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Case Name Harrison v. Spencer EE-VA-0142
Docket / Court 1:18-cv-00641 ( E.D. Va. )
State/Territory Virginia
Case Type(s) Disability Rights-Pub. Accom.
Equal Employment
Attorney Organization Lambda Legal
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 American (formerly OutServe-SLDN), filed this lawsuit in the United ... read more >
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 American (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. Those motions remain pending as of September 9, 2020. The case is ongoing.

Jonah Hudson-Erdman - 09/28/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Due Process: Substantive Due Process
General
Gay/lesbian/transgender
Medical/Mental Health
HIV/AIDS
Plaintiff Type
Non-profit NON-religious organization
Private Plaintiff
Causes of Action Declaratory Judgment Act, 28 U.S.C. § 2201
Ex parte Young (federal or state officials)
Defendant(s) Secretary of Defense
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.
Indexed Lawyer Organizations Lambda Legal
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filed 05/30/2018
Case Ongoing Yes
Case Listing EE-VA-0141 : Roe v. U.S. Dep't of Defense (E.D. Va.)
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Harrison v. Esper (formerly v. Shanahan)
https://www.lambdalegal.org/
Date: Sep. 14, 2018
By: Lambda Legal
[ Detail ] [ External Link ]

Court Docket(s)
E.D. Va.
09/09/2020
1:18-cv-00641
EE-VA-0142-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
E.D. Va.
05/30/2018
Complaint for Declaratory and Injunctive Relief [ECF# 1]
EE-VA-0142-0002.pdf | Detail
E.D. Va.
03/27/2020
Memorandum Opinion [ECF# 250] (449 F.Supp.3d 594)
EE-VA-0142-0001.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Brinkema, Leonie M. (E.D. Va.) show/hide docs
EE-VA-0142-0001 | EE-VA-0142-9000
Davis, Ivan D. Court not on record [Magistrate] show/hide docs
EE-VA-0142-9000
Plaintiff's Lawyers Cooley, Laura Joy (District of Columbia) show/hide docs
EE-VA-0142-9000
Frelinghuysen, Cyrus T. (District of Columbia) show/hide docs
EE-VA-0142-0002
Harding, John Webster Hunter (District of Columbia) show/hide docs
EE-VA-0142-0002 | EE-VA-0142-9000
Perkowski, Peter (District of Columbia) show/hide docs
EE-VA-0142-0002
Pinggera, Anthony C (California) show/hide docs
EE-VA-0142-0002
Schoettes, Scott A. (Illinois) show/hide docs
EE-VA-0142-0002
Sommer, Andrew Ryan (Virginia) show/hide docs
EE-VA-0142-0002 | EE-VA-0142-9000
Defendant's Lawyers Barghaan, Dennis C. (Virginia) show/hide docs
EE-VA-0142-9000
McCotter, R. Trent (Virginia) show/hide docs
EE-VA-0142-9000

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