Kennedy v. Fanning
Filing
29
ORDER denying without prejudice 16 Motion to Dismiss; granting 16 Motion to Remand to Agency. Signed by Judge Warren W. Eginton on 9/19/2017. (Gould, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
STEPHEN KENNEDY et al.,
on behalf of themselves and all
others similarly situated,
3:16cv2010 (WWE)
Plaintiffs,
v.
ROBERT SPEER, Acting
Secretary of the Army,
Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISS OR, IN
THE ALTERNATIVE, VOLUNTARY REMAND
On behalf of themselves and all others similarly situated, plaintiffs Stephen
Kennedy and Alicia Carson challenge decisions by the Army Discharge Review Board
(“ADRB”) pursuant to the Administrative Procedure Act (“APA”) and the Due Process
Clause of the Fifth Amendment to the United States Constitution. Plaintiff Carson also
asserts a claim under the Little Tucker Act that seeks an order preventing the Army from
recouping her enlistment bonus.
Plaintiffs were involuntarily separated from the Army, and they now seek
discharge upgrades, arguing that the ADRB failed to consider binding instructions
issued by then-Secretary of the Army Chuck Hagel (“Hagel Memo”) to afford liberal
consideration to Post-Traumatic Stress Disorder (“PTSD”) diagnoses.
Defendants seek dismissal of the claims on the basis of (1) failure to exhaust
administrative remedies by seeking review from the Army Board for Correction of
Military Records (“ABCMR”); (2) lack of justiciable claims; (3) lack of cognizable
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property or liberty interests in their discharge upgrades; and (4) failure to challenge
discrete agency action reviewable under the APA.
Alternatively, defendant requests that this Court remand the claims to allow the
Army to reconsider or explain its prior decision and to provide for a full administrative
record.
Courts retain discretion to remand an agency decision when an agency has
raised “substantial and legitimate” concerns that it should reconsider the prior decision.
American Forest Resource Council v. Ashe, 946 F. Supp. 2d 1, 41 (D.D.C. 2013). “In
general, a voluntary remand request made in response to a party's APA challenge may
be granted only when the agency intends to take further action with respect to
the original agency decision on review.” Limnia, Inc. v. United States Dept. of Energy,
857 F.3d 379, 386 (D.C. Cir. 2017) (agency need not confess to error or impropriety but
should “profess intention to reconsider, re-review, or modify the original agency decision
that is the subject of the legal challenge.”). Requests for voluntary remand to cure
mistakes are commonly granted. American Forest Resource Council, 946 F. Supp. 2d
at 43.
Here, defendant asserts that remand for reconsideration of the decisions is
appropriate because defendant’s review of the relevant Army Review Board Agency
(“ARBA”) records revealed (1) that four documents submitted by plaintiff Kennedy in his
2015 application were missing;1 (2) it is unclear whether plaintiff Carson’s entire service
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Due to the ARBA inability to find four documents submitted with plaintiff Kennedy’s
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record had been considered in the evaluation of her application merits; and (3) it is
unclear whether the ADRB decisions relative to plaintiffs’ applications applied the
guidance of the Hagel Memo.
Defendant proposes that its reconsideration of the decision on plaintiffs’
discharge status would allow for plaintiffs to submit new applications, in which they
could raise any new arguments and provide additional evidence. Defendant
anticipates that the Army would take approximately 180 days to reconsider plaintiffs’
cases; and it suggests that the parties confer with respect to the need for further
litigation within 30 days after final action by the Army.
Plaintiff objects to the defendant’s voluntary remand on several grounds.
Plaintiff maintains that defendant has failed to articulate “substantial and legitimate
concerns” in support of its request for remand. Plaintiff asserts that the inability to
locate four documents and the lack of clarity regarding the decisions underlying
considerations are not relevant to the instant litigation asserting violation of the APA and
the Fifth Amendment Due Process Clause. However, both plaintiffs have alleged that
defendant failed to adhere to the instructions relevant to service-members’ PTSD and
related mental health conditions as set forth in the Hagel Memo.
The Hagel Memo requires “liberal consideration” of PTSD diagnoses by civilian
providers, “special consideration” of PTSD diagnoses by Veterans Administration
application, it cannot certify the administrative record relevant to the decision on his
application.
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providers. The Hagel Memo states: “In cases in which PTSD or PTSD-related
conditions may be reasonably determined to have existed at the time of discharge,
those conditions will be considered potential mitigating factors in the misconduct that
caused the under other than honorable conditions characterization of service.” In
August 2017, the Department of Defense issued new guidance on adjudication of PTSD
and other mental health conditions, Traumatic Brain Injury; sexual assault; or sexual
harassment.
Remand would afford a reconsideration that should clarify the bases for the
decisions and provide for a complete administrative record, both of which would
facilitate this Court’s judicial review of the matter. In this instance, defendant has
questioned whether the ADRB’s decisions represent a full and proper consideration of
the applications. See SKF USA Inc. v. United States, 254 F.3d 1022, 1028 (Fed. Cir.
2001) (noting that court has discretion to grant a voluntary remand where agency seeks
to reconsider its previous position).
Plaintiff argues for denial of defendant’s request for voluntary remand because
defendant has indicated that it would review new applications with new arguments and
additional evidence. In Limnia, the D.C. Court of Appeals held that the district court
had erred by granting a request for voluntary remand that was conditional upon
plaintiff’s submission of a new application, which constituted a “remand” in “name only.”
857 F.3d at 388. Although the instant defendant has professed its intent to reconsider
its prior decisions, the Court clarifies that it will a grant a voluntary remand only to the
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extent that defendant will revisit the original applications that are the subject of this
litigation. Defendant may request that plaintiffs supplement the existing record with the
documents that cannot be located or that would clarify the existing record.
Plaintiff maintains that a remand to cure the named plaintiffs’ discharge status
will not affect the “systemic issues” relevant to the adjudications of similarly-situated
veterans who served in Iraq and Afghanistan. However, the remand will provide the
most efficient means for the named plaintiffs to obtain revised decisions regarding their
discharge applications. The remand will also serve the interest of judicial economy by
providing a full administrative record for the Court to assess the merits of plaintiffs’
claims and request for class certification.
Accordingly, defendants’ request for voluntary remand will be granted.
CONCLUSION
For the foregoing reasons, the Motion to Dismiss or, In the Alternative, Voluntary
Remand of the plaintiffs’ amended complaint [doc. #16] is DENIED without prejudice in
part and GRANTED in part. The Court DENIES the Motion to Dismiss without
prejudice; but the Court GRANTS the Motion for Voluntary Remand. The Court will
stay the action pending the reconsideration of the plaintiffs’ applications. The parties
should submit a status report within 90 days of this ruling’s filing date.
Dated this __19th__ day of September, 2017, at Bridgeport, Connecticut.
/s/Warren W. Eginton________
WARREN W. EGINTON
SENIOR U.S. DISTRICT JUDGE
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