Harrison: Motions Hearing September 14, 2018

Casey Millburg, reporting for Equality Case Files

On Friday, September 14th, in the U.S. District Court for the Eastern District of Virginia, Judge Leonnie Brinkema considered two pending motions in Harrison v. Mattis: the government’s motion to dismiss and the plaintiffs’ motion for preliminary injunction. Harrison is one of two companion lawsuits brought by Lambda Legal challenging military policies which could effectively purge United States service members living with HIV from the armed forces effective October 1. A companion lawsuit, Doe v. Mattis, is currently pending in the U.S. District Court for the District of Columbia.

BACKGROUND

On February 14, 2018, the Department of Defense unveiled its “Deploy or Get Out!” (DOGO) policy. Under DOGO, the Pentagon is directed to discharge service members unable to be deployed outside of the United States for more than 12 consecutive months. Pursuant to a Pentagon policy, Instruction 6485.01, created in 1991 during the height of the AIDS crisis, soldiers living with HIV are prohibited from deploying overseas. In light of this, the plaintiffs argue that the consequence of DOGO is that service members living with HIV are singled out for discharge, denial of professional advancement, and denied enlistment.

The service member at the center of Harrison v. Mattis is Sgt. Nick Harrison, a 41-year-old veteran of two overseas combat zones (Afghanistan in 2006 and Kuwait in 2011) who was denied a position in the Judge Advocate General (JAG) corps because he is living with HIV. The other plaintiff in this case, OutServe-SLDN, is a nonprofit which provides legal services to LGBT service members and veterans.

PROCEEDINGS

The hearing was held in Alexandria with Judge Leonnie Brinkema presiding. Plaintiffs were represented by Scott Schoettes and Anthony Pingerra of Lambda Legal, Peter Perkowski of OutServe-SLDN, and Andrew Sommer, Cyrus Frelinghuysen, and John Harding of Winston & Strawn LLP. The Department of Defense was represented by Chad A. Readler, Anthony J. Coppolino, and Nathan M. Swinton of the Department of Justice, and G. Zachary Terwilliger and R. Trent McCotter of the United States Attorney’s Office for the Eastern District of Virginia.

Judge Brinkema began by asking the government whether there are any other medical conditions the military says make someone undeployable, specifically mentioning diabetes. R. Trent McCotter, speaking for the defendants, stated that there are 339 conditions the armed services identify as preventing deployment and enlistment in the military, but was unable to provide information about other conditions which make service members undeployable. Scott Schoettes, speaking for the plaintiffs, told the court that colloquially the plaintiffs heard having diabetes used to mean service members could not deploy, however that policy is no longer in effect.

Judge Brinkema further pressed the attorneys on how the condition and treatment of diabetes compares to HIV, and suggested to Schoettes that insulin dependency seems analogous to treatment for HIV. Schoettes countered by noting that those with diabetes actually have far greater and more time-sensitive medical needs than Sgt. Harrison. With diabetes, Schoettes said, when you need insulin you need it promptly, and the consequences of not timely receiving insulin for someone with diabetes can be severe. In contrast, Sgt. Harrison takes a single pill per day, and he can miss several doses before the absence of the medicine in his system will begin to impact his health.

Judge Brinkema then asked Schoettes about the impact of changes the military made to DOGO in July. Those modifications allow each branch to make its own determination, effective October 1, as to whether service members living with HIV should be deemed non-deployable or “deployable with limitations.” Under the July policy, Judge Brinkema noted, it would seem that if a service member is deemed non-deployable they have an opportunity to appeal that designation and argue that medical concerns about their fitness to deploy are not enough to outweigh their fitness in other aspects.

Schoettes responded to this by stating that, while the plaintiffs may need to tweak the language of the preliminary injunction in light of the July policy, ultimately that policy does not deviate from DOGO. Schoettes said this is because the language allowing service members to be removed from the roll of those deployable, solely because they are HIV positive, remains intact following the July policy. Further, Schoettes argued, the July policy allows each branch to determine their own course of action on this matter, and it is far from certain branches will decide to allow HIV-positive soldiers to deploy, be commissioned as officers, or even serve. Past is precedence, Schoettes stated, and the discretion allowed by the July policy may not be helpful to HIV-positive service members listed as non-deployable because there is little guarantee that during an appeal the military will fairly assess their overall value and ability to serve.

Judge Brinkema asked Schoettes about the Navy’s policy, which she called a “more pragmatic” approach. Under the Navy’s current policy, HIV-positive sailors and Marines can be assigned to overseas and large-ship-platform assignments. Schoettes responded that the Navy’s policy does not automatically allow all soldiers to deploy worldwide, however it does not seem to have resulted in the kinds career and discharge-related problems that are created by DOGO. He further stated that policies like DOGO create an unfair playing field, where unlike their non-HIV-positive peers, service members living with HIV have to prove their capacity for serving.

McCotter responded by stating that the plaintiffs misconstrued the July policy. He argued that the July modification not only allows for individualized determinations of deployability, it also allows HIV-positive service members to be assessed as deployable “with limitations.” Judge Brinkema asked whether Sgt. Harrison has been reevaluated under the July policy, and McCotter noted Sgt. Harrison had not been reevaluated yet because the July policy has not yet gone into effect.

Judge Brinkema then asked McCotter about the nature of Sgt. Harrison’s employment within the military. Sgt. Harrison, she noted, wants to serve in the JAG Corps which, though they are often sent to hot zones around the world, normally work at a desk. Cotter responded by saying that while JAG Corps is often a desk job, the fact that JAG officers are deployed to hot zones means it is always possible they will find themselves in a combat situation.

Judge Brinkema then asked McCotter whether, other than being HIV positive, Sgt. Harrison has met the physical standards required for deployability. McCotter stated that Sgt. Harrison had met those standards, however, he argued, that is a separate question from the discharge question at issue in this case. Plaintiffs argue, McCotter stated, that the threat to Sgt. Harrison is not that he could not be deployed but rather that he faces an imminent threat of discharge under the military’s current policies. McCotter argued that there is not currently, nor will there be in the future, an imminent threat of discharge, and that concerns over commissioning are a separate issue. McCotter then argued that Sgt. Harrison is seeking a position which would give him a lifetime commission, and in order to serve in that position he simply needs to obtain a waiver.

Judge Brinkema pressed McCotter on this point, asking whether Sgt. Harrison had previously sought a waiver allowing him to serve as a JAG officer. McCotter confirmed that Sgt. Harrison had sought such a waiver, and argued that though Sgt. Harrison had not received one he was not facing imminent threat of discharge. McCotter argued that this is because Sgt. Harrison only faces discharge if several steps occur, and those steps have not occurred here.

Judge Brinkema countered by stating that under the current circumstances Sgt. Harrison still cannot get commissioned. She then asked the government to address how other circuits, like the 4th and the 5th, which she noted decided the relevant Mindes v. Seaman case, have started to question whether courts must give deference to the military’s internal promotion decisions. While McCotter agreed that Sgt. Harrison cannot currently get commissioned, he noted that other circuits’ rulings about deference to the military’s internal affairs must be viewed in light of repeated Supreme Court rulings stating that the military must be shown deference. When it comes to internal military matters, McCotter noted, the Supreme Court has stated that’s when executive power is at its strongest.

Judge Brinkema then questioned the government about the deference the court should show to the military. Obviously courts give military deference in regards to internal policies, she noted, however that does not mean that the military is immune from scrutiny. For example, she stated, if the military makes a policy to not promote black service members, that would certainly be a policy that the courts would be able to scrutinize and overrule. McCotter pushed back against this analogy, arguing that any sort of alleged discrimination on the basis of HIV is subject to a rational basis analysis, and here the military has demonstrated that combat readiness is a rational basis.

Judge Brinkema then ended her questioning of the parties and denied the government’s motion to dismiss. She stated that the allegations in the complaint satisfied her and that under 12(b)(6) she found sufficient facts to state a claim. She also noted that a full record is needed to flesh out some of the background details of this case, and that discovery could help with that. She also noted that the military has spent considerable funds on Sgt. Harrison, including funding his law school tuition, and because he appears to have satisfied every other requirement to serve overseas a more complete record is needed to assess the validity of the government’s position.

Judge Brinkema then denied the plaintiffs’ motion for preliminary injunction, stating that in light of the July policy there is insufficient evidence that the plaintiff faces imminent discharge without one. She stated that for the time being it appears fine to let everything stay as is, and that the July policy seems to undercut some of the concerns the plaintiffs raised in their preliminary injunction. Finally, Judge Brinkema encouraged the parties to consider settling the case. [Note: Judge Brinkema later issued a written order, available here.]

Sgt. Harrison, dressed in full uniform, was present for the proceedings and appeared at ease, smiling and holding the door open for other attendees before making his way into the courtroom. After the hearing he and his attorneys took a few minutes to speak to the press. “It was clear that the judge understood our case and is concerned about the military’s policy. She also understands that the government has made an investment in Nick, and that this has to be taken into account as well,” Schoettes stated.

In a question and answer session with reporters, Schoettes noted that the July policy signals that the military has not decided what to do, and instead is kicking that decision to different branches. “We want to fix all of the policies. Looking at the July policy, there is an ‘imminent and irreparable harm’ standard within it that the government wasn’t willing to fully embrace, which is concerning. This policy is already harming. Our anonymous plaintiff in Doe v. Mattis has already been harmed, and we’ve heard stories of other service members being harmed under it. The policy says it has an effective date of October 1, but it also says you can start implementing this now.”

Perkowski, the attorney representing OutServe-SLDN, also noted that “the government’s argument today suggested that the harm suffered by service members who would have to appeal a classification of non-deployable would not be imminent enough. ‘Deployable with limitations’ still requires you to prove that you can deploy. It’s essentially the same policy as DOGO.”

Asked about Judge Brinkema’s questions concerning judicial scrutiny of the military, and the government’s response that the appropriate level of scrutiny is rational basis, Schoettes responded by saying, “We are arguing for heightened scrutiny here. Policies singling out people with HIV should receive heightened scrutiny. They are a group of people who have suffered a history of discrimination.”

When asked about the possibility that this case could make its way to the Supreme Court, Schoettes said, “I’m not worried about the Supreme Court with this case, but I don’t think we know where the justices stand on this issue right now. This case raises different issues than they’ve seen before. I’m not worried about it, but we do need to educate courts about the impact of this policy.”

While agreeing that there is much education to be done on HIV, Perkowski noted that “military medical practitioners are generally on our side” regarding whether service members living with HIV are medically fit to serve.

Sgt. Harrison, the man who expected to represent others rather than be represented in court, was asked to describe what the process of this case has been like for him. “I wanted to be a JAG to take care of soldiers. JAG officers help everyone, we take care of everyone else when others who are supposed to take care of them don’t. I’m confused about the military’s policy, and I see this case as an opportunity to get back to serving my fellow troops.”

Casey Millburg is an attorney in D.C. who focuses on election, voting, and government oversight law.

See Lambda Legal for additional information on Harrison v. Mattis and Doe v. Mattis.