Case: Harrison v. Spencer

1:18-cv-00641 | U.S. District Court for the Eastern District of Virginia

Filed Date: May 30, 2018

Case Ongoing

Clearinghouse coding complete

Case Summary

This is a case about the legality of the U.S. military’s policy prohibiting the enlistment or promotion of people with HIV. On May 30, 2018, an enlisted service member and attorney, along with the Modern Military Association of America (formerly OutServe-SLDN), filed this lawsuit in the United States District Court for the Eastern District of Virginia, where it was assigned to Judge Leonie M. Brinkema. Represented by Lambda Legal, OutServe-SLDN and private counsel, the plaintiff sued the Secret…

This is a case about the legality of the U.S. military’s policy prohibiting the enlistment or promotion of people with HIV. On May 30, 2018, an enlisted service member and attorney, along with the Modern Military Association of America (formerly OutServe-SLDN), filed this lawsuit in the United States District Court for the Eastern District of Virginia, where it was assigned to Judge Leonie M. Brinkema. Represented by Lambda Legal, OutServe-SLDN and private counsel, the plaintiff sued the Secretary of Defense under the Fifth Amendment Due Process Clause. The plaintiff alleged that he had been denied a commission as an officer because he was HIV positive and requested declaratory relief, attorneys’ fees, and an injunction directing the defendants to commission him as an officer and refrain from discriminating against other HIV positive individuals in the future.

In the complaint, the plaintiff alleged that he was denied a commission as Judge Advocate General officer due to his HIV status as a result of Army Regulation 600-110, which prohibits people with HIV from entering the Army or Reserves. Additionally, in February of 2018, the Department of Defense implemented a new policy that required non-deployable service members, a category which includes people with HIV, be discharged from service after 12 months, in effect laying off all HIV positive personnel.

In the following months since the plaintiff filed this case, the same organizations filed companion cases in the District of Columbia (Voe v. Mattis, D.D.C. 1:18-cv-1251), District of Maryland (Deese v. Esper, D. Md., 1:18-cv-2669) and the Eastern District of Virginia (Roe v. U.S. Department of Defense (E.D.Va. 1:18-cv-1565)).

On July 19, 2018, the plaintiff moved for a preliminary injunction to suspend the Department of Defense’s policy of discharging HIV positive personnel. The defendants moved to dismiss on August 16, 2018. At a hearing on September 14, 2018, Judge Brinkema denied all these motions from the bench and the case proceeded. However, in one of the companion cases, Roe v. Department of Defense, a similar motion for a preliminary injunction was granted and upheld by the United States Court of Appeals for the Fourth Circuit. Roe v. Department of Defense, 947 F.3d 207 (2020). However, that order pertained to members of the Air Force and the Roe plaintiffs brought that claim under APA. It did not affect the proceedings in this case.

Litigation over discovery issues continued for close to a year, eventually ending in an opinion from Judge Brinkema on May 22, 2019 concerning the scope of deliberative privileged invoked by the defendants. Harrison v. Shanahan, 2019 WL 2216474.

The defendants again moved to dismiss the case, challenging the standing of OutServe, the LGBT service member’s non-profit. On March 27, 2020 Judge Brinkema denied that motion, as well as an identical motion in Roe v. Spencer. In that order, the judge found that the Department of Defense’s policies regarding HIV caused OutServe to reallocate its resources away from other important projects to support HIV positive service members.

In the summer of 2020, both parties moved for summary judgment. Following attempts to engage with defendants over the next year, plaintiffs provided a notice to the court on December 23, 2021 indicating that the parties were unable to reach a settlement and resolution by the court would be required. Plaintiffs’ counsel was willing to discuss the possibility of trial, if required, in the first half of 2022. Additionally, plaintiffs’ notice informed the court that the same day the court heard oral argument on summary judgment in Harrison and Roe, the District of Maryland stayed the Deese case pending this court’s summary judgment decision, but the parties in the Deese court had since proposed to lift the stay for limited discovery in January 2022. 

On April 6, 2022, the court granted plaintiffs’ motion for summary judgment and denied defendants’ cross-motion for summary judgment. 2022 WL 1183767. The opinion was originally filed under seal, but the court unsealed it two weeks later because neither of the parties proposed any redactions. At the beginning of the opinion, the court cited Roe v. Austin (formerly Roe v. Spencer), in which the Fourth Circuit had rejected defendants’ explanations for their categorical bar to the deployment of HIV-positive service members as either “unsupported by the record or contradicted by scientific evidence.” 947 F.3d 207 (4th Cir. 2020). Adopting the Fourth Circuit’s position in Roe here, Judge Brinkema held that defendant’s policies prohibiting the commissioning and retention of HIV-positive service members who are asymptomatic and have undetectable viral loads were arbitrary and capricious under the Administrative Procedure Act. The court also found the policies irrational in violation of the Fifth Amendment Due Process Clause’s prohibition against the denial of equal protection. 

As a remedy, the court issued a permanent injunction enjoining defendants from denying the application of plaintiff and any other asymptomatic HIV-positive service member with an undetectable viral load to commission as officers because they were classified as ineligible for deployment due to their HIV-positive. The court also ordered the Secretary of the Army to rescind her decision denying plaintiff’s application to commission in the Judge Advocate General Corps and reevaluate that application in a manner consistent with the injunctive relief awarded to plaintiffs. The parties were ordered to meet and confer to determine how to resolve the amount of attorneys’ fees for plaintiffs’ counsel and to provide a joint status report on this issue within thirty days. 

This case is ongoing. 

Summary Authors

Jonah Hudson-Erdman (9/28/2020)

Zoe Goldstein (4/30/2022)

Related Cases

Roe v. U.S. Dep't of Defense, Eastern District of Virginia (2018)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/7599019/parties/harrison-v-spencer/


Judge(s)

Brinkema, Leonie M. (Virginia)

Davis, Ivan D. (Virginia)

Attorneys(s) for Plaintiff

Bobroff, Rochelle (District of Columbia)

Cooley, Laura Joy (District of Columbia)

Cooper, Bryce A. (Illinois)

Eaton, Geoffrey Paul (District of Columbia)

Frelinghuysen, Cyrus T. (District of Columbia)

Harding, John Webster Hunter (District of Columbia)

Perkowski, Peter (District of Columbia)

Pinggera, Anthony C (California)

Judge(s)

Brinkema, Leonie M. (Virginia)

Davis, Ivan D. (Virginia)

Attorneys(s) for Plaintiff

Bobroff, Rochelle (District of Columbia)

Cooley, Laura Joy (District of Columbia)

Cooper, Bryce A. (Illinois)

Eaton, Geoffrey Paul (District of Columbia)

Frelinghuysen, Cyrus T. (District of Columbia)

Harding, John Webster Hunter (District of Columbia)

Perkowski, Peter (District of Columbia)

Pinggera, Anthony C (California)

Schoettes, Scott A. (Illinois)

Sommer, Andrew Ryan (Virginia)

Stichman, Barton Frank (District of Columbia)

Attorneys(s) for Defendant

Barghaan, Dennis C. (Virginia)

McCotter, R. Trent (Virginia)

Documents in the Clearinghouse

Document

1:18-cv-00641

Docket [PACER]

Sept. 9, 2020

Sept. 9, 2020

Docket
1

Complaint for Declaratory and Injunctive Relief

Harrison v. Mattis

May 30, 2018

May 30, 2018

Complaint
250

1:18-cv-00641

1:18-cv-01565

Memorandum Opinion

449 F.Supp.3d 594

March 27, 2020

March 27, 2020

Order/Opinion
307

1:18-cv-00641

Memorandum Opinion

2022 WL 1183767

April 6, 2022

April 6, 2022

Order/Opinion

Resources

Docket

See docket on RECAP: https://www.courtlistener.com/docket/7599019/harrison-v-spencer/

Last updated June 3, 2022, 3:19 a.m.

ECF Number Description Date Link Date / Link
1

COMPLAINT against Mark Esper, James N. Mattis, U.S. Department of Defense ( Filing fee $ 400, receipt number 0422-6106987.), filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Civil Cover Sheet)(dvanm, ) (Entered: 05/30/2018)

1 Civil Cover Sheet

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May 30, 2018

May 30, 2018

RECAP
2

Financial Interest Disclosure Statement (Local Rule 7.1) by OutServe-SLDN, Inc. (dvanm, ) (Entered: 05/30/2018)

May 30, 2018

May 30, 2018

PACER
3

NOTICE of Appearance by John Webster Hunter Harding on behalf of Nick Harrison, OutServe-SLDN, Inc. (Harding, John) (Entered: 05/30/2018)

May 30, 2018

May 30, 2018

PACER
4

NOTICE of Appearance by Andrew Ryan Sommer on behalf of Nick Harrison, OutServe-SLDN, Inc. (Sommer, Andrew) (Entered: 05/30/2018)

May 30, 2018

May 30, 2018

PACER
5

Motion to appear Pro Hac Vice by Cyrus T. Frelinghuysen and Certification of Local Counsel John W.H. Harding Filing fee $ 75, receipt number 0422-6108571. by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 05/30/2018)

May 30, 2018

May 30, 2018

PACER
6

Motion to appear Pro Hac Vice by Peter E. Perkowski and Certification of Local Counsel John W. H. Harding Filing fee $ 75, receipt number 0422-6108600. by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 05/30/2018)

May 30, 2018

May 30, 2018

PACER
7

Motion to appear Pro Hac Vice by Scott Schoettes and Certification of Local Counsel John W.H. Harding Filing fee $ 75, receipt number 0422-6108625. by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 05/30/2018)

May 30, 2018

May 30, 2018

PACER

Notice of Correction re 5 Motion to appear Pro Hac Vice by Cyrus T. Frelinghuysen and Certification of Local Counsel John W.H. Harding Filing fee $ 75, receipt number 0422-6108571., 7 Motion to appear Pro Hac Vice by Scott Schoettes and Certification of Local Counsel John W.H. Harding Filing fee $ 75, receipt number 0422-6108625., 6 Motion to appear Pro Hac Vice by Peter E. Perkowski and Certification of Local Counsel John W. H. Harding Filing fee $ 75, receipt number 0422-6108600. The filing user has been notified to have the attorney whose signature block appears on the document refile the document. (dvanm, )

May 31, 2018

May 31, 2018

PACER
8

Motion to appear Pro Hac Vice by Cyrus T. Frelinghuysen and Certification of Local Counsel John W.H. Harding Filing fee $ 75, receipt number 0422-6109023. by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 05/31/2018)

May 31, 2018

May 31, 2018

PACER
9

Motion to appear Pro Hac Vice by Peter E. Perkowski and Certification of Local Counsel John W.H. Harding Filing fee $ 75, receipt number 0422-6109031. by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 05/31/2018)

May 31, 2018

May 31, 2018

PACER
10

Motion to appear Pro Hac Vice by Scott Schoettes and Certification of Local Counsel John W.H. Harding Filing fee $ 75, receipt number 0422-6109037. by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 05/31/2018)

May 31, 2018

May 31, 2018

PACER
11

ORDER granting 8 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 06/04/2018. (dvanm, ) (Entered: 06/04/2018)

June 4, 2018

June 4, 2018

PACER
12

ORDER granting 9 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 06/04/2018. (dvanm, ) (Entered: 06/04/2018)

June 4, 2018

June 4, 2018

PACER
13

ORDER granting 10 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 06/04/2018. (dvanm, ) (Entered: 06/04/2018)

June 4, 2018

June 4, 2018

PACER
14

Motion to appear Pro Hac Vice by Anthony Pinggera and Certification of Local Counsel John W.H. Harding Filing fee $ 75, receipt number 0422-6119231. by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 06/06/2018)

June 6, 2018

June 6, 2018

PACER
15

ORDER granting 14 Motion for Pro hac vice by Anthony Pinggera. Signed by District Judge Leonie M. Brinkema on 6/8/18. (gwalk, ) (Entered: 06/08/2018)

June 8, 2018

June 8, 2018

PACER
16

Proposed Summons to US Attorney for Eastern District of Virginia by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 06/08/2018)

June 8, 2018

June 8, 2018

PACER
17

Proposed Summons for Attorney General of the United States of America by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 06/08/2018)

June 8, 2018

June 8, 2018

PACER
18

Summons Issued as to All Defendants, U.S. Attorney and U.S. Attorney General NOTICE TO ATTORNEY: Print out two electronically issued summons and one copy of the attachments for each defendant to be served with the complaint. (Attachments: # 1 Notice to Attorney)(gwalk, ) (Main Document 18 replaced on 6/8/2018) (gwalk, ). (Entered: 06/08/2018)

June 8, 2018

June 8, 2018

PACER
19

Summons Issued as to U.S. Attorney General NOTICE TO ATTORNEY: Print out two electronically issued summons and one copy of the attachments for each defendant to be served with the complaint. (gwalk, ) (Main Document 19 replaced on 6/8/2018) (gwalk, ). (Entered: 06/08/2018)

June 8, 2018

June 8, 2018

PACER
20

SUMMONS Returned Executed as to U.S. Department of Defense. (klau, ) (Entered: 06/15/2018)

June 15, 2018

June 15, 2018

PACER
21

SUMMONS Returned Executed as to James N. Mattis. (klau, ) (Entered: 06/15/2018)

June 15, 2018

June 15, 2018

PACER
22

SUMMONS Returned Executed as to U.S. Attorney served on 6/12/2018, answer due 8/13/2018.(klau, ) (Entered: 06/15/2018)

June 15, 2018

June 15, 2018

PACER
23

SUMMONS Returned Executed as to Jeff Sessions. (dvanm, ) (Entered: 06/18/2018)

June 18, 2018

June 18, 2018

PACER
24

SUMMONS Returned Executed as to Mark Esper by Nick Harrison, OutServe-SLDN, Inc. (dvanm, ) (Entered: 06/22/2018)

June 22, 2018

June 22, 2018

PACER
25

MOTION for Preliminary Injunction by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 07/19/2018)

July 19, 2018

July 19, 2018

PACER
26

Memorandum in Support re 25 MOTION for Preliminary Injunction filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Sommer, Andrew) (Entered: 07/19/2018)

1 Exhibit A

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2 Exhibit B

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3 Exhibit C

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4 Exhibit D

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5 Exhibit E

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6 Exhibit F

View on PACER

7 Exhibit G

View on PACER

July 19, 2018

July 19, 2018

RECAP
27

Notice of Under Seal Filing LCvR5 (B) by Nick Harrison, OutServe-SLDN, Inc. (Sommer, Andrew) (Entered: 07/19/2018)

July 19, 2018

July 19, 2018

PACER
28

MOTION to Seal by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 07/19/2018)

July 19, 2018

July 19, 2018

PACER
29

Memorandum in Support re 28 MOTION to Seal filed by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 07/19/2018)

July 19, 2018

July 19, 2018

PACER
30

Sealed Attachment/Exhibit(s) re 26 Memorandum in Support, 27 Notice of Under Seal Filing LCvR5 (B), 28 MOTION to Seal, 29 Memorandum in Support. (Sommer, Andrew) (Entered: 07/19/2018)

July 19, 2018

July 19, 2018

PACER
31

Sealed Attachment/Exhibit(s) re 26 Memorandum in Support, 27 Notice of Under Seal Filing LCvR5 (B), 28 MOTION to Seal, 29 Memorandum in Support. (Sommer, Andrew) (Entered: 07/19/2018)

July 19, 2018

July 19, 2018

PACER
32

ORDER granting 28 Motion to Seal. Signed by District Judge Leonie M. Brinkema on 07/19/2018. (dvanm, ) (Entered: 07/19/2018)

July 19, 2018

July 19, 2018

PACER

Notice of Correction re 25 MOTION for Preliminary Injunction . The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument. (dvanm, )

July 19, 2018

July 19, 2018

PACER
33

ORDER - For good cause shown, it is hereby: ORDERED that Defendants shall file their opposition to Plaintiffs' Motion for Preliminary Injunction by August 16, 2018; it is further ORDERED that Plaintiffs shall file their reply in support of their Motion for Preliminary Injunction by August 29, 2018; it is further ORDERED that Plaintiffs shall set their Motion for Preliminary Injunction for hearing on September 14, 2018. Signed by District Judge Leonie M. Brinkema on 07/24/2018. (dvanm, ) (Entered: 07/24/2018)

July 24, 2018

July 24, 2018

PACER
34

Notice of Hearing Date re 25 MOTION for Preliminary Injunction (Sommer, Andrew) (Entered: 07/24/2018)

July 24, 2018

July 24, 2018

PACER
35

NOTICE of Appearance by R. Trent McCotter on behalf of Mark Esper, James N. Mattis, U.S. Department of Defense (McCotter, R.) (Entered: 07/24/2018)

July 24, 2018

July 24, 2018

PACER

Set Deadlines as to 25 MOTION for Preliminary Injunction . Motion Hearing set for 9/14/2018 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (klau, )

July 25, 2018

July 25, 2018

PACER
36

MOTION TO ALTER BRIEFING SCHEDULE by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 07/31/2018)

July 31, 2018

July 31, 2018

PACER
37

Notice of Hearing Date AUGUST 10, 2018 re 36 MOTION TO ALTER BRIEFING SCHEDULE (McCotter, R.) (Entered: 07/31/2018)

July 31, 2018

July 31, 2018

PACER

Set Deadlines as to 36 MOTION TO ALTER BRIEFING SCHEDULE . Motion Hearing set for 8/10/2018 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, )

Aug. 1, 2018

Aug. 1, 2018

PACER
38

Opposition to Motion to Alter Briefing Schedule filed by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 08/03/2018)

Aug. 3, 2018

Aug. 3, 2018

PACER
39

ORDER granting in part and denying in part 36 Motion to Alter Briefing Schedule. ORDERED that defendants must file a combined brief in support of their Motion to Dismiss and opposition to plaintiffs' Motion for Preliminary Injunction, which may not exceed 30 pages, by 8/16/2018; that plaintiffs must file a combined brief in opposition to defendants' Motion to Dismiss and reply in support of their Motion for Preliminary Injunction, which may not exceed 30 pages, by 8/30/2018; that defendants must file their reply in support of their Motion to Dismiss, which may not exceed 20 pages, by 9/7/2018. Signed by District Judge Leonie M. Brinkema on 8/6/2018. (rban, ) (Entered: 08/06/2018)

Aug. 6, 2018

Aug. 6, 2018

PACER
40

Memorandum in Opposition re 25 MOTION for Preliminary Injunction filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Exhibit Lute Declaration, # 2 Exhibit Soper Declaration)(McCotter, R.) (Entered: 08/16/2018)

1 Exhibit Lute Declaration

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2 Exhibit Soper Declaration

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Aug. 16, 2018

Aug. 16, 2018

RECAP
41

MOTION to Dismiss for Lack of Jurisdiction by Mark Esper, James N. Mattis, U.S. Department of Defense. (McCotter, R.) (Entered: 08/16/2018)

Aug. 16, 2018

Aug. 16, 2018

PACER
42

MOTION to Dismiss for Failure to State a Claim by Mark Esper, James N. Mattis, U.S. Department of Defense. (McCotter, R.) (Entered: 08/16/2018)

Aug. 16, 2018

Aug. 16, 2018

PACER
43

Memorandum in Support re 41 MOTION to Dismiss for Lack of Jurisdiction, 42 MOTION to Dismiss for Failure to State a Claim filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Exhibit Lute Declaration, # 2 Exhibit Soper Declaration)(McCotter, R.) (Entered: 08/16/2018)

Aug. 16, 2018

Aug. 16, 2018

PACER
44

Notice of Hearing Date set for September 14, 2018 re 41 MOTION to Dismiss for Lack of Jurisdiction, 42 MOTION to Dismiss for Failure to State a Claim (McCotter, R.) (Entered: 08/16/2018)

Aug. 16, 2018

Aug. 16, 2018

PACER
45

MOTION to Seal Soper Declaration by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 08/16/2018)

Aug. 16, 2018

Aug. 16, 2018

PACER
46

Notice of Filing Sealing Motion LCvR5(C) by Mark Esper, James N. Mattis, U.S. Department of Defense re 45 MOTION to Seal Soper Declaration (McCotter, R.) (Entered: 08/16/2018)

Aug. 16, 2018

Aug. 16, 2018

PACER
47

Memorandum in Support re 45 MOTION to Seal Soper Declaration filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (McCotter, R.) (Entered: 08/16/2018)

Aug. 16, 2018

Aug. 16, 2018

PACER
48

Sealed Soper Declaration. (McCotter, R.) (Entered: 08/16/2018)

Aug. 16, 2018

Aug. 16, 2018

PACER

Set Deadlines as to 42 MOTION to Dismiss for Failure to State a Claim, 41 MOTION to Dismiss for Lack of Jurisdiction . Motion Hearing set for 9/14/2018 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, )

Aug. 17, 2018

Aug. 17, 2018

PACER
49

ORDER granting 45 Motion to Seal to the extent that the entire, un-redacted declaration may be filed and maintained under seal; however, it is alsoORDERED that a copy of this declaration redacted consistent with this Order be filed promptly; and it is further ORDERED that any further requests to file a pleading under seal must include a redacted copy of the pleading which can be filed in the public docket. Signed by District Judge Leonie M. Brinkema on 08/17/2018. (dvanm, ) (Entered: 08/17/2018)

Aug. 17, 2018

Aug. 17, 2018

PACER
50

Declaration Martha Soper (REDACTED) by Mark Esper, James N. Mattis, U.S. Department of Defense. (McCotter, R.) (Entered: 08/17/2018)

Aug. 17, 2018

Aug. 17, 2018

PACER
51

Opposition to 41 MOTION to Dismiss for Lack of Jurisdiction, 42 MOTION to Dismiss for Failure to State a Claim filed by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 08/30/2018)

Aug. 30, 2018

Aug. 30, 2018

PACER
52

Reply to Motion re 25 MOTION for Preliminary Injunction filed by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 08/30/2018)

Aug. 30, 2018

Aug. 30, 2018

PACER
53

REPLY to Response to Motion re 41 MOTION to Dismiss for Lack of Jurisdiction, 42 MOTION to Dismiss for Failure to State a Claim filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Barghaan, Dennis) (Entered: 09/07/2018)

Sept. 7, 2018

Sept. 7, 2018

PACER
54

NOTICE by Nick Harrison, OutServe-SLDN, Inc. re: Potential Conflict (Sommer, Andrew) (Entered: 09/10/2018)

Sept. 10, 2018

Sept. 10, 2018

PACER
55

NOTICE by Mark Esper, James N. Mattis, U.S. Department of Defense (McCotter, R.) (Entered: 09/11/2018)

Sept. 11, 2018

Sept. 11, 2018

PACER
56

MOTION for Leave to File a Sur-Reply (Unopposed) by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 09/12/2018)

Sept. 12, 2018

Sept. 12, 2018

PACER
57

Memorandum in Support re 56 MOTION for Leave to File a Sur-Reply (Unopposed) filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Exhibit 1)(Sommer, Andrew) (Entered: 09/12/2018)

Sept. 12, 2018

Sept. 12, 2018

PACER
58

Notice of Hearing Date set for 9/21/2018 re 56 MOTION for Leave to File a Sur-Reply (Unopposed) (Sommer, Andrew) (Entered: 09/12/2018)

Sept. 12, 2018

Sept. 12, 2018

PACER

Set Deadlines as to 56 MOTION for Leave to File a Sur-Reply (Unopposed). Motion Hearing set for 9/21/2018 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (klau, )

Sept. 13, 2018

Sept. 13, 2018

PACER
59

Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing held on 9/14/2018. Appearances of counsel. Pltfs 25 MOTION for Preliminary Injunction and defts 41 MOTION to Dismiss for Lack of Jurisdiction and 42 MOTION to Dismiss for Failure to State a Claim are argued and DENIED. (order to follow) (Court Reporter A. Thomson.)(yguy) (Entered: 09/14/2018)

Sept. 14, 2018

Sept. 14, 2018

PACER
60

ORDER: For the reasons stated in open court, it is hereby ORDERED that plaintiffs' Motion for Preliminary Injunction [Dkt. No. 25], defendants'Motion to Dismiss for lack of subject matter jurisdiction [Dkt. No. 41], and defendants' Motion to Dismiss for failure to state a claim [Dkt. No. 42] be and are DENIED WITHOUT PREJUDICE.Signed by District Judge Leonie M. Brinkema on 9/14/18. (yguy) (Entered: 09/14/2018)

Sept. 14, 2018

Sept. 14, 2018

PACER
61

ORDER denying as moot 56 Motion for Leave to File a Sur-Reply. Signed by District Judge Leonie M. Brinkema on 09/14/2018. (dvanm, ) (Entered: 09/14/2018)

Sept. 14, 2018

Sept. 14, 2018

PACER
62

ANSWER to 1 Complaint by Mark Esper, James N. Mattis, U.S. Department of Defense.(McCotter, R.) (Entered: 09/28/2018)

Sept. 28, 2018

Sept. 28, 2018

PACER
63

SCHEDULING ORDER: Initial Pretrial Conference set for 10/24/2018 at 11:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. Discovery due by 2/15/2019. Final Pretrial Conference set for 2/21/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. Signed by District Judge Leonie M. Brinkema on 10/3/18. (Attachments: # 1 Mag.Consent, # 2 Pretrial Notice)(yguy) (Entered: 10/04/2018)

Oct. 3, 2018

Oct. 3, 2018

PACER
64

SCHEDULING ORDER(CORRECTED): Initial Pretrial Conference set for 10/24/2018 at 11:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. Discovery due by 2/15/2019. Final Pretrial Conference set for 2/21/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. Signed by District Judge Leonie M. Brinkema on 10/4/18. (Attachments: # 1 Mag.Consent, # 2 Pretrial Notice)(yguy) (Entered: 10/04/2018)

Oct. 4, 2018

Oct. 4, 2018

PACER
65

Joint MOTION for Extension of Deadline of Proposed Discovery Plan by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order Ex. A)(Sommer, Andrew) (Entered: 10/16/2018)

Oct. 16, 2018

Oct. 16, 2018

PACER
66

ORDER granting 65 Joint MOTION for Extension of Deadline of Proposed Discovery Plan; deadline is extended by 2 days to October 19, 2018. Signed by Magistrate Judge Ivan D. Davis on 10/17/2018. (aott) (Entered: 10/17/2018)

Oct. 17, 2018

Oct. 17, 2018

PACER
67

Joint Proposed Discovery Plan by Nick Harrison, OutServe-SLDN, Inc..(Sommer, Andrew) (Entered: 10/19/2018)

Oct. 19, 2018

Oct. 19, 2018

PACER
68

Order Rule 16(b) Scheduling Order. Because the parties' Proposed Joint Discovery Plan 67 adequately addresses the matters that would be discussed during the initial pretrial conference and counsel consent to waiving their appearances at the initial pretrial conference, the initial pretrial conference scheduled for October 24, 2018, pursuant to Rule 16(b) and this Court's October 4, 2018 Order, is cancelled. Upon consideration of the representations made by the parties in their Proposed Joint Discovery Plan, the Court makes the following rulings: The parties' Joint Discovery Plan is approved and shall control discovery to the extent of its application unless further modified by the Court(see order for further details). Signed by Magistrate Judge Ivan D. Davis on 10/22/2018. (lgue, ) (Entered: 10/22/2018)

Oct. 22, 2018

Oct. 22, 2018

PACER
69

MOTION for Protective Order Agreed-Upon Protective Order and Agreed-Upon Electronically-Stored Information Order by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order Ex. A, # 2 Proposed Order Ex. B)(Sommer, Andrew) (Entered: 11/02/2018)

Nov. 2, 2018

Nov. 2, 2018

PACER
70

ORDER granting 69 Motion for ELECTRONICALLY STORED INFORMATION. Signed by Magistrate Judge Ivan D. Davis on 11/6/2018. (dvanm, ) (Entered: 11/06/2018)

Nov. 6, 2018

Nov. 6, 2018

PACER
71

ORDER granting 69 MOTION for Protective Order filed by OutServe-SLDN, Inc., Nick Harrison. Signed by Magistrate Judge Ivan D. Davis on 11/06/2018. (dvanm, ) (Entered: 11/06/2018)

Nov. 6, 2018

Nov. 6, 2018

PACER
72

MOTION to Compel Production of Documents by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 11/20/2018)

Nov. 20, 2018

Nov. 20, 2018

PACER
73

Memorandum in Support re 72 MOTION to Compel Production of Documents filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Sommer, Andrew) (Entered: 11/20/2018)

Nov. 20, 2018

Nov. 20, 2018

PACER
74

Notice of Hearing Date set for November 30, 2018 re 72 MOTION to Compel Production of Documents, 73 Memorandum in Support (Sommer, Andrew) (Entered: 11/20/2018)

Nov. 20, 2018

Nov. 20, 2018

PACER

Set Deadlines as to 72 MOTION to Compel Production of Documents. Motion Hearing set for 11/30/2018 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (clar, )

Nov. 21, 2018

Nov. 21, 2018

PACER

MOTIONS REFERRED to Magistrate Judge: Davis. 72 MOTION to Compel Production of Documents (clar, )

Nov. 21, 2018

Nov. 21, 2018

PACER
75

Consent MOTION to Amend/Correct 68 Order Rule 16(b) Scheduling Order,,, by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 11/21/2018)

Nov. 21, 2018

Nov. 21, 2018

PACER
76

Memorandum in Support re 75 Consent MOTION to Amend/Correct 68 Order Rule 16(b) Scheduling Order,,, filed by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 11/21/2018)

Nov. 21, 2018

Nov. 21, 2018

PACER
77

ORDER granting 75 Motion to Modify the Rule 16(B) Scheduling Order. Signed by Magistrate Judge Ivan D. Davis on 11/26/2018. (see Order for details) (dvanm, ) (Entered: 11/26/2018)

Nov. 26, 2018

Nov. 26, 2018

PACER
78

Memorandum in Opposition re 72 MOTION to Compel Production of Documents filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Exhibit Def Response to Pls 1st RFP, # 2 Exhibit Doe Order, # 3 Exhibit Report to Congress, # 4 Exhibit Transcript of Hearing, # 5 Exhibit Pls 1st RFP)(McCotter, R.) (Entered: 11/28/2018)

Nov. 28, 2018

Nov. 28, 2018

PACER
79

REPLY to Response to Motion re 72 MOTION to Compel Production of Documents filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sommer, Andrew) (Entered: 11/29/2018)

Nov. 29, 2018

Nov. 29, 2018

PACER
80

Minute Entry for proceedings held before Magistrate Judge Ivan D. Davis:Motion Hearing held on 11/30/2018 re 72 MOTION to Compel Production of Documents filed by OutServe-SLDN, Inc., Nick Harrison. Appearance of Counsel for Plaintiff and Defendant. Motion argued and GRANTED in part and DENIED in part. The Court requires the Defendants to produce documents by close of business on 12/28/2018. Order to follow. (Tape #FTR.)(lgue, ) (Entered: 11/30/2018)

Nov. 30, 2018

Nov. 30, 2018

PACER
81

ORDER - FOR REASONS stated from the bench and in accord with specific rulings and instructions thereto, it is hereby ORDERED that Plaintiffs' Motion to Compel Production of Documents 72 is GRANTED in part and DENIED in part. The Defendants are to produce the documents by December 28, 2018, by close of business. Signed by Magistrate Judge Ivan D. Davis on 11/30/2018. (lgue, ) (Entered: 11/30/2018)

Nov. 30, 2018

Nov. 30, 2018

PACER
82

MOTION to Compel Responses to Interrogatories by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 12/14/2018)

Dec. 14, 2018

Dec. 14, 2018

PACER
83

Motion Re: Objections to Magistrate Judge's Ruling or Recommendation re 81 Order on Motion to Compel, by Mark Esper, James N. Mattis, U.S. Department of Defense. (McCotter, R.) (Entered: 12/14/2018)

Dec. 14, 2018

Dec. 14, 2018

PACER
84

Memorandum in Support re 82 MOTION to Compel Responses to Interrogatories filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Sommer, Andrew) (Entered: 12/14/2018)

Dec. 14, 2018

Dec. 14, 2018

PACER
85

Memorandum in Support re 83 Motion Re: Objections to Magistrate Judge's Ruling or Recommendation re 81 Order on Motion to Compel, filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Exhibit Plaintiffs' 1st Interrogatories, # 2 Exhibit Plaintiffs' 1st Requests for Admissions, # 3 Exhibit Plaintiffs' 2nd Request for Production of Documents, # 4 Exhibit Plaintiffs' Notice of 30(b)(6) Deposition, # 5 Exhibit Sept. 14 Transcript, # 6 Exhibit Plaintiffs' 1st Request for Production of Documents, # 7 Exhibit Defendants' Objections to 1st RFP, # 8 Exhibit Nov. 30 Transcript, # 9 Exhibit 2018 Report to Congress, # 10 Exhibit Nov. 28 Plaintiffs' Counsel Letter)(McCotter, R.) (Entered: 12/14/2018)

Dec. 14, 2018

Dec. 14, 2018

PACER
86

Notice of Hearing Date set for December 21, 2018 re 83 Motion Re: Objections to Magistrate Judge's Ruling or Recommendation re 81 Order on Motion to Compel, (McCotter, R.) (Entered: 12/14/2018)

Dec. 14, 2018

Dec. 14, 2018

PACER
87

Notice of Hearing Date set for 12/21/2018 re 82 MOTION to Compel Responses to Interrogatories (Sommer, Andrew) (Entered: 12/14/2018)

Dec. 14, 2018

Dec. 14, 2018

PACER

Set Deadlines as to 83 Motion Re: Objections to Magistrate Judge's Ruling or Recommendation re 81 Order on Motion to Compel, . Motion Hearing set for 12/21/2018 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, )

Dec. 17, 2018

Dec. 17, 2018

PACER

Set Deadlines as to 82 MOTION to Compel Responses to Interrogatories. Motion Hearing set for 12/21/2018 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (clar, )

Dec. 17, 2018

Dec. 17, 2018

PACER

MOTIONS REFERRED to Magistrate Judge: Davis. 82 MOTION to Compel Responses to Interrogatories (clar, )

Dec. 17, 2018

Dec. 17, 2018

PACER
88

Consent MOTION to Modify Rule 16(B) Scheduling Order by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 12/18/2018)

Dec. 18, 2018

Dec. 18, 2018

PACER
89

Memorandum in Support re 88 Consent MOTION to Modify Rule 16(B) Scheduling Order filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Exhibit A: Proposed Order)(Sommer, Andrew) (Entered: 12/18/2018)

Dec. 18, 2018

Dec. 18, 2018

PACER

Case Details

State / Territory: Virginia

Case Type(s):

Equal Employment

Key Dates

Filing Date: May 30, 2018

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

An army reservist who was denied a commission as a Judge Advocate General officer because he was HIV positive and a non-profit organization that provides legal services to LGBT and HIV positive service members.

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

Secretary of Defense (Arlington, Arlington), 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

Ex parte Young (federal or state officials)

Constitutional Clause(s):

Due Process

Due Process: Substantive Due Process

Availably Documents:

Trial Court Docket

Complaint (any)

Any published opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Litigation

Content of Injunction:

Preliminary relief denied

Other requirements regarding hiring, promotion, retention

Issues

General:

Gay/lesbian/transgender

Medical/Mental Health:

HIV/AIDS