Harrison v. Spencer

449 F.Supp.3d 594

Nicholas HARRISON, et al., Plaintiffs,

v.Richard V. SPENCER, Acting Secretary of Defense, et al., Defendants.

Richard Roe, et al., Plaintiffs,

v.Richard V. Spencer, Acting 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 March 27, 2020

Andrew Ryan Sommer, Greenberg Traurig LLP, McLean, VA, John Webster Hunter Harding, Laura Joy Cooley, Winston & Strawn LLP, Washington, DC, for Plaintiffs.

R. Trent McCotter, United States Attorney's Office, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

Leonie M. Brinkema, United States District Judge

Harrison v. Spencer, Case No. 1:18-cv-641, and Roe v. Spencer, Case No. 1:18-cv-1565, are two related civil actions challenging the military's accession and retention policies regarding servicemembers living with the human immunodeficiency virus ("HIV"). Although each action involves different named parties and a different branch of the United States Armed Forces, both actions include the same institutional plaintiff, The Modern Military Association of America ("MMAA"), a non-profit organization primarily dedicated to promoting the interests of current, former, and future servicemembers who are LGBTQ+ and/or HIV positive.¹ The defendants in both actions have filed motions to dismiss MMAA under Federal Rule of Civil Procedure 12(b)(1), arguing that its predecessor, Outserve-SLDN, Inc. ("Outserve"), lacked standing to sue.² Given the nearly identical factual and legal issues raised in each motion, the parties agreed to joint briefing. For the reasons that follow, the defendants' motions to dismiss will be denied.³

I. BACKGROUND

The factual and procedural histories of these actions have been thoroughly recounted in previous opinions, including most recently in a decision issued by the United States Court of Appeals for the Fourth Circuit. See Roe v. Dep't of Defense, 947 F.3d 207 (4th Cir. 2020) ; see also Roe v. Shanahan, 359 F. Supp. 3d 382 (E.D. Va. 2019) ; Harrison v. Shanahan, 2019 WL 2216474 (E.D. Va. May 22, 2019). Therefore, they need not be reproduced in full here. This Memorandum Opinion will focus on the histories of these actions only as they relate to Outserve and the defendants' motions to dismiss. Because the procedural history provides context for understanding the factual history, the procedural history will be addressed first.

On May 13, 2018 and December 19, 2018, respectively, the complaints in Harrison and Roe were filed. [Harrison, Dkt. 1; Roe, Dkt. 1]. On May 3, 2019, the defendants filed their motions to dismiss, arguing that Outserve lacked standing to sue. [Harrison, Dkt. 154; Roe, Dkt. 118]. Shortly thereafter, discovery concluded. [Harrison, Dkt. 106; Roe, Dkt. 32]. On May 31, 2019, after the parties had briefed the issue and oral argument had been held, the motions were held in abeyance to allow the parties one month to conduct additional discovery and file supplemental briefs with respect to whether Outserve had standing to sue. [Harrison, Dkt. 183; Roe, Dkt. 147]. On August 1, 2019, following supplemental briefing but before the motions could be resolved, all proceedings were stayed pending the outcome of the defendants' interlocutory appeal of a preliminary injunction issued in Roe. [Harrison, Dkt. 241; Roe, Dkt. 244]. On March 3, 2020, after the preliminary injunction was affirmed, the formal mandate was returned. [Roe, Dkt. 253]. On March 5, 2020, during a telephone conference with attorneys for all parties present, the parties confirmed that the defendants' motions to dismiss were ripe for resolution and that no further discovery or briefing was necessary. [Harrison, Dkt. 249; Roe, Dkt. 260].

Outserve first began HIV-related work in September 2015. Plaintiffs' Supplemental Brief ("Pl. Br."), Ex. A, at 2; Defendants' Supplemental Brief ("Def. Br."), Ex. Y, at 152–53. At that time, Outserve focused on advocacy initiatives related both to service members' "inconsistent access to pre-exposure prophylaxis, ... a biomedical intervention that prevents the spread of HIV through daily medication taken by people who do not have HIV," and to the military's "accession[ ] standards, which operate[d] as a categorical bar to people living with HIV enlisting or commissioning into service." Pl. Br., Ex. A, at 2–3; see also Def. Br., Ex. Y, at 153–54. The latter initiative arose after an HIV-positive individual who was interested in joining the military had approached Outserve seeking legal assistance. Def. Br., Ex. Y, at 153–54.

Over the next two years, the number of HIV-positive individuals seeking Outserve's legal assistance regarding the military's accession standards, as well as HIV-related issues more generally, steadily increased. In 2016, three HIV-positive individuals who were interested in joining or re-joining the military sought legal assistance regarding the accession standards; Outserve provided assistance to two of them. Pl. Br., Ex. A, at 3, 6; Def. Br., Ex. Y, at 189–92. In 2017, three more HIV-positive individuals who were interested in joining or re-joining the military sought assistance regarding the accession standards; Outserve again provided assistance to two of them, one of whom was plaintiff Nicholas Harrison.⁴ Pl. Br., Ex. A, at 6; Def. Br., Ex. Y, at 194. Additionally, three other HIV-positive individuals who were current or former servicemembers sought assistance regarding discipline and discrimination they faced due to their HIV-positive status. Pl. Br., Ex. A, at 6; Def. Br., Ex. Y, at 195. During these years, Outserve did not advertise that it had begun providing HIV-related legal assistance. Def. Br., Ex. Y, at 193, 196.

Throughout 2018, these numbers dramatically increased. For example, fifteen individuals "had issues related to deployment and retention because of HIV," particularly following the military's announcement of its "Deploy or Get Out" policy in February 2018. Pl. Br., Ex. A, at 7. In addition, two individuals "had issues with duty restrictions they experienced because of their HIV status." Id. Another two individuals "faced discipline—either court marital or involuntary separation—because of their HIV status." Id. Lastly, five individuals "faced barriers to enlisting or commissioning because of their HIV status," i.e., sought legal assistance regarding the accession standard. Id. Responding to these inquires required personnel to provide extensive legal and non-legal support, including "providing non-litigation support and information (such as scientific and medical information), counseling on strategies, giving legal advice and consultation, and even providing emotional and social support." Id. at 8. For instance, Outserve's attorney spent approximately 405 hours on HIV-related issues in 2018, including at least 100 hours on work regarding the military's accession and retention policies.⁵ Id. at 11.

Outserve had always been a small organization with limited human and financial resources. Pl. Br., Ex. A, at 4. For example, between 2016 and 2018, the Outserve attorney referenced above was Outserve's only employee who was a member of a state bar. Outserve also employed approximately 16 individuals in its entire legal and policy department, most of whom were part-time, unpaid interns. Id. at 4–5. Accordingly, Outserve had difficulties accommodating the increase in HIV-related work without sacrificing its work on other projects, including those geared toward the LGBTQ+ military community. Pl. Br., Ex. A, at 8; Def. Br., Ex. Y, at 250. To deal with these difficulties, Outserve utilized a "triage system" whereby it "focus[ed] on tasks that ha[d] the highest impact—i.e., that [would] help the largest number of people or result in the most significant systemic changes—or that ... help[ed] the individuals in the direst need." Pl. Br., Ex. A, at 8; see also Def. Br., Ex. Y, at 252. Individuals facing separation or discharge from military service because of their HIV-positive status were considered to be in particularly dire situations because their careers were "on the chopping block." Def. Br., Ex. Y, at 253–56; Pl. Br., Ex. A, at 8.

Ultimately, various advocative, educational, and legal projects were delayed or curtailed throughout the end of 2017 and all of 2018. Pl. Br., Ex. A, at 9; Def. Br., Ex. Y, at 252. For example, with regard to Outserve's advocacy efforts, (1) advocacy on the reform of military sexual trauma policy was delayed for more than a year, from the first quarter of 2018 to the second quarter of 2019, and (2) advocacy on LGBTQ+ access to veterans' benefits was delayed from the fourth quarter of 2018 to the second quarter of 2019. Pl. Br., Ex. A, at 10; Def. Br., Ex. Y, at 280–83. With regard to Outserve's education efforts, (1) publication of Outserve's online magazine for the LGBTQ+ military community was delayed for a year, from the third quarter of 2018 to the third quarter of 2019, (2) publication of several supplements to Outserve's informational guide about LGBTQ+ and HIV-positive military service was delayed from various quarters in 2018 to the third quarter of 2019, or in some instances indefinitely, and (3) the launch of an online resource tool for regional directors and volunteers was delayed a year, from the second quarter of 2018 to the second quarter of 2019.⁶ Pl. Br., Ex. A, at 9–10; Def. Br., Ex. Y, at 251, 269, 272–73. Lastly, with regard to Outserve's legal efforts, (1) a legal services program to file clemency petitions on behalf of LGBTQ+ veterans who were court martialed or discharged because of military policies regarding sexual activity was delayed indefinitely from "[f]all 2017," (2) a legal services program to file test cases on behalf of LGBTQ+ veterans who were discharged under the military's "Don't Ask Don't Tell" policy before they could qualify for certain veterans' benefits was delayed indefinitely from "early 2018," (3) a Judge Advocate Training program on...