United States District Court, D. Connecticut
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,
RICHARD V. SPENCER, Secretary of the Navy, Defendant.
RULING ON PLAINTIFFS' MOTION FOR CLASS
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
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.
STANDARD OF REVIEW
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.
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).
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.
following is derived from Plaintiffs' complaint, [Doc. 1
("Compl.")], allegations of which are taken as true
for the purposes of this Ruling.
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.
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.
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.
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.
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.
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
(b) have not received upgrades of their discharge statuses to
(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
Pls. Mem. at 16.