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Harrison v. Shanahan

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

May 22, 2019

NICHOLAS HARRISON, et al., Plaintiffs,
PATRICK M. SHANAHAN, in his official capacity as Acting Secretary of Defense, et al., Defendants.


          Leonie M. Brinkema, United States District Judge.

         Nicholas Harrison ("Harrison") and OutServe-SLDN, Inc. ("OutServe")[1] (together, "plaintiffs") bring this civil action against the U.S. Department of Defense ("DoD"), the Secretary of Defense, and the Secretary of the Army (collectively, "defendants"), challenging the constitutionality of the DoD and Army policies governing servicemembers living with the human immunodeficiency virus ("HIV").[2] Before the Court is a dispute related to 330 documents for which defendants[3] have asserted the "deliberative process" privilege.[4] After several hearings, extensive briefing, and an in camera review of a random selection of 33 of the disputed documents, the magistrate judge found that the documents either were not subject to the deliberative process privilege or should be produced to plaintiffs under the balancing framework set out in Cipollone v. Liggett Group. Inc.. Nos. 86-1198, 86-1223, 1987 WL 36515 (4th Cir. Feb. 13, 1987). The magistrate judge accordingly granted plaintiffs' motion to compel production of all 330 of the disputed documents. Defendants timely objected to the magistrate judge's ruling under Rule 72(a) of the Federal Rules of Civil Procedure. For the reasons that follow, defendants' objection will be sustained in part and overruled in part, the magistrate judge's order will be affirmed in part and reversed in part, and plaintiffs' motion to compel will be granted in part and denied in part.



         Harrison enlisted in the U.S. Army in 2000. Compl. for Declaratory & Inj. Relief [Dkt. No. 1] ("Compl.") ¶ 40. Three years later, he was discharged from active duty and became a member of the Army Reserves, joining the Oklahoma National Guard and pursuing first an undergraduate degree and then a law degree. Id. ¶¶ 41-42. Although his legal studies were interrupted by a 16-month deployment to Afghanistan beginning in early 2006, Id. ¶ 43, he ultimately received a J.D., as well as an M.B.A., from the University of Oklahoma in 2011, Id. ¶ 45. In 2011, he was also deployed for a second tour of duty, this time to Kuwait. Id. ¶ 46. In 2012, after returning from that tour, Harrison was diagnosed with HIV. Id. ¶ 47. He immediately began antiretroviral therapy, and soon his "viral load"-the number of copies of the HIV virus per milliliter of his blood-was "undetectable" or "suppressed," a status he has maintained ever since. Id. ¶ 48.

         Harrison was first offered a position as a Judge Advocate General ("JAG") officer when he passed the Oklahoma bar exam. Compl. ¶ 49. Although he turned that offer down to take part in the Presidential Management Fellow program in Washington, D.C., he soon applied for a similar JAG position with the D.C. National Guard. Id. ¶¶ 50-51. Harrison was told that he would be commissioned as a JAG officer, with the rank of captain, so long as he satisfied the Army's accessions standards, which are applied to commissioning as well as enlisting servicemembers, see id ¶ 52; however, Harrison had a problem. The Army's accessions policy flatly prohibits any HIV-positive individual from enlisting, or by extension from being commissioned as an officer, in the active or reserve components of the Army. See Id. ¶¶ 32, 35. Although Harrison received the highest possible score in every component of his medical exam, he was nonetheless classified as nondeployable based solely on his HIV-positive status and was denied commissioning. Id. ¶ 53. He attempted to secure a medical waiver and an exception to policy ("ETP") granting him relief from that across-the-board prohibition but was unsuccessful. Id. ¶¶ 54-63. Equally unsuccessful was his petition to the Army Board for Correction of Military Records, which was rejected nearly two years after it had been filed. See Id. ¶ 64 (detailing his petition); Roe v. Shanahan, 359 F.Supp.3d 382, 404 (E.D. Va. 2019) (describing the results of Harrison's petition), appeal docketed. No. 19-1410 (4th Cir. Apr. 18, 2019).

         Harrison and OutServe, an organization representing the interests of veterans and active-duty servicemembers who are LGBTQ or HIV positive, filed this suit in May 2018, arguing that the DoD and Army policies governing the accession, and thus the enlistment or commissioning, of individuals living with HIV-particularly DoD Instruction ("DoDI") 6485.01[6] and Army Regulation ("AR") 600-110[7]-violate the equal protection component of the Fifth Amendment's Due Process Clause, both on their face and as applied to Harrison.[8] Plaintiffs seek declaratory and injunctive relief, litigation costs and expenses, and their attorneys' fees.


         In late January 2019, plaintiffs moved to compel defendants to produce approximately 1, 500 documents that defendants were withholding based on the deliberative process privilege.[9]The contested categories of discovery included "documents and information considered or relied upon in the drafting or updating of [the Armed Forces'] regulations pertaining to HIV" and those "considered or relied upon in drafting two DoD reports to Congress regarding DoD's HIV policies." Dkt. No. 108, at 2. Plaintiffs advanced two principal arguments in their motion to compel: first, that the deliberative process privilege did not apply at all because "the government's intent is at issue"; and, second, that even if the privilege did apply, it should yield because the "need for the withheld discovery outweighs any potential interests served by the privilege." Id. at 1-2. For their part, defendants objected that plaintiffs were seeking an inappropriate "across-the-board ruling" and "ha[d] not identified specific documents ... in any meaningful way." Dkt. No.111, at 2-3. Defendants also insisted that their invocation of the privilege was proper under the balancing analysis set forth in governing Fourth Circuit precedent. See Id. at 7-9, 11-21. Specifically, they argued that the withheld information was categorically irrelevant to plaintiffs' claims; that relevant evidence was available from other sources; and that an order requiring defendants to disclose the withheld documents would subvert the purposes of the deliberative process privilege and hinder the frank discussions necessary for effective policymaking.

         The magistrate judge held several hearings on plaintiffs' motion to compel. At the first hearing, he declined to address defendants' argument about the government's intent, stating that the issue of which level of scrutiny should apply was better left "for trial." Tr. of Mot. Hr'g [Dkt. No. 115] ("Feb. 1, 2019 Tr.") 7. The magistrate judge observed that the parties had not engaged in a good-faith effort to examine each document individually and held the motion in abeyance to enable the parties to meet and confer again. Id. at 16-17. The parties met and resolved more issues but were unable to reach an agreement on most of the contested documents. Nonetheless, the parties proposed a solution: They would submit for in camera review "a representative sample of several documents from each of 15 separate categories" that had been identified by defendants. Joint Status Report [Dkt. No. 116] 2-3.[10] The magistrate judge accepted the parties' proposal and ordered that the parties produce the sample by February 12, 2019. Defendants prepared the sample, which comprised 32 documents and one DVD containing an audio recording of a working group session, and delivered it to the magistrate judge's chambers on that date.

         The magistrate judge held a second hearing on the motion to compel in which he raised several issues with the parties based on his in camera review, including whether some of the documents contained factual or nondeliberative material not subject to the privilege and whether the privilege had been waived with respect to draft documents for which final versions were publicly available. The magistrate judge also observed that defendants' privilege log did not provide specific, individualized explanations as to why the privilege had been asserted for each document, relying instead on "coined phrase[s]" or "buzzwords." Tr. of Mot. Hr'g [Dkt. No. 125] ("Feb. 22, 2019 Tr.") 30, 33-35. The magistrate judge gave the parties a final opportunity to meet and confer to reduce the scope of their disagreement. Id. at 49-50. The parties subsequently advised the magistrate judge that although they had reached agreement as to all but 330 of the documents, they were unable to reduce the dispute further, and they asked the magistrate judge "to swiftly issue an order." Joint Status Report [Dkt. No. 126] 1-2.

         The magistrate judge granted plaintiffs' motion to compel as to the remaining 330 disputed documents on March 14, 2019. The order articulated multiple grounds for the ruling, including that defendants had not demonstrated that all of the withheld documents were deliberative in nature, Order [Dkt. No. 128] 1-2; that under the four-part balancing test articulated in Cipollone v. Liggett Group. Inc.. Nos. 86-1198, 86-1223, 1987 WL 36515 (4th Cir. Feb. 13, 1987), defendants' assertion of the privilege should yield in favor of plaintiffs' interest in the relevant and otherwise discoverable information, Id. at 2-3; and that the privilege had been waived with respect to withheld draft documents that were "substantially identical" to the final, publicly available versions of those documents, Id. at 3. Defendants timely objected to the magistrate judge's ruling under Rule 72(a) of the Federal Rules of Civil Procedure.


         Upon a timely objection to a magistrate judge's nondispositive ruling, the district court "must... modify or set aside any part of the order that is clearly erroneous or is contrary to law." Fed.R.Civ.P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). The deferential clear-error standard provides that factual portions of the magistrate judge's ruling may be set aside where, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Bruce v. Hartford, 21 F.Supp.3d 590, 593-94 (E.D. Va. 2014) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Questions of law, on the other hand, are reviewed under the contrary-to-law standard, which is essentially synonymous with de novo review. See Id. at 594. But see In re Outsidewall Tire Litig.. 267 F.R.D. 466, 470 (E.D. Va. 2010) (observing that "decisions of a magistrate judge concerning discovery disputes and scheduling should be afforded great deference" (internal quotation marks and citation omitted)). The Court is "entitled to affirm on any ground appearing in the record, including theories not relied upon or rejected by" the magistrate judge. Cf. Scott v. United States, 328 F.3d 132, 137 (4th Cir. 2003).


         The law affords a qualified privilege to "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." NLRB v. Sears, Roebuck & Co.. 421 U.S. 132, 150 (1975) (internal quotation marks and citation omitted). This "deliberative process" privilege rests on the notion that "officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance 'the quality of agency decisions' by protecting open and frank discussion among those who make them within the Government." Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001) (internal citation omitted) (quoting Sears, Roebuck, 421 U.S. at 151); see also Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) ("The privilege ... serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action.").

         The deliberative process privilege is limited in two relevant ways. First, as a threshold matter, it applies only to those portions of documents that are predecisional and deliberative in nature. For instance, it does not shield statements about a policy after the policy has been finalized, and it "does not protect purely factual information, unless it is inextricably intertwined with deliberative material." Stone v. Trump,356 F.Supp.3d 505, 514 (D. Md. 2018) (citing City of Virginia Beach v. U.S. Dep't of Commerce,995 F.2d 1247, 1253 (4th Cir. 1993)). Second, "[w]hen a party ... seeks agency materials, the validity of the privilege 'depends ... upon a balancing of the public interest in nondisclosure with the need for the information as evidence.'" Cipollone v. Liggett Grp. Inc., Nos. 86-1198, 86-1223, 1987 WL 36515, at *2 (4th Cir. Feb. 13, 1987) (per curiam) (third alteration in original) (citation omitted). "In striking this balance, the common law of discovery [has] developed a number of factors for the court to consider, including: (1) the relevance of the evidence to the lawsuit; (2) the availability of alternative evidence on the same matters; ...

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