Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Manker v. Spencer

United States District Court, D. Connecticut

November 15, 2018

TYSON MANKER, on behalf of himself and all others similarly situated, and NATIONAL VETERANS COUNCIL FOR LEGAL REDRESS, on behalf of itself, its members, and all others similarly situated, Plaintiffs,
v.
RICHARD V. SPENCER, Secretary of the Navy, Defendant.

          RULING ON PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiffs bring this class action on behalf of Navy and Marine Corps veterans who were allegedly denied discharge upgrades by the Naval Discharge Review Board in a manner violative of the Administrative Procedure Act and the Fifth Amendment. Plaintiffs move this Court to certify "a proposed class consisting of all Navy, Navy Reserve, Marine Corps, and Marine Corps Reserve veterans of the Iraq and Afghanistan Era who: (a) were discharged with less than honorable discharges[;] (b) have not received discharge upgrades to Honorable; [and] (c) have diagnoses of PTSD, TBI, or PTSD-related conditions, or records documenting one or more symptoms of PTSD, TBI, or PTSD-related conditions at the time of discharge, attributable to their military service." Doc. 12 at 1. This Ruling resolves the motion.

         I. STANDARD OF REVIEW

         "The party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23's requirements has been met." Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010). The Court may "accept the complaint allegations as true in a class certification motion." Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656, 661 n.15 (2d Cir. 1978).

         "[A] district court may only certify a class if it 'is satisfied, after a rigorous analysis,' that the requirements of Rule 23 are met." In re Am. Int'l Grp., Inc. Sec. Litig., 689 F.3d 229, 237-38 (2d Cir. 2012) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011)). However, "[r]ule 23 is given liberal rather than restrictive construction, and courts are to adopt a standard of flexibility." Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997) (internal citation omitted). "In determining whether class certification is appropriate, a district court must first ascertain whether the claims meet the preconditions of Rule 23(a) of numerosity, commonality, typicality, and adequacy." Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201-02 (2d Cir. 2008).

         A court must then determine whether one of three conditions listed under Rule 23(b) is met. Fed.R.Civ.P. 23(b). Plaintiffs seek certification under Rule 23(b)(2), [Doc. 12-1 ("Pls. Mem.") at 15], which applies where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed.R.Civ.P. 23(b)(3). "Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class." Dukes, 564 U.S. at 360-61.

         II. FACTUAL BACKGROUND

         The following is derived from Plaintiffs' complaint, [Doc. 1 ("Compl.")], allegations of which are taken as true for the purposes of this Ruling.

         Upon discharge, military personnel receive a certification characterizing their service, e.g., "Honorable" or "Dishonorable," which affects their eligibility for veterans' benefits and services. Compl. ¶¶ 6-7. Veterans may apply to a review board, such as the Naval Discharge Review Board ("NDRB"), to upgrade their discharge characterization. Id. ¶ 9. In 2014, then-Secretary of Defense Chuck Hagel instructed the NDRB and other boards to give "special" or "liberal" consideration to applications from veterans diagnosed with post-traumatic stress disorder ("PTSD") and to consider PTSD and PTSD-related conditions as "potential mitigating factors in the misconduct that caused" a lesser characterization than "Honorable." Id. ¶¶ 11-12; see also Doc. 1-1 ("Hagel Memo"). Congress codified the "liberal consideration" policy in 2016. See 10 U.S.C. § 1553(d)(3)(A)(ii) (2016); Compl. ¶ 13.

         Notwithstanding the policy change, the NDRB granted discharge upgrades in only 15 percent of cases in which PTSD was alleged to have been a factor in characterization. Id. ¶ 180. This is in stark contrast to rates, 45 percent and 37 percent, respectively, by the Army Discharge Review Board and Air Force Discharge Review Board. Id. ¶ 180. Plaintiffs allege that the NDRB inconsistently applies the policy as first set forth by the Hagel Memo, often without sufficient explanations to back up its decisions denying an upgrade. Id. ¶¶ 183-86. Moreover, the NDRB fails to timely publish or publish at all these decisions despite legal obligations to make this information public. Id. ¶ 188. The lack of clear precedent, in terms of both quality and quantity, causes confusion about the NDRB's standards for upgrading characterizations. Id. ¶ 189.

         In the case at bar, it is not clear whether the NDRB denied Named Plaintiff Tyson Manker's application to upgrade his discharge characterization from the Marine Corps notwithstanding his PTSD diagnosis, which under the Hagel Memo should have worked in his favor. Id. ¶¶ 26, 58, 60-61, 84-94. In addition to failing to provide adequate explanations, the NDRB's decision also made multiple factual errors and misapplied decision-making rules. Id. ¶¶ 84-94.

         The other Named Plaintiff, the National Veterans Council for Legal Redress ("NVCLR"), is a non-profit that assists veterans with less-than-Honorable discharges, such as John Doe, and educates the public about veterans issues. Id. ¶¶ 96-101. Like Manker, Doe also developed PTSD from his time at war but was denied an upgrade discharge by the NDRB. Id. ¶¶ 118, 127, 140, 146. The NDRB most recently denied Doe an upgrade in a 2017 decision that acknowledged his PTSD status, but nonetheless stated that it did not excuse or mitigate the misconduct that led to his characterization. Id. ¶ 147.

         Plaintiffs file this action against Defendant Richard V. Spencer, in his official capacity as United States Secretary of the Navy, to challenge the NDRB's characterization upgrade decision-making procedures, which are allegedly in violation of the Administrative Procedure Act and the Fifth Amendment's due process protections. Id. at 3-4.

         III. DISCUSSION

         Pending before the Court is Plaintiffs' Motion for Class Certification. Doc. 12. They seek certification of a proposed class of "all Navy, Navy Reserve, Marine Corps, and Marine Corps Reserve veterans who served" between October 7, 2001, and the present, and who:

(a) were discharged from the Navy, Navy Reserve, Marine Corps, or Marine Corps Reserve with less-than-Honorable statuses, including General and Other-than-Honorable discharges but excluding Bad Conduct or Dishonorable discharges;
(b) have not received upgrades of their discharge statuses to Honorable; and
(c) have diagnoses of PTSD, [traumatic brain injury ("TBI")], or other related mental health conditions, or records documenting one or more symptoms of PTSD, TBI or other related mental health conditions at the time of discharge, attributable to their military service under the Hagel Memo standards of liberal or special consideration.

Pls. Mem. at 16.

         A. Standing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.