, 2020

July 2, 2020

Docket
1

1:18-cv-01565

Complaint for Declaratory and Injunctive Relief

Roe v. Mattis

Dec. 19, 2018

Dec. 19, 2018

Complaint
72

1:18-cv-01565

Memorandum Opinion

Roe v. Shanahan

359 F.Supp.3d 382

Feb. 15, 2019

Feb. 15, 2019

Order/Opinion
70

19-01410

Opinion

Roe v. United States Department of Defense

U. S. Court of Appeals for the Fourth Circuit

947 F.3d 207

Jan. 10, 2020

Jan. 10, 2020

Order/Opinion
261

1:18-cv-01565

1:18-cv-00641

Memorandum Opinion

Harrison v. Spencer

449 F.Supp.3d 594, 2020 WL 1493557

March 27, 2020

March 27, 2020

Order/Opinion

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/8439246/roe-v-defense/

Last updated June 1, 2022, 3:21 a.m.

ECF Number Description Date Link Date / Link
1

Complaint ( Filing fee $ 400, receipt number 0422-6414179.), filed by Richard Roe, OutServe-SLDN, Inc., Victor Voe. (Attachments: # 1 Civil Cover Sheet)(Sommer, Andrew) (Entered: 12/19/2018)

1 Civil Cover Sheet

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Dec. 19, 2018

Dec. 19, 2018

RECAP
2

NOTICE of Appearance by Andrew Ryan Sommer on behalf of OutServe-SLDN, Inc., Richard Roe, Victor Voe (Sommer, Andrew) (Entered: 12/19/2018)

Dec. 19, 2018

Dec. 19, 2018

PACER
3

Financial Interest Disclosure Statement (Local Rule 7.1) by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)

Dec. 19, 2018

Dec. 19, 2018

PACER
4

Proposed Summons as to Acting Attorney General of the United States Matthew Whitaker by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)

Dec. 19, 2018

Dec. 19, 2018

PACER
5

Proposed Summons as to G. Zachary Terwilliger US Attorney for Eastern District of Virginia by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)

Dec. 19, 2018

Dec. 19, 2018

PACER
6

Proposed Summons as to James Mattis Secretary of Defense by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)

Dec. 19, 2018

Dec. 19, 2018

PACER
7

Proposed Summons as to Heather A. Wilson, Secretary of the Air Force by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)

Dec. 19, 2018

Dec. 19, 2018

PACER
8

MOTION to Proceed Under Pseudonyms and for All of Plaintiff Roe's and Plaintiff Voe's Identifying Information to be Redacted from Documents filed in the Public Record by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 12/19/2018)

1 Proposed Order

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Dec. 19, 2018

Dec. 19, 2018

RECAP
9

Memorandum in Support re 8 MOTION to Proceed Under Pseudonyms and for All of Plaintiff Roe's and Plaintiff Voe's Identifying Information to be Redacted from Documents filed in the Public Record filed by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)

Dec. 19, 2018

Dec. 19, 2018

PACER
10

Notice of Hearing Date set for 1/4/2019 re 8 MOTION to Proceed Under Pseudonyms and for All of Plaintiff Roe's and Plaintiff Voe's Identifying Information to be Redacted from Documents filed in the Public Record (Sommer, Andrew) (Entered: 12/19/2018)

Dec. 19, 2018

Dec. 19, 2018

PACER

Initial Case Assignment to District Judge Leonie M. Brinkema and Magistrate Judge Ivan D. Davis. (acha, )

Dec. 19, 2018

Dec. 19, 2018

PACER
11

Proposed Summons as to the U.S. Department of Defense by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)

Dec. 19, 2018

Dec. 19, 2018

PACER
12

Motion to appear Pro Hac Vice by Julie Anne Bauer and Certification of Local Counsel Andrew R. Sommer by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)

Dec. 19, 2018

Dec. 19, 2018

PACER
13

Motion to appear Pro Hac Vice by Kara Nicole Ingelhart and Certification of Local Counsel Andrew R. Sommer Filing fee $ 75, receipt number 0422-6414747. by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)

Dec. 19, 2018

Dec. 19, 2018

PACER
14

Motion to appear Pro Hac Vice by Lauren Gailey and Certification of Local Counsel Andrew R. Sommer Filing fee $ 75, receipt number 0422-6414754. by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)

Dec. 19, 2018

Dec. 19, 2018

PACER
15

Motion to appear Pro Hac Vice by Peter Edward Perkowski and Certification of Local Counsel Andrew R. Sommer Filing fee $ 75, receipt number 0422-6414767. by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)

Dec. 19, 2018

Dec. 19, 2018

PACER
16

Motion to appear Pro Hac Vice by Scott Schoettes and Certification of Local Counsel Andrew R. Sommer Filing fee $ 75, receipt number 0422-6414790. by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 12/19/2018)

Dec. 19, 2018

Dec. 19, 2018

PACER
17

Summons Issued as to James N. Mattis, United States Department of Defense, Heather A. Wilson, U.S. Attorney and U.S. Attorney General NOTICE TO ATTORNEY: Print out two electroncially issued summons and one copy of the attachments for each defendant to be served with the complaint. (Attachments: # 1 Notice to Attorney)(acha, ) (Entered: 12/19/2018)

1 Notice to Attorney

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Dec. 19, 2018

Dec. 19, 2018

PACER

Set Deadlines as to 8 MOTION to Proceed Under Pseudonyms and for All of Plaintiff Roe's and Plaintiff Voe's Identifying Information to be Redacted from Documents filed in the Public Record . Motion Hearing set for 1/4/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, )

Dec. 20, 2018

Dec. 20, 2018

PACER
18

ORDER granting 12 Motion for Pro hac vice for Julie Anne Bauer. Signed by District Judge Leonie M. Brinkema on 12/21/2018. (acha, ) (Entered: 12/21/2018)

Dec. 21, 2018

Dec. 21, 2018

PACER
19

ORDER granting 13 Motion for Pro hac vice for Kara Nicole Ingelhart. Signed by District Judge Leonie M. Brinkema on 12/21/2018. (acha, ) (Entered: 12/21/2018)

Dec. 21, 2018

Dec. 21, 2018

PACER
20

ORDER granting 14 Motion for Pro hac vice for Lauren Gailey. Signed by District Judge Leonie M. Brinkema on 12/21/2018. (acha, ) (Entered: 12/21/2018)

Dec. 21, 2018

Dec. 21, 2018

PACER
21

ORDER granting 15 Motion for Pro hac vice for Peter Edward Perkowski. Signed by District Judge Leonie M. Brinkema on 12/21/2018. (acha, ) (Entered: 12/21/2018)

Dec. 21, 2018

Dec. 21, 2018

PACER
22

ORDER granting 16 Motion for Pro hac vice for Scott Schoettes. Signed by District Judge Leonie M. Brinkema on 12/21/2018. (acha, ) (Entered: 12/21/2018)

Dec. 21, 2018

Dec. 21, 2018

PACER
23

ORDER: Before the Court is plaintiffs' Motion to Proceed Under Pseudonyms and for All of Plaintiff Roe's and Plaintiff Voe's Identifying Information to Be Redacted from Documents Filed in the Public Record [Dkt. No. 8]. The Court has considered plaintiffs' submission and finds it is well made. Accordingly, the Motion is GRANTED, and it is hereby ORDERED that plaintiffs shall be entitled to proceed pseudonymously and to have any personal identifying information redacted from publicly filed documents.Signed by District Judge Leonie M. Brinkema on 12/21/18. (yguy) (Entered: 12/21/2018)

Dec. 21, 2018

Dec. 21, 2018

PACER
24

AFFIDAVIT of Service as to Matthew Whitaker by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/02/2019)

Jan. 2, 2019

Jan. 2, 2019

PACER
25

AFFIDAVIT of Service as to Department of Defense by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/02/2019)

Jan. 2, 2019

Jan. 2, 2019

PACER
26

AFFIDAVIT of Service as to Heather A. Wilson by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/02/2019)

Jan. 2, 2019

Jan. 2, 2019

PACER
27

AFFIDAVIT of Service as to James Mattis by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/02/2019)

Jan. 2, 2019

Jan. 2, 2019

PACER
28

AFFIDAVIT of Service as to G. Zachary Terwilliger by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/02/2019)

Jan. 2, 2019

Jan. 2, 2019

PACER
29

Joint MOTION to Modify the Scheduling Order in the Harrison Case and for Entry of Briefing Schedule and Scheduling Order in the Roe Case by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/04/2019)

Jan. 4, 2019

Jan. 4, 2019

PACER
30

Memorandum in Support re 29 Joint MOTION to Modify the Scheduling Order in the Harrison Case and for Entry of Briefing Schedule and Scheduling Order in the Roe Case filed by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 01/04/2019)

1 Proposed Order

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Jan. 4, 2019

Jan. 4, 2019

PACER
31

NOTICE of Appearance by R. Trent McCotter on behalf of James N. Mattis, United States Department of Defense, Heather A. Wilson (McCotter, R.) (Entered: 01/04/2019)

Jan. 4, 2019

Jan. 4, 2019

PACER
32

ORDER- It is hereby ORDERED that the joint motion is GRANTED with the following exceptions: the cut-off date for all discovery is Friday, May 10, 2019 and the final pretrial for both civil actions will be held at 10:00 a.m. on Thursday, May 16, 2019, and it is further ORDERED that the parties Proposed Consolidated Discovery Schedule is approved and shall control discovery to the extent of its application unless further modified by the Court. Signed by District Judge Leonie M. Brinkema on 1/4/2019. (See order for further details). (acha, ). (Entered: 01/04/2019)

Jan. 4, 2019

Jan. 4, 2019

PACER

Set Deadlines/Hearings Discovery due by 5/10/2019. Final Pretrial Conference set for 5/16/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (acha, )

Jan. 4, 2019

Jan. 4, 2019

PACER
33

MOTION for Preliminary Injunction by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/11/2019)

Jan. 11, 2019

Jan. 11, 2019

RECAP
34

Memorandum in Support re 33 MOTION for Preliminary Injunction filed by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 01/11/2019)

1 Proposed Order

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Jan. 11, 2019

Jan. 11, 2019

RECAP
35

Notice of Hearing Date set for February 15, 2019 re 33 MOTION for Preliminary Injunction (Sommer, Andrew) (Entered: 01/11/2019)

Jan. 11, 2019

Jan. 11, 2019

RECAP
36

MOTION to Seal Exhibits A & B and Attachments by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 01/11/2019)

1 Proposed Order

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Jan. 11, 2019

Jan. 11, 2019

PACER
37

Notice of Filing Sealing Motion LCvR5(C) by OutServe-SLDN, Inc., Richard Roe, Victor Voe re 36 MOTION to Seal Exhibits A & B and Attachments (Sommer, Andrew) (Entered: 01/11/2019)

Jan. 11, 2019

Jan. 11, 2019

PACER
38

Sealed Attachment/Exhibit(s) re 36 MOTION to Seal Exhibits A & B and Attachments. (Attachments: # 1 Exhibit A1, # 2 Exhibit A2, # 3 Exhibit A3, # 4 Exhibit A4, # 5 Exhibit A5, # 6 Exhibit A6, # 7 Exhibit B, # 8 Exhibit B1, # 9 Exhibit B2, # 10 Exhibit B3, # 11 Exhibit B4)(Sommer, Andrew) (Entered: 01/11/2019)

Jan. 11, 2019

Jan. 11, 2019

PACER
39

Memorandum in Support re 36 MOTION to Seal Exhibits A & B and Attachments filed by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 01/11/2019)

Jan. 11, 2019

Jan. 11, 2019

PACER
40

EXHIBIT C-J for Memorandum in Support of Preliminary Injunction by OutServe-SLDN, Inc., Richard Roe, Victor Voe.. (Attachments: # 1 Exhibit C1, # 2 Exhibit C2, # 3 Exhibit C3, # 4 Exhibit C4, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J)(Sommer, Andrew) (Entered: 01/11/2019)

1 Exhibit C1

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2 Exhibit C2

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3 Exhibit C3

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4 Exhibit C4

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5 Exhibit D

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6 Exhibit E

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7 Exhibit F

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8 Exhibit G

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9 Exhibit H

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10 Exhibit I

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11 Exhibit J

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Jan. 11, 2019

Jan. 11, 2019

PACER
41

CERTIFICATE of Service as to Sealed Exhibits A & B and attachments by Andrew Ryan Sommer on behalf of OutServe-SLDN, Inc., Richard Roe, Victor Voe (Sommer, Andrew) (Entered: 01/11/2019)

Jan. 11, 2019

Jan. 11, 2019

PACER

Set Deadlines as to 33 MOTION for Preliminary Injunction . Motion Hearing set for 2/15/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, )

Jan. 15, 2019

Jan. 15, 2019

PACER
42

ORDER- It is hereby ORDERED that plaintiff's 36 motion is GRANTED IN PART, and that Exhibits A and B in support of plaintiff's motion for preliminary injunction may remain filed under seal; and it is further ORDERED that plaintiff's publicly file redacted versions of every document filed under seal. Signed by District Judge Leonie M. Brinkema on 1/18/2019. (See order for further details). (acha, ) (Entered: 01/18/2019)

Jan. 18, 2019

Jan. 18, 2019

PACER
43

MOTION For Entry of Agreed-Upon Protective Order and Agreed-Upon Electronically-Stored Information Order by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Exhibit A - Proposed Protective Order, # 2 Exhibit B - Proposed ESI Order)(Sommer, Andrew) (Entered: 01/18/2019)

1 Exhibit A - Proposed Protective Order

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2 Exhibit B - Proposed ESI Order

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Jan. 18, 2019

Jan. 18, 2019

PACER
44

Redacted version of Exhibits A and B and Supporting Attachments to 34 Memorandum in Support of Plaintiffs Motion for Preliminary Injunction. (Attachments: # 1 Exhibit A1, # 2 Exhibit A2, # 3 Exhibit A3, # 4 Exhibit A4, # 5 Exhibit A5, # 6 Exhibit A6, # 7 Exhibit B, # 8 Exhibit B1, # 9 Exhibit B2, # 10 Exhibit B3, # 11 Exhibit B4)(Sommer, Andrew) (Entered: 01/22/2019)

1 Exhibit A1

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2 Exhibit A2

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3 Exhibit A3

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4 Exhibit A4

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5 Exhibit A5

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6 Exhibit A6

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7 Exhibit B

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8 Exhibit B1

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9 Exhibit B2

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10 Exhibit B3

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11 Exhibit B4

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Jan. 22, 2019

Jan. 22, 2019

PACER
45

ORDER granting 43 Motion for Entry of Agreed-Upon Protective Order Signed by Magistrate Judge Ivan D. Davis on 1/22/2019. (See order for further details). (acha, ) (Entered: 01/22/2019)

Jan. 22, 2019

Jan. 22, 2019

PACER
46

ORDER GRANTING 43 MOTION For Agreed-Upon Electronically-Stored Information Order. Signed by Magistrate Judge Ivan D. Davis on 1/22/2019. (See order for further details). (acha, ) (Entered: 01/22/2019)

Jan. 22, 2019

Jan. 22, 2019

PACER
47

Memorandum in Opposition re 33 MOTION for Preliminary Injunction filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Appendix Index, # 2 Appendix Public Part 1, # 3 Appendix Public Part 2)(McCotter, R.) (Entered: 01/25/2019)

1 Appendix Index

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2 Appendix Public Part 1

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3 Appendix Public Part 2

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Jan. 25, 2019

Jan. 25, 2019

PACER
48

MOTION to Dismiss for Lack of Jurisdiction by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 01/25/2019)

Jan. 25, 2019

Jan. 25, 2019

PACER
49

MOTION to Dismiss for Failure to State a Claim by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 01/25/2019)

Jan. 25, 2019

Jan. 25, 2019

PACER
50

Memorandum in Support re 49 MOTION to Dismiss for Failure to State a Claim, 48 MOTION to Dismiss for Lack of Jurisdiction filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Appendix Index, # 2 Appendix Public Part 1, # 3 Appendix Public Part 2)(McCotter, R.) (Entered: 01/25/2019)

1 Appendix Index

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2 Appendix Public Part 1

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3 Appendix Public Part 2

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Jan. 25, 2019

Jan. 25, 2019

PACER
51

Notice of Hearing Date set for February 15, 2019 re 49 MOTION to Dismiss for Failure to State a Claim, 48 MOTION to Dismiss for Lack of Jurisdiction (McCotter, R.) (Entered: 01/25/2019)

Jan. 25, 2019

Jan. 25, 2019

PACER
52

MOTION to Seal by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 01/25/2019)

Jan. 25, 2019

Jan. 25, 2019

PACER
53

Notice of Under Seal Filing LCvR5 (B) by James N. Mattis, United States Department of Defense, Heather A. Wilson re 52 MOTION to Seal (McCotter, R.) (Entered: 01/25/2019)

Jan. 25, 2019

Jan. 25, 2019

PACER
54

Memorandum in Support re 52 MOTION to Seal filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 01/25/2019)

1 Proposed Order

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Jan. 25, 2019

Jan. 25, 2019

PACER
55

Sealed Appendix Part 1. (McCotter, R.) (Entered: 01/25/2019)

Jan. 25, 2019

Jan. 25, 2019

PACER
56

Sealed Appendix Part 2. (McCotter, R.) (Entered: 01/25/2019)

Jan. 25, 2019

Jan. 25, 2019

PACER
57

Sealed Appendix Part 3. (McCotter, R.) (Entered: 01/25/2019)

Jan. 25, 2019

Jan. 25, 2019

PACER
58

Sealed Appendix Part 4. (McCotter, R.) (Entered: 01/25/2019)

Jan. 25, 2019

Jan. 25, 2019

PACER
59

ORDER granting 52 Motion to Seal. Signed by District Judge Leonie M. Brinkema on 1/28/2019. (See order for further details). (acha, ) (Entered: 01/28/2019)

Jan. 28, 2019

Jan. 28, 2019

PACER

Set Deadlines as to 49 MOTION to Dismiss for Failure to State a Claim, 48 MOTION to Dismiss for Lack of Jurisdiction . Motion Hearing set for 2/15/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, )

Jan. 28, 2019

Jan. 28, 2019

PACER
60

Opposition to the Motion to Dismiss filed by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit C1, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(Sommer, Andrew) (Entered: 02/01/2019)

1 Exhibit A

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2 Exhibit B

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3 Exhibit C

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4 Exhibit C1

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5 Exhibit D

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6 Exhibit E

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7 Exhibit F

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8 Exhibit G

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Feb. 1, 2019

Feb. 1, 2019

PACER
61

Reply to Opposition to Preliminary Injunction filed by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 02/01/2019)

Feb. 1, 2019

Feb. 1, 2019

PACER
62

MOTION to Seal Exhibits A & B to Plaintiffs' Opposition to the Motion to Dismiss and Reply in Support of their Motion for a Preliminary Injunction by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 02/01/2019)

1 Proposed Order

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Feb. 1, 2019

Feb. 1, 2019

PACER
63

Notice of Filing Sealing Motion LCvR5(C) by OutServe-SLDN, Inc., Richard Roe, Victor Voe re 62 MOTION to Seal Exhibits A & B to Plaintiffs' Opposition to the Motion to Dismiss and Reply in Support of their Motion for a Preliminary Injunction (Sommer, Andrew) (Entered: 02/01/2019)

Feb. 1, 2019

Feb. 1, 2019

PACER
64

Sealed Attachment/Exhibit(s) re 62 MOTION to Seal Exhibits A & B to Plaintiffs' Opposition to the Motion to Dismiss and Reply in Support of their Motion for a Preliminary Injunction. (Attachments: # 1 Exhibit B)(Sommer, Andrew) (Entered: 02/01/2019)

Feb. 1, 2019

Feb. 1, 2019

PACER
65

Memorandum in Support re 62 MOTION to Seal Exhibits A & B to Plaintiffs' Opposition to the Motion to Dismiss and Reply in Support of their Motion for a Preliminary Injunction filed by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 02/01/2019)

Feb. 1, 2019

Feb. 1, 2019

PACER
66

CERTIFICATE of Service as to Sealed Exhibits A & B by Andrew Ryan Sommer on behalf of OutServe-SLDN, Inc., Richard Roe, Victor Voe (Sommer, Andrew) (Entered: 02/01/2019)

Feb. 1, 2019

Feb. 1, 2019

PACER
67

NOTICE by James N. Mattis, United States Department of Defense, Heather A. Wilson FILING OF REDACTED ADMINISTRATIVE RECORD (Attachments: # 1 Exhibit AR1, # 2 Exhibit AR2, # 3 Exhibit AR3, # 4 Exhibit AR4)(McCotter, R.) (Entered: 02/01/2019)

1 Exhibit AR1

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2 Exhibit AR2

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3 Exhibit AR3

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4 Exhibit AR4

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Feb. 1, 2019

Feb. 1, 2019

PACER
68

NOTICE of Appearance by Laura Joy Cooley on behalf of OutServe-SLDN, Inc., Richard Roe, Victor Voe (Cooley, Laura) (Entered: 02/01/2019)

Feb. 1, 2019

Feb. 1, 2019

PACER
69

ORDER granting 62 Motion to Seal Exhibits A & B to Plaintiffs' Opposition to the Motion to Dismiss and Reply in Support of their Motion for a Preliminary Injunction. Signed by District Judge Leonie M. Brinkema on 2/4/2019. (see Order for details) (dest, ) (Entered: 02/04/2019)

Feb. 4, 2019

Feb. 4, 2019

PACER
70

REPLY to Response to Motion re 49 MOTION to Dismiss for Failure to State a Claim, 48 MOTION to Dismiss for Lack of Jurisdiction filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 02/08/2019)

Feb. 8, 2019

Feb. 8, 2019

PACER
71

Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing held on 2/15/2019. Appearances of counsel. Motions are argued. Pltfs' 33 MOTION for Preliminary Injunction is GRANTED IN PART AND DENIED IN PART. Defts' 48 MOTION to Dismiss for Lack of Jurisdiction and 49 MOTION to Dismiss for Failure to State a Claim are DENIED. (memorandum opinion and order to follow) (Court Reporter A. Thomson.)(yguy) (Entered: 02/15/2019)

Feb. 15, 2019

Feb. 15, 2019

PACER
72

MEMORANDUM OPINION: Accordingly, plaintiffs' motion for a preliminary injunction will be granted in part and denied in part, and defendants' motion to dismiss denied, by an appropriate Order to be issued with thisMemorandum Opinion. Signed by District Judge Leonie M. Brinkema on 2/15/19. (yguy) (Entered: 02/15/2019)

Feb. 15, 2019

Feb. 15, 2019

RECAP
73

ORDER: For the reasons stated in the accompanying Memorandum Opinion, defendants' Motion to Dismiss [Dkt. Nos. 48-49] is DENIED, plaintiffs' Motion for a Preliminary Injunction [Dkt. No. 33] is GRANTED IN PART and DENIED IN PART, and it is hereby ORDERED, ADJUDGED, and DECREED that defendants be and are ENJOINED from separating or discharging from military service Richard Roe, Victor Voe, and any other similarly situated active-duty member of the Air Force because they are classified as ineligible for worldwide deployment or deployment to the United States Central Command ("CENTCOM" ) area due to their HIV-positive status. Signed by District Judge Leonie M. Brinkema on 2/15/19. (yguy) (Entered: 02/15/2019)

Feb. 15, 2019

Feb. 15, 2019

PACER
74

MOTION to Amend/Correct Preliminary Injunction by OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 02/15/2019)

Feb. 15, 2019

Feb. 15, 2019

PACER
75

Memorandum in Support re 74 MOTION to Amend/Correct Preliminary Injunction filed by OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 02/15/2019)

1 Proposed Order

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Feb. 15, 2019

Feb. 15, 2019

PACER
76

NOTICE by James N. Mattis, United States Department of Defense, Heather A. Wilson FORTHCOMING RESPONSE (McCotter, R.) (Entered: 02/15/2019)

Feb. 15, 2019

Feb. 15, 2019

PACER
77

Memorandum in Opposition re 74 MOTION to Amend/Correct Preliminary Injunction filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 02/19/2019)

Feb. 19, 2019

Feb. 19, 2019

PACER
78

ORDERED that OutServe's Motion to Amend Preliminary Injunction [Dkt. No. 74] be and is DENIED WITHOUT PREJUDICE. (see order for details). Signed by District Judge Leonie M. Brinkema on 2/19/19. (yguy) (Entered: 02/19/2019)

Feb. 19, 2019

Feb. 19, 2019

PACER
79

TRANSCRIPT of proceedings held on 2/15/2019, before Judge Leonie M. Brinkema, Court Reporter Anneliese Thomson, Telephone number 703-299-8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 3/25/2019. Redacted Transcript Deadline set for 4/23/2019. Release of Transcript Restriction set for 5/22/2019.(thomson, anneliese) (Entered: 02/21/2019)

Feb. 21, 2019

Feb. 21, 2019

PACER
80

NOTICE by James N. Mattis, United States Department of Defense, Heather A. Wilson FILING OF SUPPLEMENTAL ADMINISTRATIVE RECORD (McCotter, R.) (Entered: 03/01/2019)

March 1, 2019

March 1, 2019

PACER
81

MOTION TO FILE UNDER SEAL by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 03/01/2019)

1 Proposed Order

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March 1, 2019

March 1, 2019

PACER
82

Memorandum in Support re 81 MOTION TO FILE UNDER SEAL filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Exhibit Declaration)(McCotter, R.) (Entered: 03/01/2019)

1 Exhibit Declaration

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March 1, 2019

March 1, 2019

PACER
83

Notice of Under Seal Filing LCvR5 (B) by James N. Mattis, United States Department of Defense, Heather A. Wilson (McCotter, R.) (Entered: 03/01/2019)

March 1, 2019

March 1, 2019

PACER
84

Sealed Document SUPPLEMENTAL ADMINISTRATIVE RECORD. (McCotter, R.) (Entered: 03/01/2019)

March 1, 2019

March 1, 2019

PACER
85

ORDER granting 81 MOTION TO FILE UNDER SEAL SUPPLEMENTAL ADMINISTRATIVE RECORD. Signed by District Judge Leonie M. Brinkema on 3/1/2019. (See order for further details). (acha, ) (Entered: 03/01/2019)

March 1, 2019

March 1, 2019

PACER
86

NOTICE by James N. Mattis, United States Department of Defense, Heather A. Wilson re 80 NOTICE FILING OF REDACTED SUPPLEMENTAL ADMINISTRATIVE RECORD (McCotter, R.) (Entered: 03/06/2019)

March 6, 2019

March 6, 2019

PACER
87

Consent MOTION for Extension of Time to File Answer by James N. Mattis, United States Department of Defense, Heather A. Wilson. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 03/06/2019)

1 Proposed Order

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March 6, 2019

March 6, 2019

PACER
88

Memorandum in Support re 87 Consent MOTION for Extension of Time to File Answer filed by James N. Mattis, United States Department of Defense, Heather A. Wilson. (McCotter, R.) (Entered: 03/06/2019)

March 6, 2019

March 6, 2019

PACER
89

ORDER granting 87 Motion for Extension of Time to Answer. Defendants may file and Answer to Plaintiffs' Complaint no later than March 8, 2019. Signed by District Judge Leonie M. Brinkema on 3/7/2019. (dvanm, ) (Entered: 03/07/2019)

March 7, 2019

March 7, 2019

PACER
90

ANSWER to Complaint by James N. Mattis, United States Department of Defense, Heather A. Wilson.(McCotter, R.) (Entered: 03/08/2019)

March 8, 2019

March 8, 2019

PACER
91

Joint MOTION to Amend/Correct the Scheduling Order for the Limited Purpose of Taking Several Depositions Out of Time by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 03/15/2019)

March 15, 2019

March 15, 2019

PACER
92

Memorandum in Support re 91 Joint MOTION to Amend/Correct the Scheduling Order for the Limited Purpose of Taking Several Depositions Out of Time filed by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 03/15/2019)

1 Proposed Order

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March 15, 2019

March 15, 2019

PACER
93

ORDER granting 91 Joint MOTION to Amend/Correct the Scheduling Order for the Limited Purpose of Taking Several Depositions Out of Time by OutServe-SLDN, Inc., Signed by Magistrate Judge Ivan D. Davis on 3/15/2019. (See order for further details).(acha, ) (Entered: 03/15/2019)

March 15, 2019

March 15, 2019

PACER
94

NOTICE of Appearance by John Webster Hunter Harding on behalf of OutServe-SLDN, Inc., Richard Roe, Victor Voe (Harding, John) (Entered: 03/20/2019)

March 20, 2019

March 20, 2019

PACER
95

MOTION to Compel Documents and Information Withheld on the Basis of Deliberative Process Privilege by OutServe-SLDN, Inc., Richard Roe, Victor Voe. (Sommer, Andrew) (Entered: 03/22/2019)

March 22, 2019

March 22, 2019

PACER

Case Details

State / Territory: Virginia

Case Type(s):

Equal Employment

Key Dates

Filing Date: Dec. 19, 2018

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

HIV-positive members of the US Air Force (under pseudonyms Richard Roe and Victor Voe) who were separated from service solely because of their HIV-positive status

Plaintiff Type(s):

Non-profit NON-religious organization

Private Plaintiff

Attorney Organizations:

Lambda Legal

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

United States Department of Defense, Federal

Defendant Type(s):

Jurisdiction-wide

Case Details

Causes of Action:

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

Declaratory Judgment Act, 28 U.S.C. § 2201

Constitutional Clause(s):

Due Process

Equal Protection

Availably Documents:

Trial Court Docket

Complaint (any)

Injunctive (or Injunctive-like) Relief

Any published opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Preliminary injunction / Temp. restraining order

Source of Relief:

Litigation

Order Duration: 2017 - None

Content of Injunction:

Preliminary relief granted

Issues

General:

Classification / placement

Discharge & termination plans

Disparate Treatment

Pattern or Practice

Discrimination-area:

Discharge / Constructive Discharge / Layoff

Medical/Mental Health:

HIV/AIDS

Type of Facility:

Government-run