Harrison v. Austin

Citation597 F.Supp.3d 884
Decision Date06 April 2022
Docket Number1:18-cv-641 (LMB/IDD), 1:18-cv-1565 (LMB/IDD)
Parties Nicholas HARRISON, et al., Plaintiffs, v. Lloyd J. AUSTIN, Secretary of Defense, et al., Defendants. Richard Roe, et al., Plaintiffs, v. Lloyd J. Austin, Secretary of Defense, et al., Defendants.
CourtU.S. District Court — Eastern District of Virginia

597 F.Supp.3d 884

Nicholas HARRISON, et al., Plaintiffs,
Lloyd J. AUSTIN, Secretary of Defense, et al., Defendants.

Richard Roe, et al., Plaintiffs,
Lloyd J. Austin, Secretary of Defense, et al., Defendants.

1:18-cv-641 (LMB/IDD), 1:18-cv-1565 (LMB/IDD)

United States District Court, E.D. Virginia, Alexandria Division.

Signed April 6, 2022

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Andrew Ryan Sommer, Greenberg Traurig LLP, McLean, VA, Gregory Nevins, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Atlanta, GA, John Webster Hunter Harding, Winston & Strawn LLP, Washington, DC, for Plaintiffs Nick Harrison in 1:18-cv-641 (LMB/IDD), Richard Roe in 1:18-cv-1565 (LMB/IDD), Victor Voe in 1:18-cv-1565 (LMB/IDD).

Andrew Ryan Sommer, Greenberg Traurig LLP, McLean, VA, John Webster Hunter Harding, Winston & Strawn LLP, Washington, DC, for Plaintiff The Modern Military Association of America in 1:18-cv-641 (LMB/IDD), 1:18-cv-1565 (LMB/IDD).

Dennis Carl Barghaan, Jr., R. Trent McCotter, United States Attorney's Office, Alexandria, VA, for Defendants Mark Esper in 1:18-cv-641 (LMB/IDD), United States Department of Defense in 1:18-cv-641 (LMB/IDD), 1:18-cv-1565 (LMB/IDD), Richard V. Spencer in 1:18-cv-641 (LMB/IDD), 1:18-cv-1565 (LMB/IDD), Matthew Donovan in 1:18-cv-1565 (LMB/IDD).


Leonie M. Brinkema, United States District Judge

Harrison v. Austin, Case No. 1:18-cv-641, and Roe v. Austin, Case No. 1:18-cv-1565, are two closely related civil actions challenging the United States military's commissioning and retention policies concerning service members who have tested positive for the human immunodeficiency virus ("HIV") but are being treated, are asymptomatic, and have undetectable viral loads. Both sets of policies are based on a virtually categorical determination by the military that such individuals cannot safely deploy worldwide. Before the Court are the parties’ cross-motions for summary judgment. For the following reasons, the plaintiffs’ Motions1 for Summary Judgment will be granted and the defendants’ Motion for Summary Judgment will be denied.


A. Procedural History

On May 30, 2018, plaintiff Nicholas Harrison ("Harrison") filed a one-count complaint alleging that the Army's accession policies prevent him from commissioning as an officer in the Judge Advocate General ("JAG") Corps of the District of Columbia National Guard based on his HIV-positive status.2 [Harrison, Dkt. No. 1].3 On December 19, 2018, pseudonymous

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plaintiffs Richard Roe ("Roe") and Victor Voe ("Voe") filed a five-count complaint alleging that the Air Force's retention policies require their discharge from their respective positions as a Staff Sergeant and Senior Airman based on their HIV-positive status. [Roe, Dkt. No. 1]. Both actions were also brought by OutServe-SLDN, Inc. ("OutServe"), an organization that represents the LGBTQ+ and HIV-positive military communities; however, after OutServe merged with another organization, OutServe was replaced in this litigation by the entity resulting from that merger, the Modem Military Association of America ("MMAA"), a non-profit organization primarily dedicated to promoting the interests of service members and veterans who are LGBTQ+ and/or HIV-positive. [Harrison, Dkt. No. 1, 247, 248]; [Roe, Dkt. No. 1, 259]. The defendants are the United States Department of Defense, Lloyd J. Austin in his official capacity as Secretary of Defense, Christine Wormuth in her official capacity as Secretary of the Army, and Frank Kendall in his official capacity as Secretary of the Air Force (collectively, "defendants" or "the government").4 Although no military branch other than the Army and Air Force is before the Court, nor are any policies directly implicated other than those relating to the commissioning or retention of HIV-positive service members, many of the conclusions in this opinion may have broader implications.5

The restrictions on commissioning and retaining HIV-positive service members are grounded on the same underlying policy, which is an essentially categorical ban on the worldwide deployment of any service member who is HIV-positive, regardless of whether the service member has been successfully treated such that he is asymptomatic and has an undetectable viral load. The only claim asserted in Harrison and the core claim asserted in Roe is that this categorical bar violates the Equal Protection Clause of the Fifth Amendment because it is at odds with current medical evidence concerning HIV treatment and transmission and is, therefore, a policy for which there is no rational basis. In addition, the plaintiffs in Roe assert that this categorical deployment bar, including the defendants’ discharge decisions based on it, violates the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), for similar reasons.6 As a remedy for these alleged constitutional and statutory violations, plaintiffs seek nationwide injunctive and declaratory relief as well as recovery of their reasonable attorneys’ fees and costs.

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Harrison also seeks an order vacating the Army's decision denying his commission and requiring the Secretary of the Army to reevaluate Harrison's application for a commission in the JAG Corps for the D.C. National Guard. Roe and Voe seek an order vacating their separation decisions and any other separation decisions for currently serving Air Force personnel who face separation based solely on their inability to be considered for worldwide deployment due to being HIV-positive.

The parties’ cross-motions for summary judgment are before the Court on an extensive record, most of which was developed during litigation over the Roe plaintiffs’ Motion for Preliminary Injunction. [Roe, Dkt. No. 33]. On February 15, 2019, the Court issued a Memorandum Opinion—based on a record that included over 1,500 pages of materials—granting the plaintiffs a preliminary injunction. [Roe, Dkt. No. 72-73]. In that opinion, the Court found that the Roe plaintiffs "ha[d] made a strong preliminary showing that the Air Force's approach to servicemembers living with HIV is irrational, inconsistent, and at variance with modem science," and enjoined the government "from separating or discharging from military service [Roe], [Voe], and any other similarly situated active-duty member of the Air Force because they are classified as ineligible for worldwide deployment ... due to their HIV-positive status." [Roe Dkt. No. 72] at 54; [Roe Dkt. No. 73]. On April 16, 2019, the government appealed the preliminary injunction to the Fourth Circuit, and both Roe and Harrison were subsequently stayed pending the outcome of that appeal.7

On January 14, 2020, after over 300 pages of additional briefing and the submission of several amicus briefs—including an amicus brief submitted by former Secretaries of the Army, Air Force, and Navy, among other former high-ranking military officials, in support of plaintiffs—the Fourth Circuit affirmed the preliminary injunction issued in Roe in a unanimous, 46-page opinion. Roe v. Department of Defense, 947 F.3d 207 (4th Cir. 2020). The Fourth Circuit's opinion, which is quoted and discussed in detail below, rejected the 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." Id. at 225. The government did not pursue a further appeal of that decision. After the mandate was returned, the stays were lifted in both civil actions and a summary judgment briefing schedule was set. The parties subsequently filed the pending cross-motions for summary judgment, which have been fully briefed and on which oral argument has been held. Significantly, in that argument, counsel for the government could identify very little new, material evidence in the summary judgment record that was not already before this Court during the preliminary injunction proceeding or before the Fourth Circuit during the appellate proceeding. [Harrison, Dkt. No. 299] at 6-7.

B. Factual Background

1. HIV Treatment and Transmission

The following factual background describing the current methods for treating HIV and the risks of transmitting the infection is taken from the beginning of the Fourth Circuit's opinion in Roe:

In the early 1980s, many young and otherwise healthy people became ill with
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"a wide array of rare and often deadly infections." In the United States alone, thousands died. Researchers identified acquired immunodeficiency syndrome (AIDS) as the reason so many otherwise healthy people died from these infections, but they did not understand the cause of AIDS. The people most frequently diagnosed with AIDS belonged to marginalized and stigmatized groups—gay men, intravenous drug users, Haitians, and hemophiliacs—and the disease acquired the colloquial moniker "gay cancer." In 1984, researchers discovered that AIDS was caused by the human immunodeficiency virus (HIV), which could infect any person sufficiently exposed. However, "by that time, many Americans already believed the cause of the disease to be a deviant

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