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Manker v. Spencer

United States District Court, D. Connecticut

November 7, 2019

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.



         This is a class action on behalf of United States Navy (the “Navy”) and United States Marine Corps (the “Marine Corps” or “Marines”) veterans who were allegedly denied discharge upgrades by the Naval Discharge Review Board (“NDRB”) in a manner violative of the Administrative Procedure Act (“APA”) and the Fifth Amendment. This Ruling resolves several pending motions.


         Class certification was sought by two named Plaintiffs: Tyson Manker and the National Veterans Council for Legal Redress (“NVCLR”). Manker is a Marine Corps veteran who was deployed in Iraq during 2003 in support of the military action denominated “Operation Iraqi Freedom.” Doc. 1 (Complaint), at 2. The record also refers to an individual called “John Doe, ” a Marine Corps veteran and member of NVCLR who was also deployed in Iraq during 2003. Id. For reasons that will become apparent, the events relating to John Doe are relevant to the issues in the case, though the NVCLR-not its member Doe-is a named party Plaintiff, together with Manker.

         Manker and Doe were both discharged from the Marines with less-than-Honorable discharges, and have subsequently attempted without success to obtain from the Navy upgrades to Honorable discharges. Doc. 1, at 3.

         The class sought to be certified by the named Plaintiffs consisted of Navy, Navy Reserve, Marine Corps, and Marine Corps Reserve veterans of the Iraq and Afghanistan era who (a) were discharged from service with less-than-Honorable discharges; (b) have not received discharge upgrades to Honorable; and (c) have diagnoses of Post Traumatic Stress Disorder (“PTSD”), traumatic brain injury (“TBI”), PTSD-related conditions, or records documenting one or more symptoms of PTSD, TBI, or PTSD-related conditions at the time of discharge, those conditions or symptoms being attributable to their military service.

         The Defendant is the Secretary of the Navy, the Executive Branch individual responsible for the NDRB. The gravamen of Plaintiffs' complaint is that the NDRB fails to follow the directive of a memorandum issued by then-Secretary of Defense Charles Hagel mandating that “liberal consideration” be given to diagnoses of PTSD and similar mental health conditions; and, to records indicating symptoms of those conditions. Doc. 1, at 3. Plaintiffs seek a class-wide injunction whose purpose is to correct the Navy's conduct in that regard. Doc. 1, at 41. The only relief sought by Plaintiffs is equitable in nature.

         Plaintiffs moved for certification of the designated class pursuant to Federal Rule of Civil Procedure 23(b)(2), which allows a class action in a case where “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Doc. 12. The Court certified the class in a previous opinion, familiarity with which is assumed. See Manker v. Spencer, 329 F.R.D. 110 (D. Conn. 2018). The class, as certified, includes veterans who served between October 7, 2001, and the present, were discharged from the Navy, Navy Reserves, Marine Corps, or Marine Corps Reserve with less-than-Honorable statuses, have not received upgrades of their discharge statuses to Honorable from the NDRB; and,

have diagnoses of PTSD, 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.

Id. at 123.

         The case is now before the Court on Defendant's motion to dismiss the Complaint, or in the alternative, to remand the case to the Navy for further administrative action. Doc. 67. The Plaintiff class opposes that motion in its entirety. Doc. 68. In addition, the parties have filed cross-motions to govern the nature, scope, and effect of pre-trial discovery. Docs. 61, 62. The questions concerning discovery, which are substantial and vigorously litigated, arise only if the Defendant's motion to dismiss fails.

         This Ruling considers those motions in that order.


         Defendant moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction; and under Rule 12(b)(6) for failure to state a claim. Doc. 67-1, at 14-29. I consider those grounds for dismissal in Parts II.A and II.B. Defendant's alternative motion for a remand is considered in Part II.C.

         A. Lack of Subject Matter Jurisdiction

         1. Preliminary Discussion

         Rule 12 allows a defendant to move to dismiss a complaint for “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). The Supreme Court equates a district court's subject matter jurisdiction with the court's authority to adjudicate the case. See Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 425 (2007) (noting that “a court need not resolve whether it has authority to adjudicate the cause (subject-matter jurisdiction)” before dismissing the action for forum non conveniens). A federal district court's authority to adjudicate is not self-executing; it must be derived from the Constitution or a statute. “Determining the existence of subject matter jurisdiction is a threshold inquiry and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd, 561 U.S. 247, 130 (2010) (citation and internal quotation marks omitted). “Only Congress may determine a lower federal court's subject-matter jurisdiction.” Kontrick v. Ryan, 540 U.S. 443, 452 (2004) (citing U.S. Const., Art. III, § 1). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). On occasion, such proof requires discovery beyond the pleadings. See, e.g., State Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007) (“[W]e have held that, in adjudicating a motion to dismiss for lack of subject-matter jurisdiction, a district court may resolve disputed factual issues by reference to evidence outside the pleadings.”). In deciding a motion to dismiss under Rule 12(b)(1), a district court may resolve disputed jurisdictional facts on the basis of evidence outside the pleadings. See Zappia Middle E. Construction Company v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000).

         In the case at bar, Defendant's Brief in support of his Rule 12(b)(1) motion begins its discussion with the following assertion: “As a threshold matter, the Court lacks jurisdiction to review Plaintiffs' claims for five reasons.” Doc. 67-1, at 3. The Brief lists those reasons as follows:

• Plaintiffs' challenges to their discharges and characterizations of service are not reviewable, and thus nonjusticiable, under the intramilitary immunity doctrine.
• To the extent Plaintiffs claim the NDRB failed to follow Department of Defense and Navy regulations, they must first exhaust their administrative remedies.
• Plaintiffs may seek judicial review under the APA only for an adverse decision by the Navy's civilian review board, which Plaintiffs have not sought.
• Plaintiffs' claims are moot, because a subsequent Department of Defense directive made the Hagel memo explicitly applicable to discharge review boards.
• Plaintiffs “lack standing to launch a broad programmatic attack against the NDRB under the APA.”

Id. at 3-4.

         A striking aspect of these bases for a lack of subject matter jurisdiction is that, explicitly or by implication, they all seem to relate exclusively to the individual circumstances of Tyson Manker and John Doe. Manker and Doe play important roles in this opera, but there are other soloists, a chorus, and a full orchestra-a fair analogy, given that the Court has certified a class of Navy and Marine Corps veterans whose claims satisfy the commonalty and typicality requirements of Rule 23.

         The Complaint contains five claims. Claims I, II, and III are collected under the caption “Legal Claims of the Class.” Doc. 1. Each claim is captioned “Violations of the Administrative Procedure Act” and cites one or another of the several sub-sections found in section 10(e) of the Act, 5 U.S.C. § 706.

         Specifically, class members allege in Claim I that “Defendant's denials of class members' discharge upgrade applications are final agency actions.” Doc. 1 ¶ 201. The class members assert in Claim I that those denials constitute “arbitrary and capricious agency action, ” in violation of 5 U.S.C. § 706(2)(A). Id. ¶ 206. That section provides that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

         Class members allege in Claim II that constitutional Fifth Amendment due process protections “require that federal administrative agencies follow their own regulations and sub-regulatory guidance in conducting their adjudications and that they conduct adjudications in a fair and orderly manner.” Doc. 1 ¶ 211. The class members claim that “[b]y not meaningfully applying the Hagel Memo to class members' applications, Defendant has failed to follow its own rules, in violation of its constitutional obligations and the [APA], 5 U.S.C. § 706(2)(B).” Doc. 1 ¶ 212. That section of the APA provides that a court shall hold unlawful agency action found to be “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B).

         Class members allege in Claim III that Congress' intent “in establishing review boards such as the NDRB was to protect veterans with Other-than-Honorable discharges from being unjustly burdened” with life-time disadvantages attendant upon such discharges. Doc. 1 ¶ 224. The class members assert in Claim III that “Sailors and Marines are being denied their statutorily-mandated access to the discharge upgrade procedures set forth by Congress and implemented by the Department of Defense, ” with the result that “Defendant has failed to carry out Congress' intent in establishing the Discharge Review Boards and setting forth their governing standards.” Id. ¶¶ 226-27. According to the class members, Defendant has “thereby exceed[ed] its authority, and has fallen short of vindicating the statutory right Congress created for veterans, in violation of the [APA], 5 U.S.C. § 706(2)(c).” Id. ¶ 227. Section 706(2)(c) provides that a court shall hold unlawful agency action found to be “in excess of statutory jurisdiction, authority, or short of statutory right.” 5 U.S.C. § 706(2)(c).

         Claim IV is captioned as “Legal Claims of Tyson Manker.” Id. ¶¶ 228-34. Claim V is captioned “Legal Claims of NVCLR on Behalf of John Doe.” Id. ¶¶ 235-41. The substantive allegations are the same. Each claim is sub-captioned “Violations of the Administrative Procedure Act.” Those violations are alleged to consist of Defendant's failure to apply the Hagel Memo to that individual's application for a discharge upgrade; failure to consider important evidence concerning the individual's mitigation of misconduct by PTSD and TBI affliction; Defendant's failure to follow its own rules requiring responding to all relevant facts and issues; and Defendant's wrongful application of the presumption of regularity in government affairs. Id. ¶¶ 228-41.

         I have set forth these several claims pleaded in the Complaint at some length because in adjudicating the Defendant's jurisdictional challenge, the Court's consideration must include the case's class status and the circumstances of the class members. That is to say, in order for Defendant to succeed on his Rule 12(b)(1) motion to dismiss the Complaint in its entirety, he must demonstrate that as a matter of law this Court lacks subject matter jurisdiction over each and every claim plausibly pleaded in the Complaint on behalf of Manker, Doe, or any member of the certified Plaintiff class.

         That group of veterans is of substantial size. While the number of class members cannot be stated on the present record, the Complaint's allegations demonstrated that the numerosity requirement imposed by Rule 23 for class certification was met. According to the Complaint:

Over 100, 000 Sailors and Marines have received less-than-Honorable discharges since 2002. Thousands of these former service members suffered combat-related PTSD or PTSD-related conditions, TBI, or MST but received a less-than-Honorable discharge for misconduct attributable to these conditions. Nearly all who applied for a discharge upgrade to the NDRB were denied.

Doc. 1 ¶¶ 193-94.

         Given these allegations, which are not contradicted by anything in the present record, it is likely that the class is comprised of at least hundreds, more likely several thousand, Navy and Marine Corps veterans, arrayed within the ranks of the class certified by the Court. That certification adopts the Complaint's allegations and, as noted supra, creates a class of Navy and Marine Corps veterans who served from 2001 to the present, received less-than-Honorable discharges, were denied upgrades by the NDRB, and had diagnoses of PTSD, TBI, or other related mental health conditions attributable to their military service. See Manker, 329 F.R.D. at 123.

         If the Complaint survives Defendant's motion to dismiss and discovery takes place, the number of class members may appear with more precision, and the circumstances of additional individual veterans may be elucidated. But that possibility does not affect the present motion to dismiss the entire Complaint for lack of subject matter jurisdiction. To dismiss the action on that ground, the Second Circuit teaches in Morrison that Defendant must demonstrate that this Court “lacks the statutory or constitutional power to adjudicate it, ” thereby rendering the Court powerless to adjudicate any claims of Manker, Doe, or all class members. Morrison, 547 F.3d at 170.

         In the case at bar, Defendant Secretary of the Navy cannot make that showing. The reasons he cites for a lack of subject matter jurisdiction do not, separately or in the aggregate, lead to that conclusion. They fail in that regard because this Court's statutory power to adjudicate this case is explicitly conferred by the APA.

         2. Justiciability and the Intramilitary Immunity Doctrine

         Defendant's first-cited basis for lack of jurisdiction is that “under the intramilitary immunity doctrine, Plaintiffs' challenges to military personnel decisions are generally nonjusticiable.” Doc. 67-1, at 15. Defendant seeks to apply that judge-made doctrine to the present Plaintiffs' APA action by arguing: “To the extent that Plaintiffs' claims require the Court to make an individualized inquiry into a discrete personnel action, any such claim is nonjusticiable. The justiciability of military personnel decisions is limited by the fundamental and highly salutary principle that Judges are not given the task of running the Army.” Id. (citations and internal quotation marks omitted).

         One may acknowledge the existence and beneficence of that principle, embodied in the intramilitary immunity doctrine. But the doctrine has nothing to do with the case at bar, which is not “an individualized inquiry into a discrete personnel action” which turns upon “military personnel decisions.” Id. Rather, this is an action where the plaintiff class invokes the APA to challenge the legality and validity of the process by which the NDRB has denied discharge upgrades to allegedly afflicted veterans. The APA confers jurisdiction on this Court to entertain that action.

         Even Defendant quotes with apparent approval Pettiford v. Secretary of the Navy, 774 F.Supp.2d 173, 182 (D.D.C. 2011), stating that “a court's role in reviewing the decision of a military corrections board is to determine whether the decision making process was deficient, not whether [the] decision was correct.” Id. at 17 (internal quotation marks omitted). That distinction is illustrated by Kreis v. Secretary of Air Force, 866 F.2d 1508 (D.C. Cir. 1989), relied upon by Defendant, where the plaintiff, an air force officer who was denied promotion, sued the Secretary under the APA. In that case, the plaintiff asserted “a claim to a military promotion and distinct claims for the correction of military records.” Kreis, 866 F.2d at 1511. The D.C. Circuit, reversing in part the district court's dismissal of the action, held that while plaintiff's “request for retroactive promotion falls squarely within the realm of nonjusticiable military personnel decisions, ” a viable claim lay under the APA to challenge, “in light of familiar principles of administrative law, the reasonableness of the Secretary's decision not to take certain corrective action with respect to appellant's record.” Id.

         The gravamen of the present Plaintiffs' claim against the Navy Secretary is that the process by which the Navy decided not to upgrade class members' discharges was deficient. Kreis holds that to be a justiciable claim under the APA. To the same effect, judges in this District routinely hold that the APA grants district courts jurisdiction to consider whether military review boards' classifications of individuals were arbitrary or capricious under section 706(2)(A). See, e.g., Cowles v. McHugh, No. 13-cv-1741 (JCH), 2014 WL 12767682, at *5-6 (D. Conn. Sept. 30, 2014). In Cowles, the plaintiff challenged the Army Board for Correction of Military Records' refusal “to correct [the plaintiff's] records to reflect that he was separated for PTSD rather than for [Adjustment Disorder].” Id. at *1. In denying a motion to dismiss, Judge Hall said that, “[t]his relief is all within the traditional scope of ‘equitable' relief, is not merely ‘incidental' to the money damage claim, and would thus normally be the appropriate subject of a suit under the APA.” Id. at *6 (citation omitted).

         On the present record, there is no substance to Defendant's contention that the claims asserted against the Secretary of the Navy in this class action are nonjusticiable.

         3. Failure to Exhaust Administrative Remedies

         Defendant's second jurisdictional challenge is that to the extent Plaintiffs (Manker, Doe, and the class members) claim the NDRB failed to follow agency regulations in denying them discharge upgrades, Plaintiffs must first exhaust their administrative remedies. Doc. 67-1, at 17-21. That contention is precluded by the Supreme Court's decision in Darby v. Cisneros, 509 U.S. 137 (1993), where a real estate developer filed an APA suit against the Secretary of the United States Department of Housing and Urban Development (“HUD”), alleging that sanctions imposed by HUD violated the agency's regulations. A HUD administrative law judge imposed those sanctions, and agency regulations gave the developer the option of asking the Secretary to review that adverse decision. See Darby, 509 U.S. at 141. The developer chose not to exercise the option, however, and simply filed his APA action. See Id. at 142. The Secretary and HUD “moved to dismiss the complaint on the ground that petitioners, by forgoing the option to seek review by the Secretary, had failed to exhaust administrative remedies.” Id.

         Darby rejects that contention. The decision focuses upon section 10(c) of the APA, which enables judicial scrutiny of “final agency action for which there is no other adequate remedy in a court, ” and further provides that “[e]xcept as otherwise expressly required by statute, ” agency action “is final for the purposes of this section whether or not” there is an application “for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.” 5 U.S.C. § 704. The Darby opinion notes that “appropriate deference to Congress' power to prescribe the basic procedural scheme under which a claim may be heard in a federal court requires fashioning of exhaustion principles in a manner consistent with congressional intent and any applicable statutory scheme.” 509 U.S. at 153 (quoting McCarthy v. Madigan, 503 U.S. 140, 144 (1992)). The Court then reasoned in Darby:

Appropriate deference in this case requires the recognition that, with respect to actions brought under the APA, Congress effectively codified the doctrine of exhaustion of administrative remedies in § 10(c). Of course, the exhaustion doctrine continues to apply as a matter of judicial discretion in cases not governed by the APA. But where the APA applies, an appeal to “superior agency authority” is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review. Courts are not free to impose an exhaustion requirement as a rule of judicial administration where the action has already become “final” under § 10(c).

509 U.S. at 153-54. “In other words, under Darby”-as District Judge Bianco (as he then was) aptly distilled of the Supreme Court's decision-a plaintiff need not seek further review of a final action within the agency before filing suit, unless a specific statute or rule expressly requires otherwise.” Brezler v. Mills, 220 F.Supp.3d 303, 322 (E.D.N.Y. 2016).

         In the case at bar, Defendant's Reply Brief argues that “Plaintiffs did not file a complaint with the JSRA even though the NDRB explicitly informed them of their right to do so. . . . Therefore, Plaintiffs failed to exhaust their administrative remedies by not filing a complaint with the JSRA.” Doc. 69, at 6 (emphasis added). The JSRA remedy is created by a Department of Defense instruction that an individual's disagreeing with agency action “may submit a complaint . . . to the Joint Service Review Activity.” Id. Defendant also argues that “Second Circuit precedent requires them to exhaust their administrative remedies by presenting such claims to the BCNR.” Id.

         These exhaustion contentions are precluded by Darby, as correctly interpreted by Brezler. No. statute or rule expressly required Plaintiffs to invoke JSRA or BCNR remedies before ...

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