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.
MEMORANDUM AND ORDER REGARDING DISCOVERY
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
action arises under the Administrative Procedure Act
("APA"), 5 U.S.C. § 706. Subject matter
jurisdiction in this Court is conferred by 28 U.S.C. §
1331. This Memorandum and Order addresses a dispute about
are veterans of the United States Navy and Marine Corps. Doc.
1 ("Compl.") ¶ ¶ 3-4; Doc. 12. Defendant
is Secretary of the Navy. Compl. ¶ 5. Plaintiffs, who
were discharged from the service with less than honorable
discharges, allege that they were denied discharge upgrades
by the Naval Discharge Review Board ("NDRB") in a
manner violative of the APA and the Due Process Clause of the
Fifth Amendment. Id. at 3-4. Specifically,
Plaintiffs contend that they had diagnoses of post-traumatic
stress disorder ("PTSD"), traumatic brain injury
("TBI"), or PTSD- related conditions at the time of
discharge, attributable to their military service.
Id. at 3. That circumstance, Plaintiffs assert in
this action, entitle them to discharge upgrades which the
NDRB has wrongfully withheld. Id. Plaintiffs condemn
the NDRB's denial of discharge upgrades as arbitrary and
capricious, the hallmark of liability for violating the APA.
the complaint was first filed, there were two named
Plaintiffs, asserting claims on behelf of themselves and also
as representatives of a purported class. Id.
¶¶ 3-4. In an opinion reported at Manker v.
Spencer, No. 3:18-cv-372 (CSH), 2018 WL 5995486 (D.
Conn. Nov. 15, 2018), the Court certified a class consisting
of all Navy, Navy Reserve, Marine Corps and Marine Corps
Reserve veterans of the Iraq and Afghanistan Era who had
comparable discharge histories.
for the parties conducted a planning conference and submitted
a Report pursuant to Fed.R.Civ.P. 26(f), [Doc. 36 (the
"Report")], from which a stark and dramatic dispute
emerges with respect to the permissible scope of pretrial
Defendant Secretary takes the position that since Plaintiffs
claim an APA violation, "there is no need for a Local
Rule 26(f) report, initial disclosures, or discovery in this
case." Report at 12. Defendant concludes that because
judicial "review under the APA is confined to the
administrative records," it follows that "discovery
would be limited to the administrative record of the two lead
plaintiffs." Id. at 13.
position is that since they "have alleged systemic and
systematic failures to properly implement existing law and
guidance, which are not reflected in any agency decision
record," it follows that "discovery will be needed
on all matters related to the causes of action and the
defenses" raised in the pleadings, including an
encyclopedic list of "Defendant's policies,
procedures, and practices related to discharge upgrade
applications"; training of NDRB personnel and board
members; incidence of PTSD, TBI and other related mental
health conditions within the veterans; and "Department
of Defense, Navy and Marine Corps personnel involved in NDRB
policy, practice, or review." Id. at 10-11.
briefly, discovery is visualized by Plaintiffs into
practically everything and by Defendant into almost nothing.
The Court conducted an early hearing to explore these
extremes. Counsel for the parties reiterated their
conflicting contentions about pretrial procedures. That
question had not been previously briefed. The Court directed
briefing. Counsel exchanged main briefs [Docs. 51 and 52] and
reply briefs [Docs. 53 and 54]. The briefs are
well-structured, comprehensive, and replete with citations to
Order determines what will happen next in this sensitive and
challenge the NDRB's implementation of the Department of
Defense's policy concerning the adjudication of discharge
upgrade applications from Navy or Marine veterans with PTSD,
TBI, or PTSD-related conditions. Compl. at 3.
Plaintiffs' theory of the case, the NDRB is required by
Department of Defense policy to accord such discharge upgrade
applications "special" or "liberal"
consideration. Id. ¶¶ 11-12. Plaintiffs
assert that, notwithstanding those principles of compassion
and lenity, the NDRB has granted discharge upgrades in only
fifteen percent of cases in which PTSD was claimed to have
been a factor in arriving at the agency's
characterization of a particular discharge. Id.
¶ 180. Plaintiffs allege that so high a rate of denials
violates the APA and the Due Process Clause of the Fifth
Amendment to the Constitution. Id. at 3-4.
previously noted, Defendant asserts that judicial review of
agency actions under the APA is generally confined to the
administrative record. Report at 13. Plaintiffs counter that
this is not the typical APA case, and discovery outside of
the administrative record is essential. Id. at 10.
Embedded within this dispute are two central questions.
First, in what instances does the APA allow for extra-record
review? Second, is this one of those instances?