Manker et al v. Spencer
Filing
79
RULING (see attached). Defendant's 67 Motion to Dismiss is DENIED. Defendant's alternative 67 Motion for a Remand is GRANTED IN PART, in that the applications of Plaintiffs Manker and Doe for discharge upgrades are reman ded to the Naval Discharge Review Board ("NDRB") for further administrative consideration. The NDRB must issue its decisions following the consideration on remand not later than March 7, 2020. Otherwise, Defendant's Motion for a Remand is DENIED. Additionally, proceedings with respect to the claims of Plaintiffs Manker and Doe are STAYED pending decisions on the remands directed in the attached Order. No other proceedings are stayed. Discovery in this case is no t limited to the administrative records generated by the applications of Plaintiffs Manker and Doe; and, discovery will be supervised by Magistrate Judge Spector pursuant to a separate Order of Reference. Signed by Judge Charles S. Haight, Jr. on November 7, 2019. (Gitlin, A.)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF 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,
Civil Action No.
3:18-cv-372 (CSH)
Plaintiffs,
NOVEMBER 7, 2019
v.
RICHARD V. SPENCER, Secretary of the
Navy,
Defendant.
RULINGS ON DEFENDANT’S MOTION TO DISMISS OR REMAND
AND ON CROSS-MOTIONS FOR DISCOVERY
HAIGHT, Senior District Judge:
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.
I.
INTRODUCTION
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
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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
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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.
II.
DEFENDANT’S MOTION TO DISMISS OR REMAND
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. 671, 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.
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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
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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
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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 subregulatory 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
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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
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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
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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
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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
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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:
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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 filing this
APA action. Defendant does not contend otherwise.
Defendant’s theory is that exhaustion is required here because Plaintiffs challenge military
personnel decisions. Id. Defendant places primary reliance upon Guitard v. United States Secretary
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of the Navy, 967 F.2d 737 (2d Cir. 1992), where the Second Circuit reversed a preliminary injunction
barring the Navy from discharging a member of the Naval Reserve on the ground that the plaintiff
had failed to exhaust his administrative remedies. The Second Circuit reasoned that “[u]nder the
exhaustion rule, a party may not seek federal judicial review of an adverse administrative
determination until the party has first sought all possible relief within the agency itself,” emphasizing
that “[t]he imperatives concerning military discipline require the strict application of the exhaustion
doctrine in discharge cases.” Id. at 740 (emphasis added). The Guitard plaintiff does not appear to
have filed his action under the APA. Id. Defendant also relies upon Jones v. New York State Division
of Military and Naval Affairs, 166 F.3d 45, 54–55 (2d Cir. 1999)—a non-APA, 42 U.S.C. § 1983
case—where the Second Circuit cited Guitard. In that case, the Court of Appeals held that the
plaintiff’s exhaustion of administrative remedies was a prerequisite to his § 1983 action challenging
his removal from service based on the Army National Guard’s alleged failure to comply with its own
regulations. See id. at 55.
Defendant’s reliance upon Guitard and Jones is misplaced. Unlike those cases, Plaintiffs at
bar are suing under the APA; and, the Second Circuit’s decisions in Guitard and Jones antedate the
Supreme Court’s decision in Darby limiting the exhaustion of remedy doctrine in APA cases. In
Brezler, an APA-based action where plaintiff challenged a military disciplinary proceeding against
him and separation recommendation, “the government urge[d] the Court to disregard Darby and apply
Jones . . . because the military enjoys a special status reflected in the existence of two systems of
justice . . . one for civilians and one for military personnel.” 220 F. Supp. 3d at 324 (citation and
internal quotation marks omitted). Judge Bianco rejected the Navy’s invitation:
This Court declines to do so. Although the law accords the sui
generis nature of military life unique deference, the plain language of
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the statute and Darby’s dictate, which governs “where the APA
applies,” 509 U.S. at 154, are dispositive. The Court will not require
plaintiff to exhaust all avenues of administrative review of a final
agency decision where Congress and the military have not imposed
such a requirement.
...
Though the government argues that Jones stands for the proposition
that exhaustion is required for any claim based on the military’s
failure to follow regulations even where the statute under which relief
is sought does not require it, the better view is that Jones merely
reflects that Darby, by its own terms, is limited to APA cases. See
Darby, 509 U.S. at 153–54 (“Of course, the exhaustion doctrine
[recognized by the Second Circuit] continues to apply as a matter of
judicial discretion in cases not governed by the APA.”). . . . Jones and
Guitard are of no moment here because Darby and the APA preclude
imposition of an exhaustion requirement not found in statute or rule.
Id. at 324 (some citations and internal quotation marks omitted).
I agree with Judge Bianco’s analysis in Brezler.1 I hold in this case that the Supreme Court’s
decision in Darby and the plain language of the APA preclude the Defendant Secretary of the Navy
from imposing an exhaustion of administrative remedy requirement upon Manker, Doe, or members
of the Plaintiff class.
4.
Failure to Seek Review by Civilian Review Board
Defendant specifies as a separate basis for lack of subject matter jurisdiction the fact that
Plaintiffs have not sought review of a civilian review board decision. Doc. 67-1, at 21. Defendant’s
Brief demonstrates that Defendant is referring to the Board for the Correction of Naval Records
(“BCNR”), which the Navy established as “the highest level of administrative review within the
Department of the Navy,” generally composed of a “three-member panel of rotating civilians,” with
1
Judge Bianco filed his district court opinion in Brezler on December 6, 2016, a time when
his opinions were not binding upon me. I agree with Brezler because it is persuasive. Judge Bianco
was elevated to the Second Circuit on May 17, 2019.
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the power to “review an NDRB decision and provide further relief.” Id. at 6.
Defendant’s reference to a BCNR review, while stated separately, is in effect a further
invocation of the non-justiciable and exhaustion of remedies doctrines that run through Defendant’s
briefs like leitmotivs. That persistence emerges clearly in Defendant’s Reply Brief, where Defendant
argues that “[f]ollowing the rationale in Guitard, Plaintiffs should have first addressed any of the
NDRB’s alleged constitutional infirmities with the BCNR before invoking this Court’s jurisdiction.”
Doc. 69, at 6. “Guitard” is a reference to Guitard, 967 F.2d at 737, which Judge Bianco noted in
Brezler was “of no moment” since the later-decided Darby and the APA “preclude imposition of an
exhaustion requirement not found in statute or rule.” 220 F. Supp. 3d at 324.
Defendant professes to find, in Navy and Department of Defense regulations, provisions
requiring the exhaustion of administrative remedies before judicial review of agency action may be
sought. Thus, Defendant’s Reply Brief states that “Plaintiffs failed to exhaust their administrative
remedies by not seeking review by the BCNR,” and “the applicable regulations dictate that the
Plaintiffs should have sought relief from the JSRA and the BCNR, not just the prudential
considerations already detailed in the Defendant’s [Main] Brief.” Doc. 69, at 7. The regulations in
question do nothing of the kind. The Navy regulation, quoted in Defendant’s Reply Brief, advises
an applicant for agency action that if he or she has “otherwise exhausted their opportunities before
the NDRB, the Applicant may petition the Board for Correction of Naval Records . . . for further
review.” Id. (alterations omitted). That sort of permissive internal agency review falls well short
of the “expressly required” judicial restrictions specified by the APA, in which, as the Supreme
Court noted in Darby, “Congress effectively codified the doctrine of exhaustion of administrative
remedies in § 10(c).” 509 U.S. at 153.
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In the instant case, the Defendant Secretary is contending for what we may call a “military
exception” to the decision announced in Darby. That exception found favor with the district court
in Saad v. Dalton, 846 F. Supp. 889 (S.D. Cal. 1994), which dismissed a Naval Reserve officer’s
action seeking to enjoin her involuntary separation from the military service. That plaintiff could
have petitioned the BCNR for relief, but did not do so before filing suit, a failure to act that led to
the court dismissing the action. Id. at 891. The district court said that “[u]ntil the plaintiff proceeds
before a Board established by Congress to resolve military personnel disputes, this court will not
address (1) whether the court has the authority to review the claims or (2) if so, the merits of those
claims.” Id. The plaintiff in Saad cited Darby for the proposition that she “need not exhaust her
available remedies” before filing suit, but the court disregarded Darby as “clearly distinguishable.”
Id. The court reasoned:
The Darby case involved the interpretation of the Administrative
Procedure Act in the context of a Department of Housing and Urban
Development administrative ruling. Review of military personnel
actions, however, is a unique context with specialized rules limiting
judicial review. Chappell, 462 U.S. at 301–04.2 Accordingly, the
court dismisses the plaintiff’s complaint for failure to exhaust
available administrative remedies.
Id. Saad holds that military personnel cases fall outside of, or constitute a military exception to, the
narrow boundaries of mandated remedy exhaustion the Court specified in Darby. I am asked to
reach the same conclusion in the case at bar.
I decline to do so because the distinct weight of authority is squarely to the contrary. Judge
Bianco dealt with that issue in Brezler, a military personnel case where “the government urge[d] the
2
Chappell v. Wallace, 462 U.S. 296 (1983).
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Court to disregard Darby and apply Jones3 to [an] APA action because the military enjoys a ‘special
status’ reflected in the existence of ‘two systems of justice . . . one for civilians and one for military
personnel.” 220 F. Supp. 3d at 324 (quoting Chappell, 462 U.S. at 303–04). Judge Bianco declined
that invitation, and refused to “require plaintiff to exhaust all avenues of administrative review of
a final agency action where Congress and the military have not imposed such a requirement.” Id.
He then reasoned:
This holding is in harmony with the weight of post-Darby case law
finding that there is no “military exception” to Darby. See, e.g., . . .
Crane v. Sec’y of Army, 92 F. Supp. 2d 155, 161 (W.D.N.Y. 2000)
(collecting cases and observing that, “[a]lmost without exception,
federal courts throughout this country have also declined to create a
military exception to the Court’s decision in Darby”). But see Saad
v. Dalton, 846 F. Supp. 889, 891 (S.D. Cal. 1994).
Id.
While Judge Bianco acknowledged in Brezler that the Saad opinion in the Southern District
of California went the other way (preceding his citation to that case with the telltale phrase, “But
see”), he agreed with those federal courts which, following Darby, have “almost without exception”
refused to fashion a “military exception” to Darby, if the effect of the exception would be to impose
upon APA plaintiffs an exhaustion requirement which neither the statute nor the underlying agency
regulations contained. Id. The conclusion I reach in this case is in accord with that greater weight
of authority.
In short, the plain language of section 10(c) of the APA, cast in the broadest possible terms,
means just what it says. The case at bar is brought pursuant to the APA. The statute’s wording in
section 10(c) and the Supreme Court’s decision in Darby create and define the boundaries of the
3
Jones v. New York State Div. of Military & Naval Affairs, 166 F.3d 45 (2d Cir. 1999).
-17-
requisite exhaustion of administrative remedies in an action brought pursuant to the APA. They
preclude Defendant’s contention that any failure by Plaintiffs to exhaust deprives this Court of
jurisdiction over their claims. The Court noted in Darby that “Congress effectively codified the
doctrine of exhaustion of administrative remedies in § 10(c).” 509 U.S. at 153. I cannot accept the
outlier district court’s conclusion in Saad, echoed by the Defendant Secretary in the case at bar, that
Congress’s codification of exhaustion in the statute created one protocol for HUD cases and none
or a different one for military cases.
The Darby decision applies to all APA cases. The case at bar is one of them. Defendant is
not entitled to challenge the Court’s subject matter jurisdiction on the ground of failure to exhaust
administrative remedies, or some alternative prudential principle.
5.
Mootness of Plaintiffs’ Claims
Next, the Defendant Secretary asserts that “Plaintiffs’ claims concerning the NDRB’s
application of the Hagel Memo are moot.” Doc. 67-1, at 23.
Defendant bases that assertion upon a recitation of essentially undisputed facts appearing
in his Main Brief and captioned, “the Hagel Memo and the Evolution of the Liberal Consideration
Standard.” Id. at 6–9. That reference is to the previously noted memorandum issued by thenSecretary Hagel mandating that “liberal consideration” be given to veterans with PTSD and similar
mental health conditions, and to records indicating symptoms of those conditions. On this aspect
of the case, Defendant stresses that Hagel’s Memo was issued on September 3, 2014, to “Military
Department Boards for Correction of Military Naval Records” (BCM/NRs), separate and distinct
entities from the NDRB, the tribunal to which Manker and Doe addressed their unsuccessful
petitions for discharge upgrades. Id. at 6–7. On August 25, 2017, Undersecretary of Defense
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Anthony Kurta “issued a memo that provided guidance clarifying and expanding upon the Hagel
Memo,” which “for the first time” stated that the Hagel Memo “also applies to both BCM/NRs and
DRBs.” Id. at 7–8. By letter dated September 18, 2017, J.A. Riehl, the Director of the Secretary of
the Navy Council of Review Boards, directed the NDRB to ensure its compliance with the Kurta
Memo. Id. at 9.
Defendant’s mootness argument proceeds from the proposition that “the Kurta Memo and
the Riehl Policy Letter now require the NDRB to apply the Hagel Memo, which is essentially the
same relief that Plaintiffs seek from this Court.” Id. at 23. It follows, the argument concludes, that
“as it pertains to the NDRB’s application of the Hagel Memo, the issue is moot thereby depriving
this Court from having subject matter jurisdiction.” Id.
It is generally held that “[w]hen a case becomes moot, the federal courts lack[] subject matter
jurisdiction over the action.” Fox v. Bd. of Trustees of State Univ. of New York, 42 F.3d 135, 140
(2d Cir. 1994) (citation and internal quotation marks omitted). However, the question is factintensive, and the circumstances of this case do not provide a basis for rejecting subject matter
jurisdiction over the Complaint on the ground of mootness.
The essence of Defendant’s argument is that, given the chronology of the Hagel, Kurta, and
Riehl writings, Manker and Doe’s individual claims have become moot, which says nothing about
other members of the Plaintiff class, whose claims continue unaffected. In Kennedy v. Esper, a
comparable case where a certified class of PTSD-afflicted Army veterans sued the Secretary of the
Army for disregarding the Hagel Memo, Judge Eginton held that “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.” No. 16-cv-2010 (WWE), 2018 WL 6727353, at *3 (D. Conn. Dec. 21, 2018)
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(citation omitted).
Even as to the class representatives, Manker and Doe, individually, Defendant’s Reply Brief
concedes that “Defendant’s argument concerning mootness was limited to the NDRB’s application
of the Hagel Memo.” Doc. 69, at 7 (citation and internal quotation marks omitted). That
acknowledged limitation gives the mootness game away. Contrary to Defendant’s characterization,
Manker and Doe did not file this action for the sole and entire purpose of making the Navy clarify
the Hagel Memo’s applicability to the service’s several boards of review. The conduct of which
Manker and Doe complain is the Navy’s denying them discharge upgrades. Manker and Doe claim
those denials were wrongful because of a number of specified Navy failings and omissions in
addition to the disregard of Hagel’s “liberal consideration” standard. A litigation claim proximately
caused by several challenged forms of conduct is not rendered moot and subject to dismissal in its
entirety because one of those causes may be mooted by subsequent developments.
“As long as the parties have a concrete interest, however small, in the outcome of the
litigation, the case is not moot.” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (citation
and internal quotation marks omitted). “A case becomes moot only when it is impossible for a court
to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Employees Int’l Union,
Local 1000, 567 U.S. 298, 307 (2012) (citation and internal quotation marks omitted). Applying
these familiar principles, I conclude without difficulty that claims asserted by the named or class
Plaintiffs are not beyond the Court’s subject matter jurisdiction on the basis of mootness.
6.
Plaintiffs’ Standing to Challenge the NDRB
Defendant’s next ground for dismissal is that “Plaintiffs lack standing to request broadsweeping injunctions clearly not authorized by the APA”—relief that is available only if the agency’s
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actions “were already ‘required’ and ‘discrete.’” Doc. 67-1, at 24 (quoting Norton v. S. Utah
Wilderness All., 542 U.S. 55, 64 (2004)). “Here,” Defendant continues, “the agency actions
Plaintiffs request were neither required nor discrete.” Id.
Defendant makes two arguments in support of that proposition. The first is a reprise of
Defendant’s contention that “the NDRB was not required to apply the Hagel Memo because it did
not apply to the NDRB when it considered the named Plaintiffs’ petitions.” Id. I considered that
chronology supra, found nothing in it to warrant dismissal of the Complaint, and adhere to that
conclusion.
Defendant’s second argument is that “the APA allows challenges only to ‘discrete action[s],’
and does not authorize ‘broad programmatic attack[s] against agencies.” Id. (quoting Norton, 542
U.S. at 62–63). That is a path to perdition, Defendant contends, since appellate courts caution
against district courts entering “general orders compelling compliance with broad statutory
mandates,” lest it become the inappropriate “task of the supervising court, rather than the agency,
to work out compliance with the broad statutory mandate, injecting the judge into day-to-day agency
management.” Id. (quoting City of New York v. U.S. Dep’t of Defense, 913 F.3d 423, 431 (4th Cir.
2019)).
Plaintiffs respond that their “allegation that the NDRB has systematically denied veterans a
fair discharge review process through several errors does not transform Plaintiffs’ claims into a
‘broad programmatic attack’ on agency policy.” Doc. 68, at 33. Plaintiffs add that “by certifying
a nationwide class action, the Court necessarily concluded that the harms were both numerous and
common to the proposed nationwide class.” Id. at 34.
These conflicting contentions implicate the Court’s subject matter jurisdiction. Plaintiffs’
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action against the Secretary of the Navy constitutes a suit against the United States. The question
of the government’s sovereign immunity from suit arises. “Sovereign immunity is jurisdictional in
nature” and “[a]bsent a waiver . . . shields the Federal Government and its agencies from suit.”
FDIC v. Meyer, 510 U.S. 471, 475 (1984).
In that regard, Plaintiffs invoke the APA. “The APA waives the federal government’s
sovereign immunity for a limited set of suits, brought by ‘a person suffering legal wrong because of
agency action’ to obtain relief ‘other than money damages.’” City of New York, 913 F.3d at 430
(quoting 5 U.S.C. § 702). “Judicial review under the APA, moreover, is limited to ‘final agency
actions.’” Id. (quoting 5 U.S.C. § 704). “As these provisions of the APA make plain, subject matter
jurisdiction is lacking if the plaintiff fails to challenge a particular ‘agency action’ that is fit for
review. The term ‘action’ as used in the APA is a term of art that does not include all conduct on
the part of the government. . . . [T]he Administrative Procedure Act does not provide review for
everything done by an agency.” Id. at 430–31 (citations and internal quotation marks omitted).
Because the APA is a limited waiver of sovereign immunity, a district court must initially
determine on which side of the line a particular action invoking the APA falls: “fit for review” within
the statute’s limitations (and thus within the court’s subject matter jurisdiction), or non-reviewable
(so that jurisdiction is lacking). That preliminary analysis is not necessary when the government’s
waiver of sovereign immunity is more broadly stated. For example, the “[w]aiver of immunity”
section of the Public Vessels Act provides simply that in cases within the district court’s admiralty
jurisdiction, “[a] civil action in personam in admiralty may be brought, or an impleader filed, against
the United States for . . . damages caused by a public vessel of the United States.” 46 U.S.C. §
31102(a)(1). The APA is more narrowly drawn. The threshold question is whether the class action
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at bar falls within the boundaries of that statute’s sovereign immunity waiver.
On that issue, the case at bar bears a significant resemblance to Ramirez v. United States
Immigration and Customs Enforcement, 338 F. Supp. 3d 1 (D.D.C. 2018), where three immigrant
teenagers who entered the United States as unaccompanied alien children brought a purported class
action under the APA against the United States Immigration and Customs Enforcement (“ICE”)
agency. The plaintiffs alleged that when they reached their eighteenth birthdays, ICE transferred
them to adult detention centers without considering less restrictive placements, in violation of a
relevant act of Congress. See id. at 11. The plaintiffs also contended that the defendants “routinely
and systematically fail[ed] to abide by this statutory provision.” Id. These three plaintiffs sought
certification of a class defined as “[a]ll former unaccompanied alien children who are detained or
will be detained by ICE” after such transfers and “as to whom ICE did not consider placement in the
least restrictive setting available,” as required by statute. Id. at 43. The district court denied the
government’s motion to dismiss plaintiffs’ complaint and granted plaintiffs’ motion for the prayedfor class certification. Id.
In an earlier opinion, Ramirez v. United States Immigration & Customs Enforcement, 310
F. Supp. 3d 7, 34 (D.D.C. 2018), the district court granted the individual plaintiffs’ motion for a
preliminary injunction. Opposing that motion, the government defendants “contest[ed] whether
Plaintiffs have identified any ‘agency action’ subject to judicial review pursuant to the APA”; and,
“[t]hey contend[ed] that ‘Plaintiffs’ claims constitute[d] a generalized complaint that the agency
[was] not properly following the statute in their cases.’” Id. at 20. That is the argument the
Secretary of the Navy makes in this case.
District Judge Contreras rejected that contention. According to the court, “the decisions of
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where to place Plaintiffs . . . after they were transferred to DHS custody constitute agency action for
APA purposes.” Id. The court reasoned:
Plaintiffs in this case have not lodged a generalized attack, as
Defendants assert. Plaintiffs are not seeking wholesale change to an
entire federal program . . . . Nor are they requesting that this Court
inject itself into the day-to-day agency management. . . . Rather,
Plaintiffs in this case seek to compel an agency to take the discrete
and concrete action of considering statutorily specified factors in
determining where and how to place them—and similarly situated
others—now that they have aged out of HHS’s care and custody.
Defendants confuse aggregation of similar, discrete purported
injuries—claims that many people were injured in similar ways by the
same type of agency action—for a broad programmatic attack. The
Court sees Plaintiffs’ claims differently.
Id. at 21–22 (emphases added and citation omitted). In the instant case, the Secretary of the Navy
has fallen prey to the same confusion. The claims of the veterans in this case—that the Navy failed
to consider specified factors in determining whether to upgrade their discharges—mirror the claims
of the alien teenagers in Ramirez that ICE failed to consider factors in determining their placement.
Both classes of claims are cognizable under the APA.
When Ramirez subsequently returned to the district court on motions to dismiss and for class
certification, the defendants again questioned—“just as they did at the preliminary injunction stage
of this litigation—whether Plaintiffs have identified final agency action that is subject to review
under the APA.” Ramirez, 338 F. Supp. 3d at 39. Judge Contreras adhered to his earlier conclusion
that the agency’s conduct was reviewable under the APA. He restated his reasoning:
Plaintiffs have not lodged a generalized attack, seeking wholesale
change to a federal program. They instead seek to compel Defendants
to conduct the inquiry mandated by statute before determining where
to place each former unaccompanied minor now in DHS’s care and
custody. Approaching finality pragmatically, this Court reasoned that
Defendants had consummated a decision-making process by failing
to consider each Plaintiff for less restrictive placements as required
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by the statutory provision and that legal consequences flowed from
those failures. . . . Thus, the Court again concludes that this suit
concerns final agency action reviewable under the APA.
Id. at 40–41. Judge Contreras’s opinions in Ramirez are not binding on me, but they are persuasive,
and his reasoning applies squarely to the issues presented by this case.
Defendant’s contention that Plaintiffs impermissibly “launch a broad programmatic challenge
against the Navy Discharge Review Board,” Doc 67-1, at 24, depends principally upon two Supreme
Court decisions: Norton, 542 U.S. at 64, and Lujan v. National Wildlife Federation, 497 U.S. 871
(1990). Neither case supports the proposition that the NDRB’s conduct alleged in the Complaint
may fairly be characterized in that fashion.
The Norton plaintiffs sought to compel agency action “unlawfully withheld or unreasonably
delayed” as those phrases are used in 5 U.S.C. § 706(1) of the APA. See Norton, 542 U.S. at 57.
With respect to complaints that an agency failed to act, the Court held in Norton that “a claim under
§ 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency
action that it is required to take.” Id. at 64. The Court found in the case no “agency action” subject
to judicial review where plaintiff complained that an agency’s decision to permit use of off-road
vehicles on certain land violated the agency’s mandate to “continue to manage [that land] . . . in a
manner so as not to impair the suitability of such areas for preservation as wilderness.” Id. at 65.
The Court explained that “compelling compliance with broad statutory mandates” would “inject[]
the judge into day-to-day agency management,” an impermissible result since “[t]he prospect of
pervasive oversight by federal courts over the manner and pace of agency compliance with such
congressional directives is not contemplated by the APA.” Id. at 65–67.
The Court’s opinion in Norton notes that its “limitation to discrete agency action precludes
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the kind of broad programmatic attack we rejected in Lujan. . . . There we considered a challenge
[to the agency’s] land withdrawal review program, couched as unlawful agency ‘action’ that the
plaintiffs wished to have ‘set aside’ under [APA] § 706(2).” Id. at 64. The Court in Lujan refused
to consider that claim under the APA, reasoning that unless Congress explicitly provides otherwise,
courts may “intervene in the administration of the laws only when, and to the extent that, a specific
‘final agency action’ has an actual or immediately threatened effect”—particular circumstances the
Court could not discern in the Lujan complaint. 497 U.S. at 894. The Court reached that result in
Lujan because, in its view, an APA plaintiff “cannot seek wholesale improvement of this program
by court decree, rather than in the offices of the Department or the halls of Congress, where
programmatic improvements are normally made.” Id. at 891.
The class action that Ramirez holds to be cognizable under the APA more closely resembles
the case at bar than the complaints in Norton and Lujan, which did not pass APA muster. Judge
Contreras said in Ramirez that “[p]laintiffs are not seeking wholesale change to an entire federal
program like the plaintiffs were in Lujan. Nor are they requesting that this Court inject itself into
the day-to-day agency management, as the plaintiffs were in SUWA.” 310 F. Supp. 3d at 20. Nor,
for that matter, are the class member Plaintiffs in the case at bar seeking either of those forbidden
objectives.
Each individual member of the certified class of discharged Navy or Marine Corps veterans
claims that the NDRB wrongfully failed to consider or comply with specified statutorily or
regulatory factors, with the result that the veteran’s application for a discharge upgrade was
impermissibly denied.
Each denial of a class member’s upgrade application constitutes a
particularized agency action with respect to that veteran. A significant number of such agency
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actions gave rise to an “aggregation of similar, discrete purported injuries” and resulting “claims that
many people were injured in similar ways by the same type of agency action.” Ramirez, 310 F.
Supp. 3d at 21.
As the district court correctly held in Ramirez, that aggregation of specific and discrete claims
is reviewable under the APA. See id. at 23. A complaint asserting them may not be dismissed as
a “broad” and “programmatic” attack upon a federal agency of the sort rejected by Norton and Lujan,
decisions which bear no meaningful resemblance to the case at bar.
For the foregoing reasons, I reject the Secretary’s several contentions that the conduct of the
NDRB alleged in the Complaint cannot be subjected to judicial review under the APA. Accordingly,
this Court has subject matter jurisdiction to consider the merits of the case.4
7.
Injunctive Remedies Sought by Plaintiffs
An additional consideration may be noted here, although it relates more to remedy than
jurisdiction.
Defendant argues in his Reply Brief that Plaintiffs cannot request injunctive relief because
they “do not present claims under § 706(1) [of the APA].” Doc. 69, at 9. It is true that all the claims
in the Complaint (class and individual) are pleaded under § 706(2) of the APA. Doc. 1 ¶¶ 208–09,
212–13, 221, 227, 234, 241. However, I am not prepared to hold on this motion to dismiss that,
whatever the proof may eventually demonstrate, the Court could not fashion relief in the form of an
injunctive order.
4
Attention must be paid to further facts that may be developed during discovery. The
question of a district court’s subject matter jurisdiction is of continuing concern. See Fed. R. Civ.
P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”).
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Judge Eginton considered the availability of injunctive relief in the comparable Army case
under the APA, where he observed that the APA provides for “any applicable form of legal action,
including . . . mandatory injunction.” Kennedy, 2018 WL 6727353, at *3 (citing 5 U.S.C. § 703).
Judge Eginton cited to the Supreme Court’s decision in Bowen v. Massachusetts, 487 U.S. 879, 905
(1988), and explained 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.”
Id. (internal quotation marks omitted).5
Judge Eginton applied those principles in the Army case, where “[p]laintiffs have requested
that the Court’s injunction rectify the ADRB’s failure to apply the decisional standards already
established by the Hagel Memo and now codified at 10 U.S.C. § 1553.” Id. (internal quotation
marks omitted). That same relief is sought by the plaintiffs in this case, against the NDRB. Judge
Eginton concluded in the Army case:
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. The Court will determine
the scope of the any injunctive relief, if appropriate, at a later stage of
this action.
Id. (citation omitted). Those are correct and sensible conclusions. I agree with them, and will
proceed in the same manner in the case at bar.
B.
Failure to State a Claim
Defendant’s motion under Rule 12(b)(6) to dismiss Plaintiffs’ complaint for failure to state
a claim is based solely upon Defendant’s perception of “Plaintiff’s incorrect legal conclusion that
5
In the case at bar, counsel for Plaintiffs contended at oral argument that “[t]here is no rule
that a 706(2) case precludes injunctive relief. And courts often enjoin agencies from taking unlawful
action on 706(2) cases.” Doc. 71 (Transcript of Oral Argument), at 39 ¶¶ 17–20.
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the Hagel Memo applied to the NDRB when it reviewed the named Plaintiffs’ petitions.” Doc. 67-1,
at 27. “Under the plain language of the Hagel and Kurta Memos,” Defendant’s argument continues,
“the Hagel Memo did not apply to the named Plaintiffs when the NDRB considered their petitions.”
Id. His argument concludes that, reading the Hagel and Kurta Memos together, the DRBs—a group
of entities that includes the NDRB—“were not required to apply the Hagel Memo guidance until
DoD issued the Kurta Memo.” Id. at 29. As such, according to Defendant, “any claim based on the
incorrect legal conclusion that the Hagel Memo applied to the DRBs prior to the Kurta Memo fails
to state a claim for which relief can be granted.” Id.
The chronology of the Hagel and Kurta Memos is recounted in Part II.A.5, supra, which
discussed Defendant’s Rule 12(b)(1) jurisdictional challenge based on mootness. Defendant repeats
that chronology in the present Rule 12(b)(6) context. It is necessary to restate and expand somewhat
upon the relevant facts.
Secretary of Defense Hagel issued his “liberal consideration” Memo on September 3, 2014.
The Hagel Memo was addressed to “Secretaries of the Military Departments.” Its subject was stated
in a caption as: “Supplemental Guidance to Military Boards for Correction of Military/Naval
Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress
Disorder.” In the case at bar, the Defendant Navy Secretary says that those Boards “are authorized
under 10 U.S.C. § 1552,” and the Hagel Memo “did not apply to Discharge Review Boards, which
are authorized under 10 U.S.C. § 1553.” Doc. 19, at 5.
On February 24, 2016, Deputy Under Secretary of Defense Brad Carson sent a Memo,
similarly addressed and captioned, which referred to the “Supplemental Guidance” contained in the
Hagel Memo, stressed its importance, instructed “the BCMRs/BCNR” to waive any applicable
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statutes of limitations that would bar application of the Guidelines, and added:
Similarly, cases considered previously, either by Discharge Review
Boards, or by BCMRs or the BCNR, but without benefit of the
application of the Supplemental Guidance, shall be, upon petition,
granted de novo review utilizing the Supplemental Guidance.
Doc. 19-1, at 2. Defendant at bar says in his Brief Opposing Class Certification: “Like the Hagel
Memo, the Carson Memo only applied to BCMRs and BCNR, not the Discharge Review Boards.”
Doc. 19, at 6.
On December 23, 2016, Congress added subsection (d)(3) to 10 U.S.C. § 1553. That new
provision required Discharge Review Boards to review cases with “liberal consideration” where
“post-traumatic stress disorder or traumatic brain injury potentially contributed to the circumstances
resulting in the discharge or dismissal or to the original characterization of the member’s discharge
or dismissal.” 10 U.S.C. § 1553(d)(3)(A)(ii). Defendant’s Brief Opposing Class Certification states:
“After this provision was enacted, NDRB began applying and specifically referencing the liberal
consideration standard under 10 U.S.C. § 1553(d)(3) to applications that met the applicable criteria.”
Doc. 19, at 7.
On August 25, 2017, Under Secretary of Defense A.M. Kurta sent a Memo to the Military
Department Secretaries which, Defendant’s Brief acknowledges, “applied to both Military Discharge
Review Boards and Boards for Correction of Military/Naval Records.” Id. at 7. In that regard, the
attachment to the Kurta Memo contains the “clarification” that the Carson Memo “applies in full to
BCM/NRs but also applies to DRBs with regards to de novo reconsideration of petitions previously
decided without the benefit of all applicable supplemental guidance.” Doc. 1-2, at 5 ¶ 23. The Kurta
Memo attachment gave detailed comments with respect to the implementation of what has come to
be known as “liberal consideration.”
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Obedient to that communication, on September 18, 2017, J. A. Riehl, the Secretary of the
Navy Council of Review Boards, sent to the President of the NDRB and legal counsel of the Council
a letter enclosing the Kurta Memo and instructing that “[e]ffective immediately, the Naval Discharge
Review Board will ensure implementation of the guidance set forth in the enclosure in its review of
all cases either pending adjudication or received in the future,” and must also include that guidance
“in the NDRB training curriculum to ensure that all board members are familiar with and apply the
guidance when voting cases.” Doc. 19-1, at 4.
The applications of Manker and Doe to the NDRB for discharge upgrades—and the rejection
of both by that Board—may be fixed within this regulatory and statutory time frame. Manker filed
his application on June 24, 2016. Doc. 72-1, at 18. Doe filed his on June 2, 2016. Doc. 72-4, at 4.
The Hagel Memo had been issued in September 2014, before both applications. Defendant asserts
that “[i]n November 2016, just prior to Congress requiring DRBs to review PTSD cases with liberal
consideration and well before the DoD issued the Kurta Memo, the NDRB considered both named
Plaintiffs’ petitions for changes to their respective characterizations of service.” Doc. 67-1, at 11.
While at that time of consideration the Kurta Memo still lay in the future, the Carson Memo had
been issued almost one year earlier, in February 2016. Doc. 19-1, Exs. 1, 2. The NDRB’s “final
decision” denying Manker’s application for a discharge upgrade is dated December 20, 2016. Doc.
72-1, at 2. The NDRB’s “final decision” denying Doe’s application is dated January 30, 2017. Doc.
72-4, at 1. As of those dates of decision, the Hagel and Carson Memos had been issued. On
December 23, 2016, three days after the agency decision denying a discharge upgrade to Manker and
five weeks before the agency decision denying that relief to Doe, Congress had enacted the provision
which codified the requirement that DRBs apply the Hagel Memo’s liberal consideration standard.
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See 10 U.S.C. § 1553(d)(3)(A)(ii).
The NDRB decision in Manker’s case, according to the Administrative Record, recites that
“[a]s a result of the Applicant’s claim of PTSD or TBI,” in accordance with the Hagel Memo dated
September 3, 2014, “the NDRB included a member who is a physician, clinical psychologist, or
psychiatrist.” Doc. 72-1, at 6. The agency decision denying Manker’s application for a discharge
application is accompanied by an addendum captioned “Information for the Applicant” which
recites: “For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance
set forth in the SECDEF Memorandum of 3 September 2014.” Id. at 11. The reference is to the
Hagel Memo—Hagel having been Secretary of Defense (“SECDEF”) on that date. The NDRB
decision in Doe’s case contains the same recitations. Doc. 72-4, at 5, 7.
The NDRB decisions went on to reject Manker and Doe’s factual contentions that PTSD and
related medical conditions caused or contributed to the misconduct for which these Plaintiffs
received less-than-Honorable discharges. The Complaint alleges that with respect to both Manker
and Doe, the Defendant Navy Secretary (acting through the NDRB) failed to give “liberal
consideration” to PTSD and TBI diagnoses “as directed by the Hagel Memo” and also violated
related but separate rules and procedures. Doc. 1 ¶¶ 230, 237.
There is nothing in these circumstances to justify a conclusion that the Complaint or any part
of it fails to state a claim upon which relief can be granted, that being the requisite for a Rule
12(b)(6) order of dismissal. Defendant’s Rule 12(b)(6) motion appears to be concerned only with
the claims of the two named plaintiffs, Manker and Doe. As to them, Defendant argues: “Under the
plain language of the Hagel and Kurta Memos, the Hagel Memo did not apply to the named Plaintiffs
when the NDRB considered their petitions.” Doc. 67-1, at 27. That plainness of language appears
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to have eluded the members of the NDRB itself, who were careful to state in both decisions that in
its reviews of the applications of both Manker and Doe, the NDRB was acting “in accordance with”
the Hagel Memo and “implemented the guidance” that the Hagel Memo addressed to its readers.
Doc. 72-1, at 6, 11.
Plaintiffs respond in their Opposition Brief that the Carson Memo, issued almost two years
before the NDRB came to consider Manker and Doe, “may well [have been] the reason why the
NDRB itself treated the Hagel Memo as binding in the decisions regarding Mr. Manker and Mr.
Doe.” Doc. 68, at 38. That is speculation on counsel’s part. Given the tenor of the Carson Memo,
however, it is not implausible. What is clear is that whether, at the times the NDRB considered the
Manker and Doe applications, the NDRB regarded itself as required to act in accordance with the
Hagel Memo’s guidance is at the very least a factual issue that can be explored in discovery. On the
present record, that question cannot be answered in the negative as the basis of dismissal for failure
to state a claim, particularly since “for the purposes of a motion to dismiss we must take all of the
factual allegations in the complaint as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That
mandate extends to the factual allegations in the Complaint at bar—i.e., that at the times the NDRB
considered the applications of Manker and Doe, the NDRB “failed, as directed by the Hagel Memo”
to give those PTSD-afflicted veterans the benefit of the “liberal consideration” described in the
Memo. Doc. 1 ¶¶ 230, 237.
Accordingly, it follows that the claims of Manker and Doe cannot be dismissed on a motion
to dismiss where the motion depends upon the parsing of this chronology in a manner favorable to
Defendant but not compelled by the record. Defendant’s Rule 12(b)(6) motion to dismiss the claims
of those two named Plaintiffs will be DENIED.
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Defendant’s Rule 12(b)(6) motion is not even arguably applicable to all the significant
number of additional plaintiffs, namely, the members of the class this Court has certified.
Defendant’s motion to dismiss depends entirely upon when the Hagel Memo and its progeny became
binding upon DRBs like the NDRB. Assuming without deciding that Defendant is correct that this
did not occur until the Kurta Memo was issued, the class consists of veterans who served in the Navy
or Marine Corps from 2001 to the present. The denial of discharge upgrades to at least some of these
veterans must have occurred at a time when even the Defendant would concede that the Hagel Memo
applied to them. A motion to dismiss cannot be fashioned of such stuff as this. Defendant’s Rule
12(b)(6) motion will be DENIED in its entirety.
C.
Voluntary Remand
“In the alternative, the Defendant requests that the Court remand this matter to the Navy for
further administrative action.” Doc. 67-1, at 29. Plaintiffs oppose a remand.
The remand of a case to the lower tribunal from whence it came is a relatively rare creature
of appellate practice. An appellate court’s remand “sets the judgment aside and sends the case back
to the lower court for further proceedings, rather than entering or directing entry of judgment for the
appellant or petitioner.” Stutson v. United States, 516 U.S. 163, 177 (1996) (Scalia, J., dissenting).
When a case is remanded by the Supreme Court, Justice Scalia’s dissent in Stutson notes that “such
an order has acquired the acronym “GVR”—for the Court grants certiorari, vacates the judgment
below, and remands for further proceedings.” Id. (footnote omitted).
In the case at bar, a careful reading of Defendant’s Brief indicates that the voluntary remand
Defendant contemplates is, in one respect at least, narrow in scope. Defendant states that he
“requests that the Court grant [his] motion to voluntarily remand the case to the agency for further
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action and stay proceedings until the Navy renders a decision.” Doc. 67-1, at 31. The immediately
following discussion seems to say that the agency’s “further action” and “decision” Defendant has
in mind is limited to further consideration by the NDRB of Manker’s and Doe’s petitions for
discharge upgrades, and possible revised decisions in their favor alone. Id. at 31–33.
Thus, when Defendant begins his discussion on “Voluntary Remand” with the sentence,
“Plaintiffs contend that the NDRB failed to apply the Hagel Memo when evaluating their petitions
to upgrade their characterizations of service based on claims involving PTSD,” Defendant is talking
about Manker and Doe. Id. at 31. Defendant’s discussion continues: “After the NDRB considered
Plaintiffs’ petitions, DoD issued the Kurta Memo that explicitly made the Hagel Memo applicable
to DRBs.” Id. Defendant adds, “[l]ikely to be beneficial for both Plaintiffs, the Kurta Memo
provides the following instructive guidance.” Id. (emphasis added). “Both Plaintiffs” are Manker
and Doe. Defendant’s Brief reflects upon the several ways in which the contents of the Kurta Memo,
“likely favorable to both Plaintiffs,” might cause the NDRB to reevaluate favorably the previously
rejected petitions of Manker and Doe. That makes the case, in Defendant’s view, for a remand by
this Court to the Navy of the claims of Manker and Doe: “Allowing the Navy to apply this [Kurta
Memo] guidance now to Plaintiffs’ petitions may very well obviate the need for judicial review and
relief. . . . The NDRB’s reevaluation of the evidentiary matters in light of the Hagel Memo and the
Kurta Memo may result in the substantive relief that the Plaintiffs now seek from this Court.” Id.
at 32–33.
Defendant anticipates that following such remand of the Manker and Doe petitions, “it will
take the NDRB approximately 180 days to issue a decision.” Id. at 33. Defendant suggests that
“within 30 days after final action by the Navy, the parties will file with the Court a copy of the new
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decisions,” at which point “the Court can decide if further litigation is necessary or, if necessary,
Plaintiffs need to first exhaust their administrative remedies by seeking relief from BCNR before
returning to the courts.” Id.6
As noted, the Defendant also suggests that the Court “stay proceedings until the Navy renders
a decision” on remand. Id. at 31. That part of the request is broadly stated. Presumably Defendant
means that this entire class action should be stayed pending remand of the Manker and Doe petitions,
although that is not clear. A reader of only the remand section in Defendant’s Brief would have no
idea that the Court had certified a class of thousands of veterans.
The question that arises is whether, in the context of this class action, Manker and Doe’s
individual claims should be remanded to the agency for reconsideration in the light of the Kurta
Memo, with Court proceedings on those claims stayed in the interim. In APA cases, where a
plaintiff challenges agency action as arbitrary or capricious, remands to the agency for
reconsideration frequently occur, as I had occasion to note in a prior discovery ruling in this case.
See Manker, 2019 WL 1506654, at *4 (citation omitted); see also I.N.S. v. Orlando Ventura, 537
U.S. 13, 16 (2002) (“Generally speaking, a court of appeals should remand a case to an agency for
decision of a matter that statutes place primarily in agency hands.”).
Remanding Manker and Doe’s petitions to the NDRB for reconsideration serves the interests
of justice in those particular cases. These two veterans continue to be prejudiced by their less-thanHonorable discharges. If they are entitled to upgrades to Honorable (on which the Court neither
expresses nor intimates a present opinion), that continued deprivation constitutes a serious injustice.
6
That latter suggestion may be disregarded because this Ruling concludes that Plaintiffs’
APA action is not barred by a failure to exhaust administrative remedies. See supra Part II.A.4.
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For the purpose of the remand issue only, I assume without deciding that, as Defendant contends,
the Hagel Memo was not applicable to the NDRB until the Department of Defense issued the Kurta
Memo. Counsel for Defendant describe in their Brief the several ways in which the guidance
articulated by the Hagel and Kurta Memos, on this assumption newly available to the NDRB, might
result in the NDRB reevaluating and granting the petitions of Manker and Doe. I regard those
aspects of counsel’s discussions as reflective of professional analysis, rather than exercises in
advocacy intended to achieve a particular result on this motion.
What the NDRB would make of the Kurta Memo, new to that panel, on remand is a different
question. But it is clear that if the groundwork for decisions favorable to Manker and Doe has, in
fact, been laid, those decisions should take place sooner rather than later. Remand is the vehicle by
which that result, by definition consistent with justice, would be achieved. No circumstance argues
against remand of these individual claims.7
The Court will therefore make an Order of Remand in this case with respect to the petitions
of Plaintiffs Manker and Doe for discharge upgrades. However, there is neither a basis for, nor
justice in staying, the entire class action while that limited remand goes forward. While class
members allege injuries similar to those of Manker and Doe (less-than-Honorable discharges related
7
If on remand the NDRB upgrades the discharges of Manker and Doe to Honorable, those
individuals may no longer qualify as representatives of the Plaintiff class. However, as noted supra,
Judge Eginton observed that “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.” Kennedy,
2018 WL 6727353, at *3; see also Amador v. Andrews , 655 F.3d 89, 100 (2d Cir. 2011) (rejecting
the defense of mootness and noting that after a plaintiff class had been certified, “the termination of
a class representative’s claim does not moot the claims of the unnamed members of the class,” in
part, because “it was certain that a continuing class of similarly situated persons would suffer the
constitutional harm alleged” (quoting Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975)). Should the
need arise, replacement class representatives could presumably be identified. If upon remand the
NDRB refuses to upgrade the discharges of Manker and Doe, that need would not arise.
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to PTSD and TBI), no class member’s claim will be affected by further Navy decisions on Manker’s
or Doe’s claims. The class members are entitled to as prompt a resolution of their claims as the
circumstances and exigencies of case administration allow. The stay of proceedings accompanying
the remand order will apply only to the individual claims asserted by Manker and Doe.
That leaves for decision the disputes relating to pre-trial discovery, which are discussed in
the next Part.
III.
DISCOVERY
During the earliest days of this litigation, a dispute arose as to the proper nature and scope
of pre-trial discovery. At that time, when Defendant contemplated but had not made a motion to
dismiss the action or remand the named Plaintiffs’ claims to the agency for further administrative
action, Plaintiffs declared their intention and right to conduct discovery on all matters related to the
causes of action and defenses raised in the pleadings. That comprehensive concept implicated
numerous Navy policies, procedures, and practices related to discharge upgrade applications.
Defendant, in stark contrast, took the position that this being an APA case where Manker and Doe
were the named Plaintiffs, permissible discovery was limited to the agency administrative records
of those two individuals (not yet produced). I had occasion in the prior ruling to observe: “Stated
briefly, discovery is visualized by Plaintiffs into practically everything and by Defendant into almost
nothing.” Manker, 2019 WL 1506654, at *2.
Since then, the Navy produced the administrative records generated by the NDRB’s denials
of the applications by Manker and Doe; Defendant made his motion to dismiss or remand; and the
Court, in the preceding parts of this Ruling, has denied the motion to dismiss and declined to remand
the entire class action.
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I do not understand these developments to alter the parties’ previously expressed contentions
with respect to the appropriate boundaries of discovery. Docs. 61, 62. I resolve that issue by
concluding that pre-trial discovery in this ongoing class action is not, and in fairness could not be,
limited to the administrative records created by the unsuccessful agency applications of Manker and
Doe for discharge upgrades.
On this aspect of the case, I agree with Judge Eginton’s opinion on discovery in Kennedy.
The complaint in Kennedy was filed in 2016 by two named Army veteran plaintiffs (Kennedy and
Carson, the Army equivalents of Manker and Doe in this case). See Kennedy, 2018 WL 6727353,
at *2. In the Army case, Judge Eginton had previously denied the defendant Secretary’s motion to
dismiss the complaint, and certified a class of plaintiffs comparable to the class that this Court
certified in the instant case in 2018—i.e., veterans who served between October 7, 2001, and the
present and received less-than-Honorable discharges. See id. at *7. With the Army case in that
posture, the proper scope of discovery became an issue. The Secretary argued that discovery should
be limited to the administrative records for the two named plaintiffs, a contention that Judge Eginton
rejected in a discovery order, which I will quote:
On August 28, 2019, defendant filed an administrative record
reflecting the administrative reviews for both plaintiff Kennedy and
Carson. Plaintiffs represent that the extant administrative record of
the two plaintiffs is insufficient to allow the Court meaningful review
of their APA claims challenging systemic failures to implement the
law and official directives or guidance. Where a plaintiff challenges
an agency’s general course of conduct rather than a discrete
adjudication, limited discovery outside of the administrative record
may be necessary where the administrative record does not contain
evidence of the challenged action. The Court should permit only
discovery necessary to effectuate the Court’s judicial review. Here,
plaintiffs maintain that course of conduct evidence is not generally
part of an individual’s administrative record.
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In light of the nature of plaintiffs’ challenge in this action, the Court
will allow plaintiffs to conduct discovery outside of the
administrative record.
Kennedy, No. 3:16-cv-2010, slip op. at 2–3 (D. Conn. Sept. 6, 2019) (citations omitted). Judge
Eginton’s order concluded by directing the parties “to confer and file a proposed discovery plan that
addresses the scope of the discovery sought and that proposes an agreed upon schedule.” Id. at 3.
Judge Eginton also “refer[red] th[e] case to Magistrate Judge Spector to supervise the discovery in
th[e] action.” Id. at 4.
In the case at bar, this Court has also denied a defense motion to dismiss (in this Ruling) and
certified a Plaintiff class (in an earlier ruling). This case is accordingly in the same posture as
Kennedy when Judge Eginton issued his discovery order. I agree with Judge Eginton’s resolution
of the discovery issue, cannot improve upon his reasoning, and make the same order in this case.
The Court allows plaintiffs to conduct discovery outside the administrative record generated
by the Manker and Doe applications. An Order of Reference will be made to Magistrate Judge
Spector, who will supervise discovery in this case, as well as in Kennedy, the Army case.8
IV.
CONCLUSION
For the foregoing reasons, the Court concludes that this class action on behalf of Navy and
Marine Corps veterans against the Secretary of the Navy, which challenges the denial of class
Plaintiffs’ applications for upgrades of their discharges from military service, may go forward.
The action, brought under the APA, falls within the Court’s subject matter jurisdiction. The
8
In a conversation several days before he died, Judge Eginton agreed with the undersigned
that it was sensible to enlist the abilities of Magistrate Judge Spector in the Navy case as well as the
Army case, given that the two cases present the same issues and trial counsel of record are mostly
the same. It is notable, though not surprising, that this fine judge and good man was engaged in the
governance of his cases until, quite literally, the end of his life.
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Court makes an Order of Remand, limited to the two named Plaintiffs. Ongoing discovery, which
will not be limited to those Plaintiffs’ administrative records, will be supervised by a Magistrate
Judge.
In these circumstances, the Court makes this Order:
1.
Defendant’s motion to dismiss the Complaint [Doc. 67] is DENIED.
2. Defendant’s alternative motion for a remand [Doc. 67] is GRANTED IN PART, in that
the applications of Plaintiffs Manker and Doe for discharge upgrades are remanded to the Naval
Discharge Review Board (“NDRB”) for further administrative consideration.
Otherwise,
Defendant’s motion for a remand is DENIED.
3. The NDRB must issue its decisions following the consideration on remand not later than
March 7, 2020. Counsel for Defendant had suggested 180 days, or six months, within which to
arrive at such decisions. That is unreasonably long. When the decisions on remand are issued,
counsel for the Parties are directed to file them with the Court forthwith.
4.
Proceedings with respect to the claims of Manker and Doe are STAYED pending
decisions on the remands directed in paragraph two of this Order. No other proceedings are stayed.
5.
Discovery in this case is not limited to the administrative records generated by the
applications of Manker and Doe. Discovery will be supervised by Magistrate Judge Spector pursuant
to a separate Order of Reference.
It is SO ORDERED.
Dated: New Haven, Connecticut
November 7, 2019
/s/ Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge
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