Manker v. Spencer

          MEMORANDUM AND ORDER REGARDING DISCOVERY

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

         This 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 pretrial discovery.

         I. INTRODUCTION

         Plaintiffs 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. Id.

         When 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.

         Counsel 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 discovery.

         The 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.

         Plaintiffs' 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.

         Stated 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 case law.

         This Order determines what will happen next in this sensitive and important case.

         II. BACKGROUND

         Plaintiffs 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.

         On 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.

         As 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?

         III. ...