U.S. District Court Eastern District of Virginia - (Alexandria) CIVIL DOCKET FOR CASE #: 1:18-cv-00641-LMB-IDD

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Harrison et al v. Spencer et al Assigned to: District Judge Leonie M. Brinkema Referred to: Magistrate Judge Ivan D. Davis Cause: 28:1331 Federal Question

Date Filed: 05/30/2018 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff Nick Harrison

represented by Andrew Ryan Sommer Greenberg Traurig LLP (McLean) 1750 Tysons Blvd Suite 1000 McLean, VA 22102 703-749-1370 Email: sommera@gtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Webster Hunter Harding Winston & Strawn LLP (DC) 1901 L Street, NW Washington, DC 20036 202-282-5000 Fax: 202-282-5100 Email: Jwharding@winston.com ATTORNEY TO BE NOTICED

Laura Joy Cooley Winston & Strawn LLP (DC) 1700 K St NW Washington, DC 20006 202-282-5000 Fax: 202-282-5100 Email: lcooley@winston.com TERMINATED: 08/28/2019 ATTORNEY TO BE NOTICED

Plaintiff

OutServe-SLDN, Inc. TERMINATED: 03/11/2020
Plaintiff The Modern Military Association of America
Defendant Mark Esper Secretary of the Army

represented by Andrew Ryan Sommer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Webster Hunter Harding (See above for address) ATTORNEY TO BE NOTICED
Laura Joy Cooley (See above for address) TERMINATED: 08/28/2019 ATTORNEY TO BE NOTICED
represented by Andrew Ryan Sommer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Webster Hunter Harding (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis Carl Barghaan , Jr. United States Attorney's Office 2100 Jamieson Ave Alexandria, VA 22314 (703)299-3700 Email: dennis.barghaan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Trent McCotter United States Attorney's Office (Alexandria) 2100 Jamieson Ave Alexandria, VA 22314 703-299-3845 Email: trent.mccotter@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. Department of Defense
Defendant Richard V. Spencer Acting Secretary of Defense

represented by Dennis Carl Barghaan , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Trent McCotter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis Carl Barghaan , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Trent McCotter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/30/2018
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# Docket Text
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)
2 Financial Interest Disclosure Statement (Local Rule 7.1) by OutServeSLDN, Inc. (dvanm, ) (Entered: 05/30/2018)
3 NOTICE of Appearance by John Webster Hunter Harding on behalf of Nick Harrison, OutServe-SLDN, Inc. (Harding, John) (Entered: 05/30/2018)
4 NOTICE of Appearance by Andrew Ryan Sommer on behalf of Nick Harrison, OutServe-SLDN, Inc. (Sommer, Andrew) (Entered: 05/30/2018)
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)

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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)
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)
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 04226108625. , 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, ) (Entered: 05/31/2018)
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)
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)
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)
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)
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)
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)
14 Motion to appear Pro Hac Vice by Anthony Pinggera and Certification of Local Counsel John W.H. Harding Filing fee $ 75, receipt number

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0422-6119231. by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 06/06/2018)
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)
16 Proposed Summons to US Attorney for Eastern District of Virginia by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 06/08/2018)
17 Proposed Summons for Attorney General of the United States of America by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 06/08/2018)
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)
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)
20 SUMMONS Returned Executed as to U.S. Department of Defense. (klau, ) (Entered: 06/15/2018)
21 SUMMONS Returned Executed as to James N. Mattis. (klau, ) (Entered: 06/15/2018)
22 SUMMONS Returned Executed as to U.S. Attorney served on 6/12/2018, answer due 8/13/2018.(klau, ) (Entered: 06/15/2018)
23 SUMMONS Returned Executed as to Jeff Sessions. (dvanm, ) (Entered: 06/18/2018)
24 SUMMONS Returned Executed as to Mark Esper by Nick Harrison, OutServe-SLDN, Inc. (dvanm, ) (Entered: 06/22/2018)
25 MOTION for Preliminary Injunction by Nick Harrison, OutServeSLDN, Inc.. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 07/19/2018)

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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)
27 Notice of Under Seal Filing LCvR5 (B) by Nick Harrison, OutServeSLDN, Inc. (Sommer, Andrew) (Entered: 07/19/2018)
28 MOTION to Seal by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 07/19/2018)
29 Memorandum in Support re 28 MOTION to Seal filed by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 07/19/2018)
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)
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)
32 ORDER granting 28 Motion to Seal. Signed by District Judge Leonie M. Brinkema on 07/19/2018. (dvanm, ) (Entered: 07/19/2018)
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, ) (Entered: 07/19/2018)
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)
34 Notice of Hearing Date re 25 MOTION for Preliminary Injunction (Sommer, Andrew) (Entered: 07/24/2018)

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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)
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, ) (Entered: 07/25/2018)
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)
37 Notice of Hearing Date AUGUST 10, 2018 re 36 MOTION TO ALTER BRIEFING SCHEDULE (McCotter, R.) (Entered: 07/31/2018)
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, ) (Entered: 08/01/2018)
38 Opposition to Motion to Alter Briefing Schedule filed by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 08/03/2018)
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)
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)
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)

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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)
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)
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)
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)
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)
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)
48 Sealed Soper Declaration. (McCotter, R.) (Entered: 08/16/2018)
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, ) (Entered: 08/17/2018)
49 ORDER granting 45 Motion to Seal to the extent that the entire, unredacted 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)
50 Declaration Martha Soper (REDACTED) by Mark Esper, James N. Mattis, U.S. Department of Defense. (McCotter, R.) (Entered: 08/17/2018)

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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)
52 Reply to Motion re 25 MOTION for Preliminary Injunction filed by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 08/30/2018)
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)
54 NOTICE by Nick Harrison, OutServe-SLDN, Inc. re: Potential Conflict (Sommer, Andrew) (Entered: 09/10/2018)
55 NOTICE by Mark Esper, James N. Mattis, U.S. Department of Defense (McCotter, R.) (Entered: 09/11/2018)
56 MOTION for Leave to File a Sur-Reply (Unopposed) by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 09/12/2018)
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)
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)
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, ) (Entered: 09/13/2018)
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)
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

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[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)
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)
62 ANSWER to 1 Complaint by Mark Esper, James N. Mattis, U.S. Department of Defense.(McCotter, R.) (Entered: 09/28/2018)
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)
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)
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)
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)
67 Joint Proposed Discovery Plan by Nick Harrison, OutServe-SLDN, Inc..(Sommer, Andrew) (Entered: 10/19/2018)
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

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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)
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)
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)
71 ORDER granting 69 MOTION for Protective Order filed by OutServeSLDN, Inc., Nick Harrison. Signed by Magistrate Judge Ivan D. Davis on 11/06/2018. (dvanm, ) (Entered: 11/06/2018)
72 MOTION to Compel Production of Documents by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 11/20/2018)
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)
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)
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, ) (Entered: 11/21/2018)
MOTIONS REFERRED to Magistrate Judge: Davis. 72 MOTION to Compel Production of Documents (clar, ) (Entered: 11/21/2018)
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)
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)

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

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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)
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)
87 Notice of Hearing Date set for 12/21/2018 re 82 MOTION to Compel Responses to Interrogatories (Sommer, Andrew) (Entered: 12/14/2018)
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, ) (Entered: 12/17/2018)
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, ) (Entered: 12/17/2018)
MOTIONS REFERRED to Magistrate Judge: Davis. 82 MOTION to Compel Responses to Interrogatories (clar, ) (Entered: 12/17/2018)
88 Consent MOTION to Modify Rule 16(B) Scheduling Order by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 12/18/2018)
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)
90 ORDER granting 88 Motion to Modify the Rule 16(B). Signed by Magistrate Judge Ivan D. Davis on 12/18/2018. (dvanm, ) (Entered: 12/18/2018)

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91 Response to 83 Motion Re: Objections to Magistrate Judge's Ruling or Recommendation re 81 Order on Motion to Compel, filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Sommer, Andrew) (Entered: 12/19/2018)
92 NOTICE by Nick Harrison, OutServe-SLDN, Inc. of Related Proceeding (Sommer, Andrew) (Entered: 12/19/2018)
93 Memorandum in Opposition re 82 MOTION to Compel Responses to Interrogatories filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Exhibit Dec 11 emails, # 2 Exhibit Dec 12-13 emails, # 3 Exhibit Defs' responses to ROGs, # 4 Exhibit Nov 30 transcript, # 5 Exhibit Declaration)(McCotter, R.) (Entered: 12/19/2018)
94 Reply to 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. (McCotter, R.) (Entered: 12/20/2018)
Reset Deadlines as to 82 MOTION to Compel Responses to Interrogatories. Motion Hearing set for 1/4/2019 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (Per IDD chambers) (clar, ) (Entered: 12/20/2018)
95 REPLY to Response to Motion re 82 MOTION to Compel Responses to Interrogatories filed by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 12/20/2018)
96 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing held on 12/21/2018. Appearances of counsel. 83 Motion Re: Objections to Magistrate Judge's Ruling or Recommendation re 81 Order on Motion to Compel is argued and OVERRULED. Magistrate judge's order is AFFIRMED. (order to follow) (Court Reporter A. Thomson.)(yguy) (Entered: 12/21/2018)
97 TRANSCRIPT of proceedings held on 12/21/2018, before Judge Leonie M. Brinkema, Court Reporter Anneliese Thomson, Telephone number 703-299-8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it

may be obtained through PACER Redaction Request due 1/22/2019. Redacted Transcript Deadline set for 2/20/2019. Release of Transcript Restriction set for 3/21/2019.(thomson, anneliese) (Entered: 12/21/2018)

12/21/2018

98 ORDER: For the reasons stated in open court. Non-parties United States Navy, United States Coast Guard, United States Air Force, and United States Marine Corps's Rule 72 Objections to Magistrate Judge's Non-dispositive Ruling [Dkt. No. 83] are OVERRULED, and it is hereby ORDERED that the magistrate judge's Order [Dkt. No. 81] be and is AFFIRMED.. Signed by District Judge Leonie M. Brinkema on 12/21/18. (yguy) (Entered: 12/21/2018)

12/27/2018

99 Consent MOTION Modify Discovery Response Deadlines and Rule 16(B) Scheduling Order by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 12/27/2018)

12/27/2018

100 ORDER granting 99 Consent MOTION Modify Discovery Response Deadlines and Rule 16(B) Scheduling Order. ORDERED that on or before January 4, 2019, at 5:00 p.m. Defendants shall serve their responses to plaintiffs' second set of requests for production and first set of requests for admission; and it is further ORDERED that on or before January 4, 2019, at 5:00 p.m. Plaintiffs shall serve their expert witness disclosures on Defendants. Signed by District Judge Leonie M. Brinkema on 12/27/2018. (dest, ) (Entered: 12/27/2018)

01/03/2019

101 Withdrawal of Motion by Nick Harrison, OutServe-SLDN, Inc. re 82 MOTION to Compel Responses to Interrogatories (Sommer, Andrew) (Entered: 01/03/2019)

01/04/2019

102 Joint MOTION to Modify the Scheduling Order in the Harrison case and for Entry of Briefing Schedule and Scheduling Order in the Roe Case by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 01/04/2019)

01/04/2019

103 Memorandum in Support re 102 Joint MOTION to Modify the Scheduling Order in the Harrison case and for Entry of Briefing Schedule and Scheduling Order in the Roe Case filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 01/04/2019)

01/04/2019 104 Consent MOTION to Modify the Rule 16(B) Scheduling Order by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 01/04/2019)

01/04/2019

105 ORDER granting 104 Motion for an enlargement of the deadlines for the disclosure of plaintiffs' experts' opinions. ORDERED that on or before January 9.2019, at 5:00 p.m., Plaintiffs shall serve their expert witness disclosures on Defendants. Signed by District Judge Leonie M. Brinkema on 01/04/2019. (dvanm, ) (Entered: 01/04/2019)

01/04/2019

106 ORDERED that the 102 joint motion is GRANTED with the following exceptions: the cut-off date for all discovery is Friday, May 10, 2019 and the final pretrial for both civil actions will be held at 10:00 a.m. on Thursday, May 16, 2019, and it is further ORDERED that the parties Proposed Consolidated Discovery Schedule is approved and shall control discovery to the extent of its application unless further modified by the Court. Signed by District Judge Leonie M. Brinkema on 1/4/2019. (dvanm, ) (Entered: 01/04/2019)

01/04/2019

Reset Scheduling Order Deadlines: Final Pretrial Conference set for 5/16/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (dvanm, ) (Entered: 01/04/2019)

01/25/2019

107 MOTION to Compel Documents and Information withheld on the basis of Deliberative Process Privilege by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 01/25/2019)

01/25/2019

108 Memorandum in Support re 107 MOTION to Compel Documents and Information withheld on the basis of Deliberative Process Privilege filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 01/25/2019)

01/25/2019

109 Notice of Hearing Date set for February 1, 2019 re 107 MOTION to Compel Documents and Information withheld on the basis of Deliberative Process Privilege (Sommer, Andrew) (Entered: 01/25/2019)

01/25/2019

110 EXHIBIT 1-6 of Memorandum in Support of Motion to Compel (docket entry 108) by Nick Harrison, OutServe-SLDN, Inc... (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Errata 6)(Sommer, Andrew) (Entered: 01/25/2019)

01/28/2019

Set Deadlines as to 107 MOTION to Compel Documents and Information withheld on the basis of Deliberative Process Privilege. Motion Hearing set for 2/1/2019 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (clar, ) (Entered: 01/28/2019)

01/28/2019

MOTIONS REFERRED to Magistrate Judge: Davis. 107 MOTION to Compel Documents and Information withheld on the basis of Deliberative Process Privilege (clar, ) (Entered: 01/28/2019)

01/30/2019

111 Opposition to 107 MOTION to Compel Documents and Information withheld on the basis of Deliberative Process Privilege filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Exhibit Badhi Declaration, # 2 Exhibit Beland Declaration, # 3 Exhibit Ciminera Declaration, # 4 Exhibit Huibregtse Declaration, # 5 Exhibit Melillo Declaration, # 6 Exhibit Shell Declaration)(McCotter, R.) (Entered: 01/30/2019)

01/31/2019

112 REPLY to Response to Motion re 107 MOTION to Compel Documents and Information withheld on the basis of Deliberative Process Privilege filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Sommer, Andrew) (Entered: 01/31/2019)

02/01/2019

113 Minute Entry for proceedings held before Magistrate Judge Ivan D. Davis:Motion Hearing held on 2/1/2019 re 107 MOTION to Compel Documents and Information withheld on the basis of Deliberative Process Privilege filed by OutServe-SLDN, Inc., Nick Harrison. Appearance of Counsel for Plaintiff and Defendant. Motion argued and held in abeyance. Order to follow. (Tape #FTR.)(lgue, ) (Entered: 02/01/2019)

02/01/2019

114 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 Documents and Information Withheld on the Basis of Deliberative Process Privilege 107 is HELD IN ABEYANCE. By 5 p.m. on February 5, 2019, the Parties shall file a notice of whether the outstanding discovery disputes have been resolved. If the discovery issues have not been resolved, then the Parties shall set forth the remaining discovery issues and the Court will reconvene this Motion on February 8, 2019, at 10 a.m. Signed by Magistrate Judge Ivan D. Davis on 2/1/2019. (lgue, ) (Entered: 02/01/2019)

02/04/2019

115 TRANSCRIPT of proceedings held on 2/1/2019, before Judge Ivan D. Davis, Transcriber Anneliese Thomson, Telephone number 703-2998595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 3/6/2019. Redacted Transcript Deadline set

for 4/8/2019. Release of Transcript Restriction set for 5/6/2019.(thomson, anneliese) (Entered: 02/04/2019)

02/05/2019

116 STATUS REPORT 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: 02/05/2019)

02/06/2019

Set Deadlines as to 107 MOTION to Compel Documents and Information withheld on the basis of Deliberative Process Privilege. Motion Hearing set for 2/8/2019 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (lgue, ) (Entered: 02/06/2019)

02/08/2019

117 Minute Entry for proceedings held before Magistrate Judge Ivan D. Davis:Motion Hearing held on 2/8/2019 re 107 MOTION to Compel Documents and Information withheld on the basis of Deliberative Process Privilege filed by OutServe-SLDN, Inc., Nick Harrison. Appearances of counsel for Pltf and Deft. Motion is argued and further held in abeyance (see Order for details); Order to follow. (Tape #FTR.)(tfitz, ) (Entered: 02/08/2019)

02/08/2019

118 FOR REASONS stated from the bench and in accord with specific rulings and instructions thereto, it is hereby ORDERED that Plaintiffs' Motion to Compel Documents and Information Withheld on the Basis of Deliberative Process Privilege 107 is FURTHER HELD IN ABEYANCE. The Court will conduct an in camera review of the documents at issue in this case to determine whether the deliberative process privilege applies and whether the documents have been properly withheld. The parties shall randomly select documents for an in camera review and shall produce those documents to the Court on Tuesday, February 12, 2019, by 5 p.m. Signed by Magistrate Judge Ivan D. Davis on 2/8/19. (tfitz, ) (Entered: 02/08/2019)

02/12/2019

119 MOTION to Seal by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 02/12/2019)

02/12/2019 120 Notice of Filing Sealing Motion LCvR5(C) by Mark Esper, James N. Mattis, U.S. Department of Defense re 119 MOTION to Seal (McCotter, R.) (Entered: 02/12/2019)

02/12/2019 121 Memorandum in Support re 119 MOTION to Seal filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (McCotter, R.) (Entered: 02/12/2019)

02/19/2019

Reset Deadlines as to 107 MOTION to Compel Documents and Information withheld on the basis of Deliberative Process Privilege.

Motion Hearing set for 2/22/2019 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (Per IDD chambers) (clar, ) (Entered: 02/19/2019)

02/21/2019 122 ORDER granting 119 Motion to Seal. Signed by Magistrate Judge Ivan D. Davis on 02/21/2019. (dvanm, ) (Entered: 02/21/2019)

02/22/2019

123 Minute Entry for proceedings held before Magistrate Judge Ivan D. Davis:Motion Hearing held on 2/22/2019 re 107 MOTION to Compel Documents and Information withheld on the basis of Deliberative Process Privilege filed by OutServe-SLDN, Inc., Nick Harrison. Appearance of Counsel for Plaintiff and Defendant. Motion argued and held in abeyance. Order to follow. (Tape #FTR.)(lgue, ) (Entered: 02/22/2019)

02/22/2019

124 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 Documents and Information Withheld on the Basis of Deliberative Process Privilege 107 is FURTHER HELD IN ABEYANCE. The parties are ordered to narrow the discovery dispute in a good faith meet and confer because the Court finds that Defendants have argued an overly broad deliberative process privilege defense. The parties shall file a joint status report of this discovery dispute by February 27, 2019, at 5 p.m. The Court intends to rule on the papers for this Motion unless the parties indicate otherwise in their joint status report. Signed by Magistrate Judge Ivan D. Davis on 02/22/2019. (lgue, ) (Entered: 02/22/2019)

02/27/2019

125 TRANSCRIPT of proceedings held on 2/22/2019, before Judge Ivan D. Davis, Transcriber Anneliese Thomson, Telephone number 703-2998595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 3/29/2019. Redacted Transcript Deadline set for 4/29/2019. Release of Transcript Restriction set for 5/28/2019.(thomson, anneliese) (Entered: 02/27/2019)

02/27/2019

126 STATUS REPORT Joint Status Report Pursuant to the Court's February 22, 2019 Order by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Exhibit A)(Sommer, Andrew) (Entered: 02/27/2019)

03/07/2019 127 NOTICE by Mark Esper, James N. Mattis, U.S. Department of Defense WITHDRAWAL OF PRIVILEGE ASSERTION OVER SPECIFIED DOCUMENTS (McCotter, R.) (Entered: 03/07/2019)

03/14/2019

128 ORDER granting 107 MOTION to Compel Documents and Information withheld on the basis of Deliberative Process Privilege. Signed by Magistrate Judge Ivan D. Davis on 1/14/2019. (aott) (Entered: 03/14/2019)

03/15/2019

129 Joint MOTION to Amend/Correct the Scheduling Order for the Limited Purpose of Taking Several Depositions Out of Time by Nick Harrison, OutServe-SLDN, Inc.. (Sommer, Andrew) (Entered: 03/15/2019)

03/15/2019

130 Memorandum in Support re 129 Joint MOTION to Amend/Correct the Scheduling Order for the Limited Purpose of Taking Several Depositions Out of Time filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Sommer, Andrew) (Entered: 03/15/2019)

03/15/2019

131 ORDER granting 129 Joint Motion to Amend the Scheduling Order for the Limited Purpose of Taking Several Depositions Out of Time ; directing that depositions of parties identified in the motion occur no later than 3/25/2019. Signed by Magistrate Judge Ivan D. Davis on 3/15/2019. (aott) (Entered: 03/15/2019)

03/22/2019 132 MOTION to Stay re 128 Order on Motion to Compel by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 03/22/2019)

03/22/2019

133 Memorandum in Support re 132 MOTION to Stay re 128 Order on Motion to Compel filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (McCotter, R.) (Entered: 03/22/2019)

03/22/2019 134 Notice of Hearing Date set for March 29, 2019 re 132 MOTION to Stay re 128 Order on Motion to Compel (McCotter, R.) (Entered: 03/22/2019)

03/25/2019

Set Deadlines as to 132 MOTION to Stay re 128 Order on Motion to Compel . Motion Hearing set for 3/29/2019 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (clar, ) (Entered: 03/25/2019)

03/25/2019

MOTIONS REFERRED to Magistrate Judge: Davis. 132 MOTION to Stay re 128 Order on Motion to Compel (clar, ) (Entered: 03/25/2019)

03/27/2019 135 Opposition Plaintiffs' Limited Opposition to Defendants' Motion to Stay Compliance with the Magistrate Judge's Order filed by Nick Harrison,

OutServe-SLDN, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sommer, Andrew) (Entered: 03/27/2019)

03/28/2019

136 REPLY to Response to Motion re 132 MOTION to Stay re 128 Order on Motion to Compel filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (McCotter, Richard) (Entered: 03/28/2019)

03/28/2019

137 Motion Re: Objections to Magistrate Judge's Ruling or Recommendation re 128 Order on Motion to Compel by Mark Esper, James N. Mattis, U.S. Department of Defense. (McCotter, Richard) (Entered: 03/28/2019)

03/28/2019

138 Memorandum in Support re 137 Motion Re: Objections to Magistrate Judge's Ruling or Recommendation re 128 Order on Motion to Compel filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (McCotter, Richard) (Entered: 03/28/2019)

03/28/2019

139 Notice of Hearing Date set for April 5, 2019 re 137 Motion Re: Objections to Magistrate Judge's Ruling or Recommendation re 128 Order on Motion to Compel (McCotter, Richard) (Entered: 03/28/2019)

03/29/2019

Set Deadlines as to 137 Motion Re: Objections to Magistrate Judge's Ruling or Recommendation re 128 Order on Motion to Compel . Motion Hearing set for 4/5/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 03/29/2019)

03/29/2019

140 Minute Entry for proceedings held before Magistrate Judge Ivan D. Davis:Motion Hearing held on 3/29/2019 re 132 MOTION to Stay re 128 Order on Motion to Compel filed by U.S. Department of Defense, James N. Mattis, Mark Esper. Appearance of Counsel for Plaintiff and Defendant. Motion argued and GRANTED. Order to follow. (Tape #FTR.)(lgue, ) (Entered: 03/29/2019)

03/29/2019

141 ORDER - FOR REASONS stated from the bench and in accord with specific rulings and instructions thereto, it is hereby ORDERED that Defendants' Motion to Stay 132 is GRANTED. Signed by Magistrate Judge Ivan D. Davis on 03/29/2019. (lgue, ) (Entered: 03/29/2019)

03/29/2019

142 NOTICE by Mark Esper, James N. Mattis, U.S. Department of Defense SUBMISSION OF COURTESY COPY OF EX PARTE UNDER SEAL MATERIALS (McCotter, Richard) (Entered: 03/29/2019)

04/03/2019 143 Motion to appear Pro Hac Vice by Alexandra Jane Hemmings and Certification of Local Counsel John W.H. Harding by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 04/03/2019)

04/03/2019

144 Response to the Government's Rule 72 Objections to Magistrate Judge's Non-Dispositive Ruling Regarding the Deliberative Process Privilege filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Sommer, Andrew) (Entered: 04/03/2019)

04/04/2019

145 ORDERED that the hearing on defendants' objections 137 be and isRESCHEDULED for Friday, April 12, 2019. Signed by District Judge Leonie M. Brinkema on 4/4/2019. (dvanm, ) (Entered: 04/04/2019)

04/04/2019

Reset Deadlines as to 137 Motion Re: Objections to Magistrate Judge's Ruling or Recommendation re 128 Order on Motion to Compel . Motion Hearing set for 4/12/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (dvanm, ) (Entered: 04/04/2019)

04/04/2019

146 REPLY to Response to Motion re 137 Motion Re: Objections to Magistrate Judge's Ruling or Recommendation re 128 Order on Motion to Compel filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Exhibit 2018 Report to Congress)(McCotter, Richard) (Entered: 04/04/2019)

04/08/2019 147 ORDER granting 143 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 4/8/2019. (dvanm, ) (Entered: 04/08/2019)

04/12/2019

148 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing held on 4/12/2019. Appearances of counsel. Defts' 137 Motion Re: Objections to Magistrate Judge's Ruling or Recommendation re 128 Order on Motion to Compel is argued and TAKEN UNDER ADVISEMENT. (Court Reporter A. Thomson.)(yguy) (Entered: 04/12/2019)

04/12/2019

149 For the reasons stated in open court, it is hereby ORDERED that defendants' Rule 72 Objections to Magistrate Judge's NondispositiveRuling [Dkt. No. 137] is TAKEN UNDER ADVISEMENT.Signed by District Judge Leonie M. Brinkema on 4/12/19. (yguy) (Entered: 04/12/2019)

04/12/2019 150 NOTICE by Mark Esper, James N. Mattis, U.S. Department of Defense (McCotter, Richard) (Entered: 04/12/2019)

05/02/2019 151 Joint MOTION to Modify the Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 05/02/2019)

05/02/2019

152 Memorandum in Support re 151 Joint MOTION to Modify the Scheduling Order for the Limited Purpose of Taking a Deposition Out of Time filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 05/02/2019)

05/03/2019 153 ORDER granting 151 Joint Motion to Modify the Scheduling Order. Signed by Magistrate Judge Ivan D. Davis on 5/3/2019. (dvanm, ) (Entered: 05/03/2019)

05/03/2019

154 MOTION to Dismiss for Lack of Jurisdiction IN PART by Mark Esper, James N. Mattis, U.S. Department of Defense. (McCotter, R.) (Entered: 05/03/2019)

05/03/2019

155 Memorandum in Support re 154 MOTION to Dismiss for Lack of Jurisdiction IN PART filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit E, # 4 Exhibit N, # 5 Exhibit O, # 6 Exhibit Q, # 7 Exhibit R)(McCotter, R.) (Entered: 05/03/2019)

05/03/2019 156 MOTION to Seal by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 05/03/2019)

05/03/2019 157 Memorandum in Support re 156 MOTION to Seal filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (McCotter, R.) (Entered: 05/03/2019)

05/03/2019 158 Notice of Under Seal Filing LCvR5 (B) by Mark Esper, James N. Mattis, U.S. Department of Defense (McCotter, R.) (Entered: 05/03/2019)

05/03/2019 159 Sealed Attachment/Exhibit(s) FOR PARTIAL MOTION TO DISMISS. (McCotter, R.) (Entered: 05/03/2019)

05/03/2019 160 Notice of Hearing Date set for MAY 31, 2019 re 154 MOTION to Dismiss for Lack of Jurisdiction IN PART (McCotter, R.) (Entered: 05/03/2019)

05/06/2019 161 ORDER granting 156 Motion to Seal. Signed by District Judge Leonie M. Brinkema on 05/06/2019. (jlan) (Entered: 05/06/2019)

05/06/2019

Set Deadlines as to 154 MOTION to Dismiss for Lack of Jurisdiction IN PART. Motion Hearing set for 5/31/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 05/06/2019)

05/13/2019 162 NOTICE of Appearance by Laura Joy Cooley on behalf of Nick Harrison, OutServe-SLDN, Inc. (Cooley, Laura) (Entered: 05/13/2019)

05/13/2019

Set/Reset Hearings: Final Pretrial Conference reset for 5/16/2019 at 09:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (yguy) (Entered: 05/13/2019)

05/14/2019 163 Joint MOTION to Enlarge Time to File Pretrial Disclosures by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 05/14/2019)

05/14/2019

164 Memorandum in Support re 163 Joint MOTION to Enlarge Time to File Pretrial Disclosures filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 05/14/2019)

05/14/2019

165 ORDERED that the 163 Parties' Joint Motion to Enlarge Time to File Pretrial Disclosures is granted, and that the Parties shall file the pretrial disclosures required by the scheduling order entered in Harrison v. Shanahan see Dkt. 64 on or before May 30,2019. Signed by District Judge Leonie M. Brinkema on 05/14/2019. (dvanm, ) (Entered: 05/14/2019)

05/16/2019

166 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Final Pretrial Conference held on 5/16/2019. Appearances of counsel. Court advised of case status. Deadline to file witness/exhibits list previously extended to May 30th. Trial estimate - 1 week. Bench Trial set for 9/9/2019at 09:30 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (Court Reporter A. Thomson.)(yguy) (Entered: 05/16/2019)

05/17/2019 167 NOTICE by Mark Esper, James N. Mattis, U.S. Department of Defense re 154 MOTION to Dismiss for Lack of Jurisdiction IN PART Filing of Redacted Exhibits A, D, F-M, P (McCotter, R.) (Entered: 05/17/2019)

05/17/2019

168 Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe-SLDN filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E)(Harding, John) (Entered: 05/17/2019)

05/17/2019

169 MOTION to Seal Exhibits B and F-L filed Simultaneously with Plaintiffs' Opposition to Defendants' Renewed Motion to Dismiss Plaintiff OutServe-SLDN by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 05/17/2019)

05/17/2019 170 Notice of Filing Sealing Motion LCvR5(C) by Nick Harrison, OutServe-SLDN, Inc. re 169 MOTION to Seal Exhibits B and F-L filed

Simultaneously with Plaintiffs' Opposition to Defendants' Renewed Motion to Dismiss Plaintiff OutServe-SLDN (Harding, John) (Entered: 05/17/2019)

05/17/2019

171 Sealed Document re 169 MOTION to Seal Exhibits B and F-L filed Simultaneously with Plaintiffs' Opposition to Defendants' Renewed Motion to Dismiss Plaintiff OutServe-SLDN. (Attachments: # 1 Exhibit F, # 2 Exhibit G, # 3 Exhibit H, # 4 Exhibit I, # 5 Exhibit J, # 6 Exhibit K, # 7 Exhibit L)(Harding, John) (Entered: 05/17/2019)

05/17/2019

172 Memorandum in Support re 169 MOTION to Seal Exhibits B and F-L filed Simultaneously with Plaintiffs' Opposition to Defendants' Renewed Motion to Dismiss Plaintiff OutServe-SLDN filed by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 05/17/2019)

05/21/2019

173 ORDERED that Exhibits B and F-L in support of Plaintiffs' Opposition Defendants' Renewed Motion to Dismiss Plaintiff OutServe-SLDN may remain filed imder seal, and that Plaintiffs publicly file redacted versions of Exhibits B and F-L by May 29,2019. Signed by District Judge Leonie M. Brinkema on 05/21/2019. (dvanm, ) (Entered: 05/21/2019)

05/21/2019

174 Motion to appear Pro Hac Vice by Kara Nicole Ingelhart and Certification of Local Counsel Laura Cooley Filing fee $ 75, receipt number 0422-6652074. by Nick Harrison, OutServe-SLDN, Inc.. (Cooley, Laura) (Entered: 05/21/2019)

05/22/2019 175 MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 5/22/2019. (dvanm, ) (Entered: 05/22/2019)

05/22/2019

176 ORDER For the reasons stated in the accompanying Memorandum Opinion, defendants' Rule 72 Objections to Magistrate Judge's Nondispositive Ruling 137 are SUSTAINED IN PART and OVERRULED IN PART, the magistrate judge's Order 128 is AFFIRMED IN PART and REVERSED IN PART, plaintiffs' Motion to Compel Documents and Information Withheld on the Basis of the Deliberative Process Privilege 108 is GRANTED IN PART and DENIED IN PART. Signed by District Judge Leonie M. Brinkema on 5/22/2019. (dvanm, ) (Entered: 05/22/2019)

05/22/2019

Reset Deadlines as to 154 MOTION to Dismiss for Lack of Jurisdiction IN PART. Motion Hearing set for 5/31/2019 at 09:30 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (Per LMB chambers) (clar, ) (Entered: 05/22/2019)

05/23/2019 177 REPLY to Response to Motion re 154 MOTION to Dismiss for Lack of Jurisdiction IN PART filed by Mark Esper, James N. Mattis, U.S.

Department of Defense. (Attachments: # 1 Exhibit S, # 2 Exhibit T)(McCotter, R.) (Entered: 05/23/2019)

05/29/2019

178 Consent MOTION for Extension of Time to File and Exchange Rule 26 Disclosures by Mark Esper, James N. Mattis, U.S. Department of Defense. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 05/29/2019)

05/29/2019

179 Memorandum in Support re 178 Consent MOTION for Extension of Time to File and Exchange Rule 26 Disclosures filed by Mark Esper, James N. Mattis, U.S. Department of Defense. (McCotter, R.) (Entered: 05/29/2019)

05/29/2019

180 Redacted version of Exhibits B, F-L in relation to Order granting Motion to Seal entered May 20,2019. (Attachments: # 1 Exhibit F, # 2 Exhibit G, # 3 Exhibit H, # 4 Exhibit I, # 5 Exhibit J, # 6 Exhibit K, # 7 Exhibit L)(Harding, John) (Entered: 05/29/2019)

05/29/2019

181 ORDERED that the 178 Defendants' Consent Motion to Enlarge Time to File Pretrial Disclosures is granted, and that the Parties shall file the pretrial disclosures required by the scheduling order entered in Harrison v. Shanahan, see Dkt. 64 on or before June 5, 2019. Signed by District Judge Leonie M. Brinkema on 05/29/2019. (dvanm, ) (Entered: 05/30/2019)

05/30/2019

Reset Deadlines as to 154 MOTION to Dismiss for Lack of Jurisdiction IN PART. Motion Hearing set for 5/31/2019 at 09:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (Per LMB chambers) (clar, ) (Entered: 05/30/2019)

05/31/2019

182 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing held on 5/31/2019. Appearances of counsel. Defts 154 MOTION to Dismiss for Lack of Jurisdiction IN PART is argued and HELD IN ABEYANCE. (order to follow) (Court Reporter A. Thomson.)(yguy) (Entered: 05/31/2019)

05/31/2019

183 ORDER: For the reasons stated in open court, Defendants' Renewed Motions to Dismiss [l:18-cv-641,Dkt.No. 154; l:18-cv-1565, Dkt. No. 118]' are HELD IN ABEYANCE, and it is hereby ORDERED that the parties have until the close of business on Monday, July 1, 2019 to conduct additional discovery with respect to whether plaintiff OutServe-SLDN, Inc. has associational and/or direct standing. If the additional discovery period does not reveal any further facts that merit attention, the parties should so advise the Court. Alternatively, if any party wishes to submit additional briefing related to newly discovered evidence, it must do so no later than Friday, July 12,2019. Any briefs in opposition must be filed by Friday, July 19,2019, and no reply briefs

will be permitted. (see order for details). Signed by District Judge Leonie M. Brinkema on 5/31/19. (yguy) (Entered: 05/31/2019)

05/31/2019

184 NOTICE by Mark Esper, Patrick M. Shanahan, U.S. Department of Defense DELIVERY OF EX PARTE AND UNDER SEAL MATERIALS (McCotter, R.) (Entered: 05/31/2019)

06/03/2019

185 ORDERED that defendants need not produce to plaintiffs any of the redactions orwithheld documents included in their ex parte submission. Signed by District Judge Leonie M. Brinkema on 06/03/2019. (dvanm, ) (Entered: 06/03/2019)

06/04/2019 186 ORDER granting 174 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 06/04/2019. (dvanm, ) (Entered: 06/04/2019)

06/05/2019 187 Exhibit List by Mark Esper, Patrick M. Shanahan, U.S. Department of Defense.. (McCotter, R.) (Entered: 06/05/2019)

06/05/2019 188 Witness List by Mark Esper, Patrick M. Shanahan, U.S. Department of Defense. (McCotter, R.) (Entered: 06/05/2019)

06/05/2019 189 Exhibit List by Nick Harrison, OutServe-SLDN, Inc... (Harding, John) (Entered: 06/05/2019)

06/05/2019 190 Witness List by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 06/05/2019)

06/05/2019 191 Statement of Undisputed Facts by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 06/05/2019)

06/12/2019

192 TRANSCRIPT of proceedings held on 5/31/2019, before Judge Leonie M. Brinkema, Court Reporter Anneliese Thomson, Telephone number 703-299-8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 7/12/2019. Redacted Transcript Deadline set for 8/12/2019. Release of Transcript Restriction set for 9/10/2019.(thomson, anneliese) (Entered: 06/12/2019)

06/17/2019 193 Objection to 189 Exhibit List filed by Mark Esper, Patrick M. Shanahan, U.S. Department of Defense. (McCotter, R.) (Entered: 06/17/2019)

06/17/2019 194 Objection to 187 Exhibit List by Mark Esper, Patrick M. Shanahan, U.S. Department of Defense, (Harding, John) Modified on 6/18/2019 document linked erroneously (dest, ). (Entered: 06/17/2019)

06/17/2019 195 Objection to 188 Witness List filed by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 06/17/2019)

06/19/2019 196 Plaintiffs' First Supplemental Exhibit List by Nick Harrison, OutServeSLDN, Inc... (Harding, John) (Entered: 06/19/2019)

06/21/2019 197 Joint MOTION to Modify the Court's Order for the Limited Purpose of Taking a Deposition Out of Time by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 06/21/2019)

06/21/2019

198 Memorandum in Support re 197 Joint MOTION to Modify the Court's Order for the Limited Purpose of Taking a Deposition Out of Time filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 06/21/2019)

06/24/2019

199 ORDER - After considering the 197 Parties' Joint Motion to Modify the Court's Order for the Limited Purpose of Taking a Deposition Out of Time, the Court GRANTS the Motion, and amends the Order to permit the deposition of Andy Blevins to occur on July 2, 2019. Signed by Magistrate Judge Ivan D. Davis on 06/24/2019. (dvanm, ) (Entered: 06/24/2019)

07/01/2019

200 Objection to 196 Exhibit List filed by Mark Esper, Patrick M. Shanahan, U.S. Department of Defense. (McCotter, R.) (Entered: 07/01/2019)

07/03/2019 201 Consent MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking Depositions Out of Time by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 07/03/2019)

07/03/2019

202 Memorandum in Support re 201 Consent MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking Depositions Out of Time filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 07/03/2019)

07/03/2019 203 Notice of Hearing Date set for July 12, 2019 re 201 Consent MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking Depositions Out of Time (Harding, John) (Entered: 07/03/2019)

07/05/2019

Set Deadlines as to 201 Consent MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking Depositions Out of Time . Motion Hearing set for 7/12/2019 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (dvanm, ) (Entered: 07/05/2019)

07/05/2019

MOTIONS REFERRED to Magistrate Judge: Davis. 201 Consent MOTION to Modify the Court's Scheduling Order for the Limited Purpose of Taking Depositions Out of Time (dvanm, ) (Entered: 07/05/2019)

07/05/2019

204 ORDER - After considering the 201 Plaintiffs' Unopposed Motion to Modify the Court's Scheduling Order for the Limited Purpose of Taking Depositions Out of Time, the Court GRANTS the Motion, and amends the Order, to permit the depositions of Dr. Donald Shell, Colonel Karen Downes, and Colonel Scott T. Frazier to be taken out of time. Signed by District Judge Leonie M. Brinkema on 07/05/2019. (dvanm, ) (Entered: 07/05/2019)

07/12/2019

205 RESPONSE in Opposition re 154 MOTION to Dismiss for Lack of Jurisdiction IN PART filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Exhibit D, # 2 Exhibit G)(Harding, John) (Entered: 07/12/2019)

07/12/2019

206 MOTION to Seal Exhibits A-C, E and F to Plaintiffs' Supplemental Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe-SLDN by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 07/12/2019)

07/12/2019

207 Notice of Filing Sealing Motion LCvR5(C) by Nick Harrison, OutServe-SLDN, Inc. re 206 MOTION to Seal Exhibits A-C, E and F to Plaintiffs' Supplemental Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe-SLDN (Harding, John) (Entered: 07/12/2019)

07/12/2019

208 Sealed Attachment/Exhibit(s) re 206 MOTION to Seal Exhibits A-C, E and F to Plaintiffs' Supplemental Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe-SLDN. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit E, # 4 Exhibit F)(Harding, John) (Entered: 07/12/2019)

07/12/2019

209 Memorandum in Support re 206 MOTION to Seal Exhibits A-C, E and F to Plaintiffs' Supplemental Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe-SLDN filed by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 07/12/2019)

07/12/2019

210 Sealed Memorandum in Support re 154 MOTION to Dismiss for Lack of Jurisdiction IN PART. (Attachments: # 1 Exhibit Batch 1, # 2 Exhibit Batch 2, # 3 Exhibit Batch 3, # 4 Exhibit Batch 4, # 5 Exhibit Batch 5)(McCotter, R.) (Entered: 07/12/2019)

07/12/2019 211 MOTION to Seal by Mark Esper, Patrick M. Shanahan, U.S. Department of Defense. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 07/12/2019)

07/12/2019

212 Notice of Under Seal Filing LCvR5 (B) by Mark Esper, Patrick M. Shanahan, U.S. Department of Defense (McCotter, R.) (Entered: 07/12/2019)

07/12/2019 213 Memorandum in Support re 211 MOTION to Seal filed by Mark Esper, Patrick M. Shanahan, U.S. Department of Defense. (McCotter, R.) (Entered: 07/12/2019)

07/12/2019 214 NOTICE by Mark Esper, Patrick M. Shanahan, U.S. Department of Defense SUBMISSION OF UNDER SEAL DVD (McCotter, R.) (Entered: 07/12/2019)

07/15/2019 215 ORDER granting 206 Motion to Seal. Signed by District Judge Leonie M. Brinkema on 07/15/2019. (dvanm, ) (Entered: 07/15/2019)

07/15/2019

216 ORDER granting 211 Motion to Seal. The Court further ORDERS that Defendants shall confer with Plaintiffs regarding redactions and that Defendants will publicly file a redacted version by July 26, 2019. Defendantsmay redact only information that poses a reasonable risk of exposing the identities of HIV-positive service members or reveals OutServe's confidential business information. Signed by District Judge Leonie M. Brinkema on 07/15/2019. (dvanm, ) (Entered: 07/15/2019)

07/19/2019

217 TRANSCRIPT of proceedings held on 5/16/2019, before Judge Leonie M. Brinkema, Court Reporter Anneliese Thomson, Telephone number 703-299-8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 8/19/2019. Redacted Transcript Deadline set for 9/18/2019. Release of Transcript Restriction set for 10/17/2019.(thomson, anneliese) (Entered: 07/19/2019)

07/19/2019

218 EXHIBIT Redacted Versions of Exhibits A-C, E and F related to D.E. No. 205 Response in Opposition to Docket Entry No. 154 Motion to Dismiss by Nick Harrison, OutServe-SLDN, Inc... (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit E, # 4 Exhibit F)(Harding, John) (Entered: 07/19/2019)

07/19/2019

219 MOTION to Stay Summary Judgment and Trial Pending Appellate Ruling by Mark Esper, Patrick M. Shanahan, U.S. Department of Defense. (Attachments: # 1 Proposed Order, # 2 Exhibit Combined Exhibits)(McCotter, R.) (Entered: 07/19/2019)

07/19/2019 220 Notice of Hearing Date set for JULY 26, 2019 re 219 MOTION to Stay Summary Judgment and Trial Pending Appellate Ruling (McCotter, R.) (Entered: 07/19/2019)

07/19/2019

221 Reply to 210 Sealed Memorandum in Support filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Exhibit A)(Harding, John) (Entered: 07/19/2019)

07/19/2019

222 MOTION to Seal Exhibit B filed Simultaneously with Plaintiffs' Supplemental Response Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe-SLDN by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 07/19/2019)

07/19/2019

223 Notice of Under Seal Filing LCvR5 (B) by Nick Harrison, OutServeSLDN, Inc. re 222 MOTION to Seal Exhibit B filed Simultaneously with Plaintiffs' Supplemental Response Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServeSLDN (Harding, John) (Entered: 07/19/2019)

07/19/2019

224 Sealed Attachment/Exhibit(s) re 222 MOTION to Seal Exhibit B filed Simultaneously with Plaintiffs' Supplemental Response Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe-SLDN. (Harding, John) (Entered: 07/19/2019)

07/19/2019

225 Memorandum in Support re 222 MOTION to Seal Exhibit B filed Simultaneously with Plaintiffs' Supplemental Response Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe-SLDN filed by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 07/19/2019)

07/19/2019

226 ORDER granting 222 Motion to Seal Exhibit B filed Simultaneously with Plaintiffs' Supplemental Response Brief in Opposition to Defendants' Renewed Motions to Dismiss Plaintiff OutServe-SLDN. Signed by District Judge Leonie M. Brinkema on 7/19/2019. (see Order for details) (dest, ) (Entered: 07/19/2019)

07/19/2019 227 Sealed Response/Reply/Opposition re 154 MOTION to Dismiss for Lack of Jurisdiction IN PART. (Attachments: # 1 Exhibit Combined Exhibits)(McCotter, R.) (Entered: 07/19/2019)

07/19/2019 228 MOTION to Seal by Mark Esper, Patrick M. Shanahan, U.S. Department of Defense. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 07/19/2019)

07/19/2019

229 Memorandum in Support re 228 MOTION to Seal filed by Mark Esper, Patrick M. Shanahan, U.S. Department of Defense. (McCotter, R.) (Entered: 07/19/2019)

07/19/2019 230 Notice of Filing Sealing Motion LCvR5(C) by Mark Esper, Patrick M. Shanahan, U.S. Department of Defense (McCotter, R.) (Entered: 07/19/2019)

07/22/2019

Set Deadlines as to 219 MOTION to Stay Summary Judgment and Trial Pending Appellate Ruling. Motion Hearing set for 7/26/2019 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 07/22/2019)

07/22/2019 231 ORDER granting 228 Motion to Seal. Signed by District Judge Leonie M. Brinkema on 07/22/2019. (dvanm, ) (Entered: 07/22/2019)

07/22/2019

232 ORDERED that the caption of this civil action be and is AMENDED to substitute"Richard V. Spencer, Acting Secretary of Defense" for "Patrick M. Shanahan, Acting Secretaryof Defense." Signed by District Judge Leonie M. Brinkema on 07/22/2019. (dvanm, ) (Entered: 07/22/2019)

07/22/2019

233 ORDERED that the hearing currently scheduled for defendants' motions to stay [1:18-cv-641, Dkt. No. 219; l:18-cv-1565, Dkt. No. 214] be and is CANCELLED. The Court will rule on defendants' motions once plaintiffs have filed a response or opposition. Signed by District Judge Leonie M. Brinkema on 07/22/2019. (dvanm, ) (Entered: 07/22/2019)

07/23/2019 234 EXHIBIT Second Supplemental Exhibit List by Nick Harrison, OutServe-SLDN, Inc... (Harding, John) (Entered: 07/23/2019)

07/24/2019

235 Opposition to 219 MOTION to Stay Summary Judgment and Trial Pending Appellate Ruling filed by Nick Harrison, OutServe-SLDN, Inc.. (Attachments: # 1 Exhibit A)(Harding, John) (Entered: 07/24/2019)

07/26/2019 236 RESPONSE in Support re 154 MOTION to Dismiss for Lack of Jurisdiction IN PART REDACTED COPY OF BRIEF AND

REDACTED EXHIBITS filed by Mark Esper, Richard V. Spencer, U.S. Department of Defense. (Attachments: # 1 Exhibit U through JJ REDACTED, # 2 Exhibit KK through AAA REDACTED)(McCotter, R.) (Entered: 07/26/2019)

07/26/2019

237 EXHIBIT Redacted Version of Exhibit B to (221) Plaintiffs' Supplemental Opposition to Defendants' Renewed Motion to Dismiss by Nick Harrison, OutServe-SLDN, Inc... (Harding, John) (Entered: 07/26/2019)

07/30/2019 238 MOTION to Withdraw as Attorney for Cyrus T. Frelinghuysen by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 07/30/2019)

07/31/2019 239 ORDER granting 238 Motion to Withdraw as Attorney.. Signed by District Judge Leonie M. Brinkema on 07/31/2019. (dvanm, ) (Entered: 07/31/2019)

07/31/2019

240 REPLY to Response to Motion re 154 MOTION to Dismiss for Lack of Jurisdiction IN PART REDACTED BRIEF AND EXHIBITS filed by Mark Esper, Richard V. Spencer, U.S. Department of Defense. (Attachments: # 1 Exhibit BBB to III REDACTED)(McCotter, R.) (Entered: 07/31/2019)

08/01/2019

241 ORDERED that the bench trial scheduled to begin on September 9, 2019 be and isCANCELLED; and it is further ORDERED that all proceedings in these civil actions be and are STAYED until further order of the Court. Signed by District Judge Leonie M. Brinkema on 08/01/2019. (dvanm, ) (Entered: 08/01/2019)

08/27/2019 242 MOTION to Withdraw as Attorney by Nick Harrison, OutServe-SLDN, Inc.. (Cooley, Laura) (Entered: 08/27/2019)

08/28/2019 243 ORDER granting 242 Motion to Withdraw as Attorney. Attorney Laura Joy Cooley terminated. Signed by District Judge Leonie M. Brinkema on 08/28/2019. (dvanm, ) (Entered: 08/28/2019)

09/03/2019 244 MOTION to Withdraw as Attorney for Anthony C. Pinggera by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 09/03/2019)

09/03/2019 245 ORDER granting 244 Motion to Withdraw as Attorney.. Signed by District Judge Leonie M. Brinkema on 09/03/2019. (dvanm, ) (Entered: 09/03/2019)

03/10/2020 246 Financial Interest Disclosure Statement (Local Rule 7.1) by Nick Harrison, OutServe-SLDN, Inc.. (Harding, John) (Entered: 03/10/2020)

03/10/2020 247 Consent MOTION to Substitute Party by Nick Harrison, OutServeSLDN, Inc.. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 03/10/2020)

03/11/2020

248 ORDER: Pursuant to Plaintiffs' consent motion, the Court hereby orders that: The Modem Military Association of America is substituted in place of OutServe-SLDN, Inc. in the above-captioned cases. The Clerk is requested to have the docket sheets reflect that OutServeSLDN, Inc. is no longer a party and the Modern Military Association of America is a Plaintiff. Signed by District Judge Leonie M. Brinkema on 3/11/20. (yguy) (Entered: 03/11/2020)

03/11/2020

249 ORDER: ORDERED that this civil action be and is UNSTAYED. Additionally, based on a telephone conference held on the record on March 5, 2020 withattorneys for all parties present, it is hereby ORDERED that plaintiffs file their motion for summary judgment on all counts, which is not to exceed 70 pages, no later than May 4, 2020; that defendants file their combined brief in opposition and cross-motion for summary judgment on all counts, which is not to exceed 70 pages, no later than June 3, 2020; that plaintiffs file their combined brief in opposition and reply brief, which is not to exceed 40 pages, no later than July 2, 2020; and that defendants file their reply brief, which is not to exceed 40 pages, no later than July 20, 2020. (see order for details) Signed by District Judge Leonie M. Brinkema on 3/11/20. (yguy) (Entered: 03/11/2020)

03/27/2020

250 MEMORANDUM OPINION: For the reasons stated above, the defendants' motions to dismiss [Harrison, 0kt. 154; Roe, Dkt. 118] will be denied by an Order to be issued with this Memorandum Opinion. Signed by District Judge Leonie M. Brinkema on 3/27/20. (yguy) (Entered: 03/27/2020)

03/27/2020

251 ORDER: For the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that the defendants' Renewed Motions to Dismiss [Harrison, Dkt. 154; Roe; 0kt. 118] be and are DENIED; and it is further ORDERED that the defendants correct the record to update the names of the defendants. Signed by District Judge Leonie M. Brinkema on 3/27/20. (yguy) (Entered: 03/27/2020)

05/04/2020

252 MOTION to Seal Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Summary Judgment and Exhibits 4, 11, 13, 14-19, 42, 49, 62 and 63 in Support of Their Motion for Summary Judgment by Nick Harrison, The Modern Military Association of America. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 05/04/2020)

05/04/2020 253 Notice of Filing Sealing Motion LCvR5(C) by Nick Harrison, The Modern Military Association of America re 252 MOTION to

Seal Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Summary Judgment and Exhibits 4, 11, 13, 14-19, 42, 49, 62 and 63 in Support of Their Motion for Summary Judgment (Harding, John) (Entered: 05/04/2020)

05/04/2020

254 Memorandum in Support re 252 MOTION to Seal Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Summary Judgment and Exhibits 4, 11, 13, 14-19, 42, 49, 62 and 63 in Support of Their Motion for Summary Judgment filed by Nick Harrison, The Modern Military Association of America. (Harding, John) (Entered: 05/04/2020)

05/04/2020

255 Sealed Document re 252 MOTION to Seal Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Summary Judgment and Exhibits 4, 11, 13, 14-19, 42, 49, 62 and 63 in Support of Their Motion for Summary Judgment. (Attachments: # 1 Exhibit 4, # 2 Exhibit 11, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17, # 8 Exhibit 18, # 9 Exhibit 19, # 10 Exhibit 42, # 11 Exhibit 49, # 12 Exhibit 62, # 13 Exhibit 63)(Harding, John) (Entered: 05/04/2020)

05/04/2020

256 MOTION for Summary Judgment by Nick Harrison, The Modern Military Association of America. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 05/04/2020)

05/04/2020

257 Memorandum in Support re 256 MOTION for Summary Judgment filed by Nick Harrison, The Modern Military Association of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, Part 1 of 3, # 45 Exhibit 44, Part 2 of 3, # 46 Exhibit 44, Part 3 of 3, # 47 Exhibit 45, # 48 Exhibit 46, # 49 Exhibit 47, # 50 Exhibit 48, # 51 Exhibit 49, # 52 Exhibit 50, # 53 Exhibit 51, # 54 Exhibit 52, # 55 Exhibit 53, # 56 Exhibit 54, # 57 Exhibit 55, # 58 Exhibit 56, # 59 Exhibit 57, # 60 Exhibit 58, # 61 Exhibit 59, # 62 Exhibit 60, # 63 Exhibit 61, # 64 Exhibit 62, # 65 Exhibit 63)(Harding, John) (Entered: 05/04/2020)

05/04/2020 258 Notice of Hearing Date set for July 31, 2020 re 256 MOTION for Summary Judgment (Harding, John) (Entered: 05/04/2020)

05/05/2020

Set Deadlines as to 256 MOTION for Summary Judgment . Motion Hearing set for 7/31/2020 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 05/05/2020)

05/08/2020

259 ORDER granting 252 Motion to Seal Plaintiffs' Memorandum in Support of Plaintiffs' Motion for Summary Judgment and Exhibits 4, 11, 13, 14-19, 42, 49, 62 and 63 in Support of Their Motion for Summary Judgment. Signed by District Judge Leonie M. Brinkema on 5/8/2020. (aott) (Entered: 05/08/2020)

05/27/2020

260 NOTICE of Appearance by Dennis Carl Barghaan, Jr on behalf of Mark Esper, Richard V. Spencer, U.S. Department of Defense (Barghaan, Dennis) (Entered: 05/27/2020)

05/27/2020 261 Joint MOTION for Leave to File Excess Pages by Mark Esper, Richard V. Spencer, U.S. Department of Defense. (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 05/27/2020)

05/27/2020

262 ORDER granting 261 Motion for Leave to File Excess Pages. It is further ORDERED that Defendants' combined opposition to Plaintiffs' partial summary judgment motion and cross motion for summary judgment shall not exceed 80 pages and Defendants' reply brief shall not exceed 30 pages. Signed by District Judge Leonie M. Brinkema on 5/27/2020. (dvanm, ) (Entered: 05/28/2020)

06/03/2020 263 MOTION for Summary Judgment by Mark Esper, Richard V. Spencer, U.S. Department of Defense. (Barghaan, Dennis) (Entered: 06/03/2020)

06/03/2020

264 Memorandum in Support re 263 MOTION for Summary Judgment , 256 MOTION for Summary Judgment , Memorandum in Opposition filed by Mark Esper, Richard V. Spencer, U.S. Department of Defense. (Attachments: # 1 Exhibit 1 (Part I), # 2 Exhibit 1 (Part II), # 3 Exhibit 1 (Part III), # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6)(Barghaan, Dennis) (Entered: 06/03/2020)

06/03/2020

265 EXHIBIT by Mark Esper, Richard V. Spencer, U.S. Department of Defense.. (Attachments: # 1 Exhibit 7, # 2 Exhibit 8, # 3 Exhibit 9, # 4 Exhibit 10, # 5 Exhibit 11, # 6 Exhibit 12, # 7 Exhibit 13, # 8 Exhibit 14, # 9 Exhibit 15, # 10 Exhibit 16, # 11 Exhibit 17, # 12 Exhibit 18, # 13 Exhibit 19, # 14 Exhibit 20, # 15 Exhibit 21, # 16 Exhibit 22, # 17 Exhibit 23, # 18 Exhibit 24, # 19 Exhibit 25)(Barghaan, Dennis) (Entered: 06/03/2020)

06/03/2020

266 EXHIBIT by Mark Esper, Richard V. Spencer, U.S. Department of Defense.. (Attachments: # 1 Exhibit 26, # 2 Exhibit 27 (Part I), # 3 Exhibit 27 (Part II), # 4 Exhibit 28, # 5 Exhibit 29, # 6 Exhibit 30, # 7 Exhibit 31, # 8 Exhibit 32, # 9 Exhibit 33, # 10 Exhibit 34, # 11 Exhibit 35, # 12 Exhibit 36, # 13 Exhibit 37, # 14 Exhibit 38, # 15 Exhibit 39, # 16 Exhibit 40, # 17 Exhibit 41, # 18 Exhibit 42, # 19 Exhibit 43, # 20 Exhibit 44, # 21 Exhibit 45, # 22 Exhibit 46)(Barghaan, Dennis) (Entered: 06/03/2020)

06/03/2020

267 EXHIBIT by Mark Esper, Richard V. Spencer, U.S. Department of Defense.. (Attachments: # 1 Exhibit 47, # 2 Exhibit 48, # 3 Exhibit 49, # 4 Exhibit 50, # 5 Exhibit 51, # 6 Exhibit 52, # 7 Exhibit 53, # 8 Exhibit 54, # 9 Exhibit 55, # 10 Exhibit 56, # 11 Exhibit 57, # 12 Exhibit 58, # 13 Exhibit 59, # 14 Exhibit 60)(Barghaan, Dennis) (Entered: 06/03/2020)

06/03/2020 268 Notice of Hearing Date set for 7/31/2020 re 263 MOTION for Summary Judgment (Barghaan, Dennis) (Entered: 06/03/2020)

06/03/2020

269 MOTION to Seal Certain Summary Judgment Filings by Mark Esper, Richard V. Spencer, U.S. Department of Defense. (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 06/03/2020)

06/03/2020 270 Memorandum in Support re 269 MOTION to Seal Certain Summary Judgment Filings filed by Mark Esper, Richard V. Spencer, U.S. Department of Defense. (Barghaan, Dennis) (Entered: 06/03/2020)

06/03/2020

271 Notice of Under Seal Filing LCvR5 (B) by Mark Esper, Richard V. Spencer, U.S. Department of Defense re 269 MOTION to Seal Certain Summary Judgment Filings (Barghaan, Dennis) (Entered: 06/03/2020)

06/03/2020 272 Sealed Memorandum in Support re 264 Memorandum in Support,, Memorandum in Opposition,. (Barghaan, Dennis) (Entered: 06/03/2020)

06/03/2020

273 Sealed Document re 264 Memorandum in Support,, Memorandum in Opposition,. (Attachments: # 1 Exhibit 15, # 2 Exhibit 25, # 3 Exhibit 28, # 4 Exhibit 30, # 5 Exhibit 31, # 6 Exhibit 44, # 7 Exhibit 58, # 8 Exhibit 60)(Barghaan, Dennis) (Entered: 06/03/2020)

06/03/2020 274 MOTION to Exclude Evidence by Mark Esper, Richard V. Spencer, U.S. Department of Defense. (Barghaan, Dennis) (Entered: 06/03/2020)

06/03/2020 275 Memorandum in Support re 274 MOTION to Exclude Evidence filed by Mark Esper, Richard V. Spencer, U.S. Department of Defense. (Attachments: # 1 Exhibit A)(Barghaan, Dennis) (Entered: 06/03/2020)

06/03/2020 276 Notice of Hearing Date set for 7/31/20 re 274 MOTION to Exclude Evidence (Barghaan, Dennis) (Entered: 06/03/2020)

06/04/2020

Set Deadlines as to 274 MOTION to Exclude Evidence, 263 MOTION for Summary Judgment . Motion Hearing set for 7/31/2020 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 06/04/2020)

06/04/2020 277 ORDER granting 269 Motion to Seal. Signed by District Judge Leonie M. Brinkema on 06/04/2020. (dvanm, ) (Entered: 06/04/2020)

06/10/2020

278 Consent MOTION for Extension of Briefing Deadlines by Nick Harrison, OutServe-SLDN, Inc., The Modern Military Association of America. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 06/10/2020)

06/10/2020

279 ORDERED that defendant's Motion to Exclude Evidence [Harrison, Dkt. 274; Roe, Dkt. 286] be and is DENIED; and it is further ORDERED that plaintiffs Motion for Extension of Briefing Deadlines [Harrison, Dkt. 279; Roe, Dkt. 290] be and is DENIED as moot. Signed by District Judge Leonie M. Brinkema on 06/10/2020. (dvanm, ) (Entered: 06/10/2020)

06/11/2020

280 NOTICE by Mark Esper, Richard V. Spencer, U.S. Department of Defense re 275 Memorandum in Support, 272 Sealed Memorandum in Support, 264 Memorandum in Support,, Memorandum in Opposition, of Errata (Attachments: # 1 Exhibit 22 (Refiled), # 2 Exhibit 35 (Refiled))(Barghaan, Dennis) (Entered: 06/11/2020)

06/22/2020

281 ORDERED that the hearing currently scheduled for Friday, July 31, 2020 at 10:00 a.m. be and is RESCHEDULED for Tuesday, August 4, 2020 at 11:00 a.m. Signed by District Judge Leonie M. Brinkema on 06/22/2020. (jlan) (Entered: 06/22/2020)

06/22/2020

Reset Hearing as to 256 MOTION for Summary Judgment , 263 MOTION for Summary Judgment . Motion Hearing set for 8/4/2020 at 11:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (jlan) (Entered: 06/22/2020)

07/02/2020

282 MOTION to Seal Plaintiffs' Combined Reply in Support of Plaintiffs' Motions for Summary Judgment and Opposition to Defendants' Motions for Summary Judgment and Exhibits 64, 70, and 76 by Nick Harrison, OutServe-SLDN, Inc., The Modern Military Association of America. (Attachments: # 1 Proposed Order)(Harding, John) (Entered: 07/02/2020)

07/02/2020

283 Memorandum in Support re 282 MOTION to Seal Plaintiffs' Combined Reply in Support of Plaintiffs' Motions for Summary Judgment and Opposition to Defendants' Motions for Summary Judgment and Exhibits 64, 70, and 76 filed by Nick Harrison, OutServe-SLDN, Inc., The Modern Military Association of America. (Harding, John) (Entered: 07/02/2020)

07/02/2020

284 Notice of Filing Sealing Motion LCvR5(C) by Nick Harrison, The Modern Military Association of America re 282 MOTION to Seal Plaintiffs' Combined Reply in Support of Plaintiffs' Motions for Summary Judgment and Opposition to Defendants' Motions for Summary Judgment and Exhibits 64, 70, and 76 (Harding, John) (Entered: 07/02/2020)

07/02/2020

285 Sealed Response/Reply/Opposition re 263 MOTION for Summary Judgment , 256 MOTION for Summary Judgment . (Attachments: # 1 Exhibit 64, # 2 Exhibit 70, # 3 Exhibit 76)(Harding, John) (Entered: 07/02/2020)

07/02/2020

286 Reply to Motion re 263 MOTION for Summary Judgment , 256 MOTION for Summary Judgment , RESPONSE in Opposition filed by Nick Harrison, OutServe-SLDN, Inc., The Modern Military Association of America. (Attachments: # 1 Exhibit 64 (Filed Under Seal), # 2 Exhibit 65, # 3 Exhibit 66, # 4 Exhibit 67, # 5 Exhibit 68, # 6 Exhibit 69, # 7 Exhibit 70 (Filed Under Seal), # 8 Exhibit 71, # 9 Exhibit 72, # 10 Exhibit 73, # 11 Exhibit 74, # 12 Exhibit 75, # 13 Exhibit 76 (Filed Under Seal))(Harding, John) (Entered: 07/02/2020)

07/06/2020 287 ORDER granting 282 Motion to Seal. Signed by District Judge Leonie M. Brinkema on 7/6/2020. (dvanm, ) (Entered: 07/06/2020)

07/20/2020

288 REPLY to Response to Motion re 263 MOTION for Summary Judgment filed by Mark Esper, Richard V. Spencer, U.S. Department of Defense. (Attachments: # 1 Exhibit Ex 61, # 2 Exhibit Ex 62, # 3 Exhibit Ex 63, # 4 Exhibit Ex 64 (Placeholder for Under Seal Ex), # 5 Exhibit Ex 65 (Placeholder for Under Seal Ex), # 6 Exhibit Ex 66, # 7 Exhibit Ex 67, # 8 Exhibit Ex 68, # 9 Exhibit Ex 69, # 10 Exhibit Ex 70, # 11 Exhibit Ex 71)(Barghaan, Dennis) (Entered: 07/20/2020)

07/20/2020 289 MOTION to Seal Certain Summary Judgment Reply Filings by Mark Esper, Richard V. Spencer, U.S. Department of Defense. (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 07/20/2020)

07/20/2020 290 Sealed Document re 288 Reply to Response to Motion, 289 MOTION to Seal Certain Summary Judgment Reply Filings. (Attachments:

# 1 Exhibit Ex 64, # 2 Exhibit Ex 65, # 3 Exhibit Ex 29 (erroneously omitted from Dkt. 273))(Barghaan, Dennis) (Entered: 07/20/2020)

07/20/2020

291 Memorandum in Support re 289 MOTION to Seal Certain Summary Judgment Reply Filings filed by Mark Esper, Richard V. Spencer, U.S. Department of Defense. (Barghaan, Dennis) (Entered: 07/20/2020)

07/20/2020

292 Notice of Under Seal Filing LCvR5 (B) by Mark Esper, Richard V. Spencer, U.S. Department of Defense re 289 MOTION to Seal Certain Summary Judgment Reply Filings (Barghaan, Dennis) (Entered: 07/20/2020)

07/21/2020 293 SO ORDERED re 289 Motion to Seal. Signed by District Judge Leonie M. Brinkema on 07/21/2020. (dvanm, ) (Entered: 07/21/2020)

07/30/2020

294 ORDER cancelling the summary judgment hearing currently scheduled for Tuesday, August 4, 2020 at 11:00 a.m; directing that a new date for the hearing will be set in the near future. Signed by Magistrate Judge Ivan D. Davis on 7/30/2020. (aott, ) (Entered: 07/30/2020)

07/30/2020

***Motion Hearing terminated- Per ECF 294*** (aott, ) (Entered: 07/30/2020)

08/06/2020

295 ORDER directing that the summary judgment hearing previously scheduled for Tuesday, August 4, 2020 be and is RESCHEDULED for Tuesday, August 18, 2020 at 2:00 p.m. Whether the hearing will be conducted in-person or remotely will be determined closer to the hearing date.Hearing set for 8/18/2020 at 02:00 PM before District Judge Leonie M. Brinkema. Signed by District Judge Leonie M. Brinkema on 8/6/2020. (aott, ) (Entered: 08/06/2020)

08/13/2020

296 ORDERED that the summary judgment hearing previously scheduled for Tuesday,August 18, 2020 at 2:00 p.m. be and is CONTINUED until Monday, September 14, 2020 at 10:00 a.m. The hearing will be conducted in person due to the importance of these actions. Signed by District Judge Leonie M. Brinkema on 08/13/2020. (dvanm, ) (Entered: 08/13/2020)

08/13/2020

Alexandria Reset Hearings: Summary Judgment Hearing set for 9/14/2020 at 10:00 AM in Alexandria Courtroom 701 before District Judge Leonie M. Brinkema. (dvanm, ) (Entered: 08/13/2020)

08/13/2020

Alexandria Reset Hearings: Summary Judgment Hearing set for 9/14/2020 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (dvanm, ) (Entered: 08/13/2020)

09/09/2020 297 NOTICE by Nick Harrison, OutServe-SLDN, Inc., The Modern Military Association of America of Related Case (Attachments: # 1 Exhibit A)(Harding, John) (Entered: 09/09/2020)

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 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

NICHOLAS HARRISON and OUTSERVE-SLDN, INC.

Plaintiffs,

v.

Case No. __________

JAMES N. MATTIS, in his official capacity as Secretary of Defense; MARK ESPER, in his official capacity as the Secretary of the Army; and the UNITED STATES DEPARTMENT OF DEFENSE,

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs Nicholas (“Nick”) Harrison and OutServe-SLDN, Inc. (“Plaintiffs”), by and

through their attorneys, hereby bring this action for declaratory and injunctive relief against

Defendants James Mattis, in his official capacity as the Secretary of Defense; Mark Esper, in his

official capacity as the Secretary of the Army; and the United States Department of Defense

(“Defendants”), challenging current military policies that discriminate against people living with

the human immunodeficiency virus (HIV).

STATEMENT OF THE CASE

1. For over thirty years, the military has placed broad restrictions on the service of people

living with HIV. Military regulations prohibit the enlistment or commissioning of any

individual living with HIV and place strict geographic limitations on the service of members

who first test HIV positive while on active duty. This action challenges the constitutionality

of these regulations that exclude or limit the military service of people living with HIV in

light of medical advancements rendering this diagnosis irrelevant to their ability to serve.

2. Scientific innovation and medical advances have radically changed the landscape of HIV treatment and prevention—as well as the ramifications of an HIV diagnosis and prognosis for people living with this condition. Antiretroviral medications first developed in the mid1990s prevent replication of the virus in a person’s bloodstream, halting progression of the disease and allowing the person’s immune system to resume normal functioning. Shortly after the introduction of antiretroviral therapy, medical researchers discovered that treatment of an HIV-negative person with the same medications before or after an exposure generally prevents an HIV infection from taking hold. As treatment with antiretroviral medications was refined over the following decade, researchers also discovered that those in successful treatment are incapable of transmitting HIV—a tremendous boon to prevention and overall public health.
3. These medical advances should have resulted in an overhaul of military policies related to people living with HIV. Instead, the Department of Defense and the Army maintained the bar to enlistment and appointment of people living with HIV, as well as the restrictions on deployment, when they revisited these policies in recent years.
4. Plaintiff Nick Harrison ran headlong into these policies in his quest to become a Judge Advocate General for the D.C. National Guard. After two tours of duty in the Middle East, Sgt. Harrison was diagnosed with HIV at about the same time that he passed the bar exam. Shortly after starting antiretroviral therapy, Sgt. Harrison’s HIV was completely under control; his physical capabilities were never affected in any way. A few years later, when he was selected to fill a position as an attorney in the Judge Advocate General Corps for the D.C. National Guard, Sgt. Harrison discovered that outdated military policies regarding
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people living with HIV would prevent him from being commissioned as an officer and from filling this position based in Arlington, Virginia. 5. The military’s outdated policies severely curtailing the service of people living with HIV are a violation of the equal protection guarantees of the U.S. Constitution. To make matters worse, the Department of Defense has recently issued guidance directing that all service members who are not considered worldwide deployable—which arguably is all service members living with HIV—for 12 consecutive months should be separated from military service. In spite of the military’s irrational restrictions, hundreds of individuals living with HIV—including Plaintiff Nick Harrison—have served honorably in the armed services after being diagnosed with HIV. If the military is not required to re-examine its recruitment, retention, and promotion policies and to bring them in compliance with the U.S. Constitution’s guarantee of equal protection of the laws, these individuals will be forced out of the military and countless others will never have the opportunity to serve their country, based solely on their HIV status. PARTIES 6. Plaintiff Sergeant Nick Harrison is a 41-year-old man living in Washington, D.C. He has been serving in the military for approximately eighteen years. Sgt. Harrison has been living with HIV since 2012. 7. Plaintiff OutServe-SLDN, Inc., formed through the merger of OutServe and the Servicemembers Legal Defense Network, is a nationwide, non-partisan, non-profit, legal services, watchdog and policy organization dedicated to bringing about full equality to America's military and to ending all forms of discrimination and harassment on the basis of HIV status, sexual orientation, and gender identity. OutServe-SLDN provides pro-bono
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advocacy and legal services for members of the military living with HIV, as well as members of the military who are LGBTQ. 8. Defendant Secretary James N. Mattis is the Secretary of the U.S. Department of Defense. He is ultimately responsible for the administration and enforcement of the Department’s service restrictions on people living with HIV, including the accessions bar for people living with HIV. 9. Defendant Mark Esper is the Secretary of the Army. As Secretary of the Army, he has command authority over the District of Columbia Army National Guard. He is ultimately responsible for the administration and enforcement of the regulations, both Department of Defense Instructions (DoDI) and Army Regulations (AR), within the Army and National Guard, and is therefore ultimately responsible for the administration and enforcement of the Department of the Army’s regulations regarding service members living with HIV. 10. The U.S. Department of Defense is an executive branch department of the U.S. federal government comprising the office of the Secretary of Defense; the Joint Chiefs of Staff; the Joint Staff; the Departments of the Army, Navy, and Air Force; the unified and specified combatant commands; such other offices, agencies, activities, and commands as may be established or designated by the President or by law; and all offices, agencies, activities, and commands under any of their control or supervision. Under the direction of Secretary Mattis, the Department of Defense is also responsible for administration and enforcement of the Department’s service restrictions on people living with HIV.
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JURISDICTION AND VENUE 11. Subject matter jurisdiction exists under 28 U.S.C. § 1331 because this action arises under,
is founded upon, and seeks to redress the deprivation of rights secured by the United States Constitution. 12. Venue is proper in the Eastern District of Virginia under 28 U.S.C. § 1391(e). On information and belief, a substantial portion of the events or omissions that gave rise to Plaintiff’s claim occurred in the Eastern District of Virginia. 13. This court has personal jurisdiction over Defendants because their enforcement of the service restrictions and the accessions bar for people living with HIV occurs within the Eastern District of Virginia. Furthermore, the application of the service restrictions prevented Plaintiff Nick Harrison from taking a post in Arlington, VA, and it was foreseeable that the application of those requirements as to Harrison would have an impact in this district.
FACTUAL ALLEGATIONS Background Information Regarding HIV 14. The landscape of HIV treatment and prevention, the ramifications of an HIV diagnosis,
and the prognosis for people living with HIV have all changed dramatically since the virus was first identified as the cause of Acquired Immune Deficiency Syndrome (AIDS) in the 1980s. 15. After gaining a foothold in the blood, the human immunodeficiency virus replicates within the cells of the body’s immune system and targets CD4 T-cells for destruction. CD4 T-cells are critical to the human body’s ability to fight infections. 16. If untreated, the virus replicates and multiplies to levels that allow it to reduce the quantity of CD4 T-cells, and the body becomes progressively more prone to illness. If left
5

untreated over a period of years, a person’s immune system can become so compromised that infections and conditions the body normally is able to fend off easily can take hold. These are known as “opportunistic infections.” 17. A person with fewer than 200 CD4 T-cells per milliliter of blood simultaneously with an opportunistic infection has progressed to the third stage of the disease and has an AIDS diagnosis. 18. Until 1996, although progressing at different rates after being diagnosed, people with HIV all had a terminal condition. 19. In 1996, everything changed. The advent of new antiretroviral medications to prevent the virus from replicating—used in combinations of three or four to prevent the ability of the virus to mutate and circumvent a single medication—transformed the landscape of HIV treatment and prevention and radically shifted health outcomes for people living with HIV. 20. The effectiveness of these antiretroviral medications is measured by the reduction in the number of copies of the virus in a milliliter of a person’s blood, which is referred to as the “viral load.” While a person in the acute or secondary stage of infection could have a viral load of 1 million or more, a person in successful treatment will have a viral load of less than 200, which is considered “virally suppressed,” or a viral load of less than 48-50, which is referred to as an “undetectable” viral load. (Current testing technologies are sensitive enough to detect lower levels of virus in the blood, but the nomenclature of “undetectable” is still applied to test results of less than 48-50 copies per milliliter of blood, which reflected the limit of sensitivity for earlier HIV testing technologies.) 21. With adherence to these new medications, people living with HIV are able to live in good health. Patients with an AIDS diagnosis—sometimes with a CD4 count of as low as one—
6

were literally brought back from the brink of death and restored to health through antiretroviral combination therapy. As the number of copies of HIV in a person’s system was reduced, CD4 T-cells counts grew and the immune system’s ability to fight off opportunistic infections was restored. For the first time, an AIDS diagnosis could be reversed. 22. Over time, researchers and clinicians were able to refine the use of these pharmaceuticals to make treatment adherence easier and health outcomes even better. Three (or four) medications were combined into one tablet that a person could take once a day (known as a “single tablet regimen” or STR) with no reduction in effectiveness. Though the side effects of the initial antiretroviral medications were generally tolerable, researchers developed new medications that had few or no discernible side effects for most people. The standard practice of waiting to provide antiretroviral medications until a patient began showing signs of immune system deterioration was modified to starting treatment with antiretroviral medications almost immediately after diagnosis, a recognition that the benefits of treatment far outweighed any negative consequences of being on these medications. 23. Today, though still incurable, HIV is a chronic, manageable condition rather than the terminal diagnosis it once was. In fact, a 25-year-old who is timely diagnosed and provided appropriate treatment has a life expectancy within four to six months of a 25-year-old who does not have HIV. 24. Furthermore, medical researchers have now established that a person with a suppressed viral load is incapable of transmitting HIV. Contrary to popular belief, even without viral suppression, HIV is not that easily transmitted. The Centers for Disease Control and Prevention (CDC) estimates that, in the absence of treatment or other preventive measures,
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such as condom use, the risk of HIV transmission through a single act of receptive anal sex— the riskiest sexual activity—is approximately 1.38%. See Centers for Disease Control and Prevention, HIV Risk Behaviors: Estimated Per-Act Probability of Acquiring HIV from an Infected Source, by Exposure Act, www.cdc.gov/hiv/risks/estimates/riskbehaviors.html (last updated Dec. 4, 2015). The per-act risk of transmission for other sexual activities is between zero and .08%. And. with adherence to HIV medications and the resulting viral suppression, the risk of transmission is essentially zero for any sexual activity. See Centers for Disease Control and Prevention, Treatment as Prevention, www.cdc.gov/hiv/risk/art/ (last updated May 7, 2018). Antiretroviral treatment therefore not only dramatically improves personal health outcomes, but also improves public health outcomes by reducing transmission and the number of new cases. 25. Transmission of HIV is extremely rare outside of the context of sexual activity, sharing of injection drug equipment, blood transfusion, needle sticks, or perinatal exposure (including breastfeeding). For all other activities—including biting, spitting, and throwing of body fluids—the CDC characterizes the risk as “negligible” and further states that “HIV transmission through these exposure routes is technically possible but unlikely and not well documented.” See Centers for Disease Control and Prevention, HIV Risk Behaviors: Estimated Per-Act Probability of Acquiring HIV from an Infected Source, by Exposure Act, www.cdc.gov/hiv/risks/estimates/riskbehaviors.html (last updated Dec. 4, 2015). The theoretical possibility of HIV transmission in these other contexts is eliminated entirely by adherence to medications and the viral suppression that results. 26. Despite the tremendous breakthroughs in the treatment and prevention of HIV, people living with HIV continue to be subjected to stigma, ostracization, and discrimination rooted
8

in misconceptions, fear, and ignorance that are deeply rooted in the psyche of the American public. Current Military Regulations Regarding HIV 27. In 1991, five years before the advent of effective antiretroviral combination therapy, the Department of Defense issued its first version of Instruction 6485.01. See Dep’t of Defense, Instruction No. 6485.01, (June 7, 2013), http://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/648501p.pdf (“DoDI 6485.01”), which elucidated the Department’s policies with respect to people living with HIV. 28. DoDI 6485.01 officially made people living with HIV ineligible for appointment, enlistment, pre-appointment, or initial entry training for military service. Though this Instruction regarding “HIV in Military Service Members” has been adjusted and tweaked in various ways over the years, these core policies regarding enlistment and appointment have remained the same since 1991. 29. Service members who first test HIV positive while on active duty are permitted to continue serving “in a manner that ensures access to appropriate medical care.” DoDI 6485.01, Encl. 3, ¶ 2.c. Except for the Navy, which under some circumstances allow deployment to foreign bases and select vessels, the other branches of the armed services have interpreted DoDI 6485.01 as requiring stationing of service members living with HIV strictly within the continental United States. 30. Lending support to those interpretations of DoDI 6485.01, Department of Defense Instruction 6490.07 specifically identifies HIV as a medical condition that limits a service member’s deployability. Dep’t of Defense, Instruction No. 6490.07, (Feb. 5, 2010),
9

https://www.dcms.uscg.mil/Portals/10/CG1/cg112/cg1121/docs/pdf/MedicalConditionsDeployments.pdf (“DoDI 6490.07”). Under DoDI 6490.07, a service member living with HIV should not be deployed on a “contingency deployment” (i.e., located outside the continental United States) unless a medical waiver is granted after consultation with the Combatant Command surgeon. See DoDI 6490.07, Encl. 3, ¶ e (2). 31. Army Regulation 600-110, Identification, Surveillance, and Administration of Personnel Infected with Human Immunodeficiency Virus (Apr. 22, 2014) https://www.army.mil/e2/downloads/rv7/r2/policydocs/r600_110.pdf (“AR 600-110”) is the Department of the Army’s implementation of DoDI 6485.01. It includes rules for both active duty Army and Army Reserve/National Guard service members. 32. AR 600-110 implements a blanket prohibition on the accession of individuals living with HIV. See AR 600-110, ch. 1-16.a and ch. 5. The Regulation defines “accession” as enlistment in either the Army or Reserves, appointment as a West Point cadet, or one’s first appointment as a commissioned officer in either the Army or Reserves. See AR 600-110, ch. 5.2.a. 33. AR 600-110 also implements the deployment restrictions on service members who seroconvert while on active duty. Absent a medical waiver, service members living with HIV may be stationed only in the continental United States, Alaska, Hawaii, Guam, Puerto Rico, or the U.S. Virgin Islands. See AR 600-110, ch. 1-16.f. On information and belief, waivers of this deployment restriction are granted rarely, if ever. 34. Service members living with HIV may be separated medically if they “demonstrate progressive clinical illness or immunological deficiency as determined by medical
10

authorities.” AR 600-110, ch. 6-15. However, under AR 600-110, a service member cannot be discharged from the Army or Army Reserves solely because of their HIV-positive status. See id., ch. 1-16.e. 35. An enlisted service member who is seeking a first commission as an officer must meet the Army’s accession standards. 36. The Department of Defense provides appropriate health care to all active duty service members, including new recruits, enlisted personnel, officers and those in training at service academies, as well as members of the National Guard. 37. The Department of Defense recently issued interim policy guidance via a memo that has made it effectively impossible for people living with HIV to serve their country as members of the military. Dep’t of Defense, Interim Guidance: DoD Retention Policy for NonDeployable Service Members (Feb. 14, 2018) https://www.defense.gov/Portals/1/Documents/pubs/DoD-Universal-Retention-Policy.pdf (“Retention Policy”). On February 14, 2018, the Department of Defense issued a memo announcing a new policy applicable to non-deployable service members. According to the new Retention Policy, service members who have been classified as non-deployable for more than 12 consecutive months shall be discharged absent a waiver. The Retention Policy is based on “the underlying premise that all Service members are expected to be world-wide deployable.” Under the regulations of both the Department of Defense and the Department of the Army, all service members living with HIV currently serving in the Army are by default non-deployable. On information and belief, the same is true for every other branch of the Armed Forces.
11

38. The Retention Policy, in tandem with existing Department of Defense Instructions and Army Regulations, creates a de facto prohibition against individuals living with HIV serving in the Army, absent a special waiver allowing them to deploy.
39. In fact, the Retention Policy, in tandem with existing instructions and regulations, creates a de facto prohibition against individuals living with HIV serving in any branch of the armed forces in any capacity, absent a special waiver allowing them to deploy.
Plaintiff Nick Harrison’s Quest to Become an Officer in the JAG Corps 40. Plaintiff Nicholas Harrison has had a long and honorable career in the armed services.
Originally from Oklahoma, he joined the U.S. Army in 2000, at the age of 23, and after basic training, spent three years stationed in Alaska. 41. In 2003, Sgt. Harrison was discharged from active duty and joined the Army Reserves, returning to Oklahoma to become a member of the Oklahoma National Guard and to focus on his education. 42. In 2005, Sgt. Harrison received a bachelor’s degree from the University of Central Oklahoma and enrolled in law school at Oklahoma City University later that year. By the end of his first semester of law school, Sgt. Harrison was the top student in his class. 43. Sgt. Harrison’s legal education was interrupted, however, when his National Guard unit deployed to Afghanistan for sixteen months starting in March 2006. In Afghanistan, a combat zone at the time, Sgt. Harrison’s unit deployed in support of Operation Enduring Freedom. Sgt. Harrison was recognized for his meritorious service with the Army Commendation Medal. 44. When he returned from active duty, Sgt. Harrison was able to secure a transfer to the University of Oklahoma College of Law, but it required repeating his entire first year,
12

because he had not completed the second semester at Oklahoma City University before deploying to Afghanistan. 45. Undeterred by this additional hurdle, Sgt. Harrison matriculated to the University of Oklahoma, continued to perform well academically, and received both his J.D. and his M.B.A. from there in 2011. Both his undergraduate and graduate degrees were financed almost exclusively by the Army. 46. Before he was able to sit for the bar, however, Sgt. Harrison was deployed for a second tour of duty in 2011, this time to Kuwait. In Kuwait, his unit was engaged in security for convoys withdrawing from Iraq. 47. Shortly after returning from his second tour of duty in 2012, Sgt. Harrison was diagnosed with HIV at an Army medical facility after preliminarily testing HIV positive at an offsite testing location. 48. Sgt. Harrison was immediately placed on antiretroviral combination therapy, and soon thereafter, he had an undetectable viral load. He has been virally suppressed or had an undetectable viral load ever since that time. 49. After Sgt. Harrison passed the Oklahoma bar exam, Colonel Elliot of the Oklahoma National Guard offered him a position as a Judge Advocate General (JAG) officer for the Oklahoma National Guard. At nearly the same time, Sgt. Harrison was offered a coveted position as a Presidential Management Fellow in Washington, D.C. 50. Because he could not do both (though he offered to attempt to do so by commuting from Washington, D.C. to Oklahoma for his duty weekends), Sgt. Harrison moved to Washington, D.C., transferred to the D.C. National Guard, and engaged in the Presidential Management Fellow (PMF) program.
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51. While living in Washington, D.C. and serving in the PMF program in 2013, Sgt. Harrison applied for a position in the Judge Advocate General’s office for the D.C. National Guard. After a relatively short application and interview process, Harrison was chosen for an open position in the JAG Corps for the D.C. National Guard. Impressed with his experience stationed in combat zones overseas, the recruiters at the D.C. National Guard informed Sgt. Harrison he would be commissioned with the rank of captain.
52. Unlike regular members of the JAG Corps, who are commissioned as officers before being stationed, applicants for JAG positions with the National Guard are assessed and qualified as officers after securing a particular position. In keeping with that policy and practice, Sgt. Harrison began the process of assessment and qualification with the assistance of First Lieutenant Nicole Ono, the Regional Specialty Branch Recruiter in the recruitment office of the D.C. National Guard.
53. During his commissioning medical exam, conducted in March 2014, Sgt. Harrison received the top rating in every category. Referred to as the PULHES score (shorthand for its testing categories: Physical stamina, Upper extremities, Lower extremities, Hearing/ears, Eyes, and Psychiatric), Sgt. Harrison received the best possible score: i.e., a rating of one (on a scale of one to four) in every category. Nonetheless, he was classified as “non-deployable” based on his HIV status.
54. First Lt. Ono and Sgt. Harrison determined that Sgt. Harrison would need to seek a medical waiver regarding his HIV status to commission as an officer. Sgt. Harrison provided the necessary materials for the waiver application to First Lt. Ono, who submitted them through the appropriate channels.
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55. After approximately five months, Sgt. Harrison’s waiver application was denied by the Chief Surgeon of the Army National Guard via a memorandum dated December 30, 2014.
56. If a medical waiver is denied, the next available option is to submit a request for an exception to policy (“ETP”) from the appropriate level of authority. Having been denied a medical waiver, Sgt. Harrison wrote a memorandum letter to the Under Secretary of Defense for Personnel and Readiness, routed through the Army Deputy Chief of Staff (G-1), seeking an ETP allowing him to commission.
57. On March 19, 2015, Sgt. Harrison received a response from the Office of the Assistant Secretary of Defense for Readiness and Force Management, to whom the Under Secretary had delegated the responsibility of responding, identifying the relevant regulations that prohibited him from serving, but not explicitly denying his ETP request.
58. Sgt. Harrison’s request for an ETP was forwarded to Lt. Col. Conreau Williams, Chief Health Promotions Officer, in the Office of the Deputy Chief of Staff, G-1. In an email dated March 24, 2015, Lt. Col. Williams offered to assist Sgt. Harrison with his ETP request.
59. Sgt. Harrison pulled together all of the necessary materials to support his request for an ETP, and Lt. Col. Williams submitted the ETP packet for approval to the Office of the Army Surgeon General.
60. After securing the necessary approval from the Office of the Army Surgeon General, the process included legal review by the Office of the Judge Advocate General before submission to the Deputy Chief of Staff for the Army (G-1) for approval or disapproval.
61. However, it was determined that prior to legal review and submission to the Deputy Chief of Staff, Sgt. Harrison would need to secure sign-off for the ETP request at each level of his chain of command. Sgt. Harrison secured the necessary sign-off at every level, and the
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ETP packet was submitted to the Deputy Chief of Staff for the Army (G-1) for approval in the first week of December 2015. 62. On June 29, 2016, the Deputy Chief of Staff for the Army denied Sgt. Harrison’s request, giving no explanation other than that the request was “not in the best interest of the Army.” 63. On July 21, 2016, Sgt. Harrison elevated his request to the Under Secretary of Defense for Personnel and Readiness. His ETP request was denied by the Under Secretary on July 26, 2016, citing the Department of Defense Instructions and Army Regulations regarding accessions and people living with HIV as the reason for the denial. 64. Sgt. Harrison subsequently submitted an application for review and correction to the Army Board for the Correction of Military Records (ABCMR). Harrison was informed by the Army Review Boards Agency on March 17, 2017, that it is currently taking a year or more for cases to be completed for presentation to the ABCMR. As of this filing, Sgt. Harrison has not received a disposition of his application before the ABCMR. 65. Sgt. Harrison is now 41 years old, and the JAG Corps requires that a newlycommissioned JAG officer be able to complete 20 years of active duty as a commissioned officer before reaching the age of 62. For most people, this means they must commission before the age of 42. 66. If Sgt. Harrison had not run up against the accessions bar for people living with HIV and had instead been qualified in the normal course, he would have commissioned as an officer in the JAG Corps for the D.C. National Guard in or about September 2014. This was approximately four and a half years before Sgt. Harrison reaches the age of 42.
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67. Based on prior years of active duty service, the Army often waives the age restriction and raises the age limit for accession as an officer accordingly. As of the date of this filing, Sgt. Harrison has accrued approximately five years of active duty service, which would raise to 47 the age by which he would need to commission as a JAG Corps officer.
68. Sgt. Harrison is a member of OutServe-SLDN. 69. OutServe-SLDN has over 7,000 members—veterans, active-duty service members, and
civilian Department of Defense workers throughout the world who identify as LGBTQ or are living with HIV—and more than 54,000 supporters. It operates more than 54 chapters worldwide, including 35 in the United States covering every region of the country. It has 20 additional special group forums, one of which is the “Positive Forum” for people living with HIV. 70. In this action, OutServe-SLDN represents the interest of its members currently living with HIV, including Sgt. Harrison, as well as those who may acquire HIV in the future, and therefore are or will be adversely affected by the challenged regulations and policies.
CAUSE OF ACTION VIOLATION OF EQUAL PROTECTION
(Facial and As-Applied Challenge) 71. The Fifth Amendment to the United States Constitution provides that no person shall be
deprived of life, liberty, or property without due process of law. The Due Process Clause includes within it a prohibition against the denial of equal protection by the federal government, its agencies, its officials or its employees. 72. Defendants’ accessions policies and practices discriminate impermissibly against people living with HIV both on their face and as applied by barring people living with HIV from
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enlistment in the military and appointment as an officer in the military based solely on their HIV status. 73. Defendants routinely permit similarly situated individuals who are not HIV positive, including but not limited to people with comparable chronic, manageable conditions, to enlist in the military and to commission as officers, including for positions such as attorney in the Judge Advocate General Corps for the D.C. National Guard. 74. Defendants have refused to grant Plaintiff Nick Harrison a commission as an officer serving as an attorney in the Judge Advocate General Corps for the D.C. National Guard based solely on his HIV status. 75. Although some individuals living with HIV may qualify under certain statutory schemes as having a disability or as being disabled, discrimination targeting people based on their HIV-positive status warrants a more rigorous degree of scrutiny than was described in City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). 76. Government discrimination against individuals living with HIV bears all the indicia of a suspect classification requiring heightened scrutiny by the courts.
a. People living with HIV have suffered through a unique history of misinformation, stigma and discrimination for decades, and continue to suffer such discrimination to this day.
b. People living with HIV are a discrete and insular group and lack the political power to protect their rights through the legislative process. A small minority of the overall population is currently living with HIV. People living with HIV fear to disclose their status, rarely choose to live openly with HIV, and continue to lack representation at any level of the federal government. For the first decade of the HIV epidemic, the
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needs of people living with and at higher risk for HIV were ignored and/or not adequately resourced by federal, state, and local governments. Even today, many people living with HIV do not have access to care, and there are aspects of the criminal law that unfairly single out and discriminate against people living with HIV. c. Particularly in light of dramatic medical advances—the benefits of which have only recently been fully understood and documented—a person’s HIV status bears no relation to that person’s ability to contribute to society. d. Even with medical treatment rendering their viral load undetectable, a person cannot change their HIV status. While HIV is treatable and manageable, it is not curable. There is no available course of treatment that a person could undergo to change their status as a condition of equal treatment. 77. Defendants’ disparate treatment of Plaintiff Nick Harrison and other individuals living with HIV deprives them of their right to equal dignity and stigmatizes them as second-class citizens in violation of equal protection guarantees. 78. There is no longer a valid purpose for this disparate treatment, and neither is the classification at issue—HIV status—adequately tailored in service of any governmental interest. This disparate treatment is not even rationally related to a legitimate governmental interest, let alone is there an important or compelling governmental interest to justify it. Thus, the enlistment ban and service restrictions cannot withstand any form of scrutiny and are invalid.
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PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court: 1. Issue a judgment, pursuant to 28 U.S.C. §§ 2201-02, declaring the service restrictions and accessions bar unconstitutional on their face and as applied to Plaintiff; 2. Enjoin Defendants, their agents, employees, representatives, successors, and any other person or entity subject to their control or acting directly or indirectly in concert with them from enforcing the accessions bar or service restrictions, including by enjoining any separation, discharge, adverse action, or denial of promotion, reenlistment, continuation of service, accession, or appointment because an individual is living with HIV. 3. Require the Army to retroactively commission Plaintiff Nick Harrison as an officer with the rank of captain in the Judge Advocate General Corps for the District of Columbia National Guard as of September 2014, or require the Army to waive any age restrictions and to commission Plaintiff now as an officer in the Judge Advocate General Corps for the District of Columbia National Guard at the rank to which he would have advanced as of the conclusion of this litigation had he commissioned as a captain in September 2014. 4. Award Plaintiffs costs, expenses, and reasonable attorneys’ fees pursuant to 28 U.S.C. § 2412 and any other applicable laws; and 5. Grant any injunctive or other relief that this Court deems just, equitable, and proper.
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Dated: May 30, 2018.

Scott A. Schoettes* SSchoettes@lambdalegal.org LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 105 W. Adams, Suite 2600 Chicago, IL 60603 T: (312) 663-4413
Anthony Pinggera* APinggera@lambdalegal.org LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 4221 Wilshire Blvd, Suite 280 Los Angeles, CA 90010 T: (213) 382-7600
Peter E. Perkowski* PeterP@outserve.org OUTSERVE-SLDN, INC. P.O. Box 65301 Washington, DC 20035-5301 T: (800) 538-7418
* motion for pro hac vice admission pending

Andrew R. Sommer Virginia State Bar No. 70304 ASommer@winston.com Cyrus T. Frelinghuysen* CFrelinghuysen@winston.com John W.H. Harding Virginia State Bar No. 87602 JWHarding@winston.com WINSTON & STRAWN LLP 1700 K St., NW Washington, DC 20006 T: (202) 282-5000

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