Kennedy v. Fanning
Filing
74
MEMORANDUM OF DECISION granting 51 Motion to Certify Class. Signed by Judge Warren W. Eginton on 12/21/18. (Imbriani, Susan)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
STEPHEN M. KENNEDY, and ALICIA
J. CARSON,
16cv2010 (WWE)
individually and on behalf
of all similarly situated
persons,
Plaintiffs,
v.
MARK ESPER, Secretary of the Army,
Defendant.
MEMORANDUM OF DECISION ON MOTION FOR CLASS CERTIFICATION
Plaintiffs Stephen Kennedy and Alicia Carson, veterans of the conflicts in Iraq
and Afghanistan respectively, filed this action pursuant to the Administrative Procedure
Act (“APA”) and the Fifth Amendment due process clause, individually and on behalf of
all similarly situated persons. Specifically, plaintiffs seek a class-wide injunction
ordering the Army Discharge Review Board (“ADRB”) reviewing less-than-Honorable
discharges to follow the directive of the memorandum issued by the Secretary of
Defense Hagel (“Hagel Memo”) to give “liberal consideration” to diagnoses of posttraumatic stress disorder (PTSD) and similar mental health conditions, and records
indicating symptoms of those conditions. Plaintiffs have moved for certification of a
class pursuant to Federal Rule of Civil Procedure 23(b)(2) seeking equitable relief.
Specifically, plaintiffs’ proposed class consists of all Army, Army Reserve, and Army
National Guard veterans of the Iraq and Afghanistan era—the period between October
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7, 2001 to present—who: (a) were discharged with a less-than Honorable service
characterization (this includes General and Other than Honorable discharges from the
Army, Army Reserve, and Army National Guard, but not Bad Conduct or Dishonorable
discharges); (b) have not received discharge upgrades to Honorable; and (c) have
diagnoses of PTSD or PTSD-related conditions or records documenting one or more
symptoms of PTSD or PTSD-related conditions at the time of discharge attributable to
their military service under the Hagel Memo standards of liberal and special
consideration.
Defendant opposes the motion for certification on numerous grounds. For the
following reasons, the motion for certification will be granted.
BACKGROUND
The following background to plaintiffs’ claims is reflected in the allegations
of the amended complaint and the parties’ briefs and the exhibits thereto.
Kennedy
Kennedy joined the Army in 2006 and served in Iraq in 2007 and 2008.
After his combat deployment, Kennedy returned to the United States with severe
PTSD and major depression that the Army failed to diagnose or treat adequately.
In March 2009, Kennedy’s request to take leave to attend his wedding
ceremony in May 2009 was denied due to a scheduled unit training exercise. In
May 12, 2009, Kennedy took an absence without leave (“AWOL”) to attend his
wedding. After two weeks of AWOL, Kennedy returned to Fort Bragg, at which
time he was referred for a command directed behavioral health evaluation. He
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was evaluated for PTSD and traumatic brain injury, but he did not meet criteria
those diagnoses. He was diagnosed with major depressive disorder.
On July 27, 2009, Kennedy was separated from active duty with a
General, Under Honorable Conditions discharge. Kennedy represents that after
he began mental treatment, he realized that his misconduct resulted from his
undiagnosed and untreated PTSD.
In 2010, Kennedy applied to the ADRB for a change to his discharge
status. On November 19, 2010, the ADRB conducted a record only review and
denied his application.
In February 2015, Kennedy submitted another application to the ADRB for
a change to his discharge status. He submitted documentary evidence to
support his assertion that his PTSD was a factor in his AWOL. The ADRB
denied his application. Kennedy asserts that the ADRB failed to follow, or even
reference, the instructions issued in the Hagel Memo.
On December 8, 2016, Kennedy filed the original complaint in this case.
In the complaint, Kennedy seeks to set aside the October 2015 ADRB decision
and have the Court direct that his characterization of service be changed to
Honorable.
Carson
On April 17, 2017, Kennedy filed an amended complaint that joined
Carson to the action. Carson was deployed to Afghanistan from February until
November 2010. During her deployment, Carson earned a promotion in rank,
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an Army Commendation, and a Combat Action Badge.
Upon her return to Connecticut, Carson informed her commander that she
was experiencing symptoms of PTSD, and as result, she was referred to a
medical provider for treatment. She received mental health services through the
Department of Veterans Affairs and the Hartford Vet Center. She received
continual treatment for her symptoms related to PTSD and a traumatic brain
injury for approximately 18 months. Thereafter, Carson had several unexcused
absences and was separated from service for unsatisfactory performance. She
was discharged on May 29, 2012. The Connecticut National Guard
characterized her service as General, Under Honorable Conditions.
In April 2015, she applied to the ADRB seeking a discharge upgrade to
Honorable and a change to the reason for separation to “Other designated
physical or mental conditions.” In October 2015, the ADRB denied her upgrade
application, noting that the pertinent documents were “NFI” or “Not in File.” The
ADRB reasoned that denial was appropriate because the “facts and
circumstances leading to discharge are unknown.”
In the complaint, Carson requests to have her discharge upgraded to
Honorable and seeks to have the Army prevented from recouping any part of her
unearned enlistment bonus.
Remand and Relief
After plaintiffs had filed a motion for class certification, defendant moved to
dismiss or, in the alternative, voluntarily remand. On September 19, 2017, the
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Court remanded both of the plaintiffs’ cases to the ADRB to “revisit the original
applications that are the subject of this litigation.”
In October 2017, the Connecticut Army National Guard granted Carson an
upgrade to Honorable; accordingly, the ADRB did not render a decision with
regard to Carson. In March 2018, the ADRB upgraded Kennedy’s discharge
characterization to Honorable.
DISCUSSION
Standing: Redressabiity
Defendant challenges the Court’s jurisdiction to issue the requested relief:
An injunction ordering the ADRB to take into consideration, follow, and apply the
Hagel Memo and medically appropriate standards for PTSD into the applications
for a change in discharge status.
The doctrine of Article III standing requires a litigant to demonstrate that
(1) the litigant must have suffered actual or threatened injury as a result of the
illegal conduct of the defendant, (2) the injury is fairly traceable to the challenged
action, and (3) the injury is redressable by a favorable decision. Valley Forge
Christian College v. Americans United for Separation of Church and State, 454
U.S. 464, 472 (1982).
Plaintiffs’ harm must be actual or imminent, not
conjectural or hypothetical. Port Washington Teachers’ Assoc. v. Bd. of Educ.
of the Port Washington Union Free Sch. Dist., 478 F.3d 494, 498 (2d Cir. 2007).
Defendant maintains that this Court cannot enter an injunction under the
APA because the proper remedy is to remand to the agency for reconsideration.
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Defendant asserts that the Court cannot “direct the agency to evaluate a
particular claim in a particular manner or to provide a particular benefit much less
give such direction as to service members who have not even sought judicial
review or even sought a discharge upgrade from the ADRB.” Defendant
expresses further concern that an injunction imposing procedural rules not
previously approved by Congress or authorized by the Secretary of the Army
would deviate from the judicial deference accorded to military correction
decisions.
The APA provides for “any applicable form of legal action, including …
mandatory injunction.” See 5 U.S.C § 703. Supreme Court precedent provides
that circumstances “may make it appropriate for judicial review to culminate in
the entry of declaratory or injunctive relief that requires the Secretary to modify
future practices.” Bowen v. Massachusetts, 487 U.S. 879, 905 (1988).
In accordance with Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, Inc., 435 U.S. 519, 523-25 (1978), which defendant cites as
supportive authority, courts are not generally free to impose additional procedural
rights that the agencies have not chosen to adopt.
Here, defendant appears to overstate the extent of the relief sought.
Plaintiffs are not seeking “tailor-made procedures devised by the court,” which
the Second Circuit has indicated as inappropriate relief. See Guitard v. United
States Sec’y of Navy, 967 F.2d 737, 742 (2d Cir. 1992). Plaintiffs have
requested that the Court’s injunction “rectify the ADRB’s failure to apply the
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decisional standards already established by the Hagel Memo and now codified at
10 U.S.C. § 1553.” This Court has jurisdiction to consider a lawsuit seeking
redress where a military entity has failed to follow mandatory regulations
resulting in prejudice to a service member. Dibble v. Fenimore, 339 F.3d 120,
128 (2d Cir. 2003). The Court will determine the scope of the any injunctive
relief, if appropriate, at a later stage of this action.
Mootness
Defendant argues that the Court should deny the motion for class
certification and dismiss the action as moot because the named plaintiffs have
already received the relief sought after the case was remanded.
“[A] case is moot when the issues presented are no longer live or the
parties lack a legally cognizable interest in the outcome.” City of Los Angeles v.
Davis, 440 U.S. 625, 631 (1979). The mootness doctrine ensures that the
litigant’s interest exists “throughout the life of the lawsuit.” Comer v. Cisneros,
37 F.3d 775, 798 (2d Cir. 1994). However, there are special considerations
relevant to mootness in the class action context. Samele v. Zucker, 324 F.
Supp. 3d 313, 327 (E.D.N.Y. 2018). Generally, a class action case will become
moot if the named plaintiffs’ claims become moot prior to the court’s certification
of the class. Comer, 37 F.3d at 798. However, after the Court has certified a
class, the termination of a class representative's claim does not moot the claims
of the unnamed members of the class. Cty. of Riverside v. McLaughlin, 500 U.S.
44, 51-52 (1991). Further, in accordance with established precedent, a class
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action will not be rendered moot after a named plaintiff has received relief prior to
class certification where: (1) defendant voluntarily ceases the allegedly illegal
conduct in an attempt to evade judicial scrutiny; (2) the claims are inherently
transitory so that the court will not have enough time to rule on a motion for class
certification before the representative’s interest expires; or (3) the claims are
capable of repetition, yet evading judicial review. Comer, 37 F.3d at 798-9. As
Comer indicated, after voluntary cessation of a named plaintiff’s claim, a class
action claim should not be considered moot if the defendant has not sustained a
heavy burden of demonstrating “with assurance that there is no reasonable
expectation” that the illegal conduct will recur, and that interim relief or events
have “irrevocably eradicated the effects of the alleged violation.” Id. at 800.
“Requiring multiple plaintiffs to bring separate actions, which effectively could be
‘picked off’ by a defendant’s tender of judgment before an affirmative ruling on
class action could be obtained, obviously would frustrate the objectives of class
actions … [and] would invite waste of judicial resources by stimulating
successive suits brought by others claiming aggrievement.” Deposit Guar. Nat’l
Bank, Jacson, Miss. v. Roper, 445 U.S. 326, 339 (1980).
Plaintiffs assert that the voluntary cessation exception applies to this case.
Here, the named plaintiffs were able to obtain favorable results after remand.
However, defendant has not demonstrated assurance that there exists no
reasonable expectation that the ADRB will continue to disregard the Hagel Memo
PTSD directive in its in review of discharge upgrade applications. Further, as
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plaintiffs point out, this Court has considered a similar putative class action, Monk
v. Mabus, 14 cv 260 (WWE), which was brought against the Secretaries of the
Navy, Army and Air Force, challenging military correction boards’ decisions
relative to discharge upgrade applications by veterans asserting to have PTSD.
On November 14, 2014, this Court granted a voluntary remand to the respective
military Secretaries for consideration of the named plaintiffs’ upgrade applications
after then Secretary of Defense Hagel had issued his memo concerning
consideration of PTSD in upgrade applications. In their motion for voluntary
remand, the Monk defendants represented that “the boards will fully and carefully
consider all evidence each individual applicant would like to submit, and evaluate
this evidence in accordance with the Secretary’s policy memorandum.” The fact
that the instant action alleging similar failures to evaluate evidence in accordance
with the Hagel Memo was filed on December 8, 2016, indicates events or prior
relief have not “irrevocably eradicated” the alleged systemic improper review of
upgrade applications. Accordingly, the Court finds that this case involves an
interest—application of the Hagel Memo instructions to less-than-Honorable
discharge upgrade applications--that will exist “throughout the life of the lawsuit.”
Exhaustion of Administrative Remedies
Defendant asserts that plaintiffs have failed to demonstrate that the
proposed class members have exhausted their administrative remedies. The
named plaintiffs represent that a final agency decision from the ADRB is
appropriate for judicial review.
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Agency action made reviewable by statute and final agency action for
which there is no other adequate remedy in a court are subject to judicial
review….Except as otherwise expressly required by statute, agency action
otherwise final is final for the purposes of this section whether or not there
has been presented or determined an application for a declaratory order,
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. In Darby v. Cisnersos, 509 U.S. 137, 154 (1993), the Supreme
Court held that, pursuant to the APA, “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.” Thus, “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).
Defendant’s opposition brief sets forth no statutory language expressly
requiring exhaustion of an administrative remedy or an appeal to a “superior
agency authority” as a prerequisite to judicial review. Accordingly, for purposes
of ruling on this motion for certification, the Court finds that judicial review after a
final agency decision from the ADRB is appropriate.
The Court turns next to consider whether plaintiffs have shown that class
certification is warranted.
Federal Rule of Civil Procedure 23(a)
To receive class certification, plaintiffs must first satisfy the four elements
of Federal Rule of Civil Procedure 23(a): numerosity, commonality, typicality and
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the adequacy of representation. Plaintiffs must then meet at least one of the
three subsections of Rule 23(b). McLaughlin v. American Tobacco Co., 522
F.3d 215, 222 (2d Cir. 2008).
Rule 23 is to be construed liberally according to a standard of flexibility.
Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997). Consideration of class
certification is not an occasion to examine the merits of the claims. Caridad v.
Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999).
Numerosity
Plaintiffs set forth that, between 2009 and 2015, the Army discharged
22,000 soldiers with less-than-Honorable characterizations for “misconduct” after
diagnoses for mental health issues after deployments to Iraq and Afghanistan.
Numerosity is presumed where more than forty class members of a putative
class exist. Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483
(2d Cir. 1995) (numerosity is presumed at a level of forty members). The Court
finds that the numerosity requirement is satisfied.
Commonality
The commonality prong requires plaintiffs “to demonstrate that the class
members suffered the same injury.” Wal-Mart Stores v. Dukes, 564 U.S. 338,
349-50 (2011). The injury suffered must be more than a violation of the same
provision of law and must depend upon a common contention that is capable of
classwide resolution, such that its determination will resolve the central issue of
each one of the claims. Id. at 350. Commonality focuses upon the “capacity of
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a classwide proceeding to generate common answers apt to drive the resolution
of the litigation.” Id.
Plaintiffs set forth that the following questions of law and fact are common
to the putative class:
( a) Whether the Defendant acted arbitrarily, capriciously, and without
support of substantial evidence, in violation of the Administrative
Procedure Act, by failing to consistently apply the relevant binding
instructions, and in particular the Hagel Memo, when reviewing class
members’ discharge statuses; (b) Whether the Defendant violated the
Fifth Amendment and the Administrative Procedure Act by failing to apply
consistent and medically appropriate standards for PTSD and PTSDrelated conditions when considering whether to upgrade the proposed
class members’ discharge statuses; (c) Whether the Defendant violated
the Fifth Amendment and the Administrative Procedure Act by failing to
give the requisite amount of consideration to class members’ evidence of
PTSD and PTSD-related conditions, particularly medical diagnoses, when
considering whether to upgrade the class members’ discharge statuses;
(d) Whether the Defendant denied class members a meaningful
opportunity to be heard, in violation of the Fifth Amendment, by its
frequent and unlawful failures to maintain records important to the
adjudication of their claims concerning property and liberty interests; (e)
Whether the Defendant’s refusal to upgrade the class members’ less-thanHonorable discharge statuses impermissibly caused them to be
stigmatized; and (f) whether the Defendant’s denials of class members’
discharge status upgrades are based on an undisclosed policy.
The questions common to all class members stem from the asserted failure of
the ADRB to apply the Hagel Memo directive to consider the PTSD and mental
health diagnoses of the class members. As this Court has previously held in a
similar case relevant to review of upgrade applications by the Naval Discharge
Review Board, questions concerning the procedures in place during the
application evaluation--rather than the merits of individual upgrade application
decisions--will render answers common to the claims of the proposed class
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members. See Manker v. Spencer, 2018 WL 5995486, at *6 (D. Conn. Nov. 15,
2018). Accordingly, the common questions regarding whether the appropriate
procedure was applied to an upgrade application can be answered and remedied
through injunctive relief applied on a class basis. The Court finds that the
commonality requirement is met.
Typicality
Pursuant to Rule 23(a)(3), plaintiffs’ claims must be “typical of the claims
or defenses of the class.” The typicality requirement is met when each class
member’s claim arises from the same alleged unlawful conduct or the same
course of conduct affects both the named plaintiffs and the class sought to be
represented. Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993).
“Differences in the degree of harm suffered, or even in the ability to prove
damages, do not vitiate the typicality of a representative’s claims.” Oulette v.
Int’l Paper Co., 86 F.R.D. 476, 480 (D. Vt. 1980). The instant plaintiffs challenge
the systematic failure of the ADRB to give proper consideration to the directive of
the Hagel Memo relevant to discharge upgrade applications. The putative class
members are individuals who have experienced this systemic failure that has
prejudiced their upgrade applications. Accordingly, the Court finds that typicality
is satisfied.
Adequacy of Representation
Defendant asserts that the proposed representatives are not appropriate
because they are no longer harmed in the same way as the class due to their
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receipt of upgrades.
The adequacy inquiry requires this Court to consider whether the named
plaintiffs’ interests “are antagonistic” to that of the other members of the class.
In re Visa Check/Master Money Antitrust Litig., 280 F.3d 124, 142 (2d Cir. 2001).
A class representative must have “a sufficient interest in the outcome of the case
to ensure vigorous advocacy.” Pirelli Armstrong Tire Corp. Retiree Medical
Benefits Trust v. LaBranche & Co. Inc., 229 F.R.D. 395, 413 (S.D.N.Y. 2004). A
plaintiff must also have attorneys who are “qualified, experienced, and generally
able to conduct the litigation.” In re Drexel Burnham Lambert Group, Inc., 960
F.2d 285, 291 (2d Cir. 1992). A proposed class representative with even a
“sketchy” understanding of the case is deemed adequate if that representative
understands his responsibilities, reviews pleadings and keeps abreast of the
case by conferring with counsel. Rivera v. Fair Chevrolet Geo. Partnership, 165
F.R.D. 361, 364-65 (D. Conn. 1996).
Defendant has not shown that the named plaintiffs’ interests “are
antagonistic” to that of the proposed class, even if they have received upgrades
to their discharge status. In fact, the named plaintiffs are particularly well
qualified as class representative because they have experienced the stigma of
less-than-Honorable discharges and have participated in the upgrade application
process. The named plaintiffs retain an enhanced understanding of the process
and considerations that are important to this action. Further, plaintiff Kennedy is
the founder of the Connecticut Chapter of Iraq and Afghanistan Veterans of
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America, a veterans advocacy membership organization. The Court finds that
the named plaintiffs have a sufficient interest in the outcome of the case to
ensure vigorous advocacy.
Plaintiffs are represented by attorneys with experience litigating class
actions and issues involving veterans seeking discharge upgrades. Accordingly,
adequacy of representation is assured.
Federal Rule of Civil Procedure 23(b)
Plaintiffs seek to certify this class pursuant to Rule 23(b)(2), which
provides that a class may be certified if “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.” Certification of an injunctive or declaratory judgment class is
not appropriate when “each individual class member would be entitled to
a different injunction or declaratory judgment against the defendant.” Dukes,
564 U.S. at 360. As Dukes elaborated, “the key to the (b)(2) class is the
indivisible nature of the injunctive or declaratory remedy warranted—the notion
that the conduct is such that it can be enjoined or declared unlawful only as to all
of the class members or as to none of them.” Id.
Here, an injunction to ensure that adherence to the directive of the Hagel
Memo relevant to the review of less-than-Honorable discharges will provide relief
to each class member as a whole. See Manker, 2018 WL 5995486, at *9.
Accordingly, the Court finds that this case is appropriate for class certification
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under Federal Rule of Civil Procedure 23(b)(3). The Court will grant the motion
for certification.
. CONCLUSION
For the foregoing reasons, the motion for certification [Doc. #51] is
GRANTED.
In accordance with Federal Rule of Civil Procedure 23(c)(1), the Court
certifies the following class:
All Army, Army Reserve, and Army National Guard veterans of the Iraq
and Afghanistan era—the period between October 7, 2001 to present—who:
(a) were discharged with a less-than Honorable service characterization
(this includes General and Other than Honorable discharges from the
Army, Army Reserve, and Army National Guard, but not Bad Conduct or
Dishonorable discharges);
(b) have not received discharge upgrades to Honorable; and
(c) have diagnoses of PTSD or PTSD-related conditions or record
documenting one or more symptoms of PTSD or PTSD-related conditions
at the time of discharge attributable to their military service under the
Hagel Memo standards of liberal and special consideration.
The representatives will be the named plaintiffs Stephen M. Kennedy and
Alicia J. Carson, and class counsel will be the Yale Law School’s Veterans Legal
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Services Clinic and the law firm Jenner & Block LLP. This order may be altered
or amended before final judgment consistent with Federal Rule of Civil Procedure
23(c)(1)(C).
/s/Warren W. Eginton
Warren W. Eginton,
Senior U.S. District Judge
Dated this 21st day of December 2018 at Bridgeport, Connecticut.
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