EFILE,REFDIS,RMS
U.S. District Court District of Connecticut (New Haven) CIVIL DOCKET FOR CASE #: 3:16-cv-02010-CSH

Kennedy v. Fanning Assigned to: Judge Charles S. Haight, Jr Referred to: Judge Robert M. Spector
Judge William I. Garfinkel (Settlement) Cause: 05:702 Administrative Procedure Act

Date Filed: 12/08/2016 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff
Stephen M. Kennedy on behalf of themselves and all others similarly situated

represented by Dana Montalto Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520 203-432-4800 Fax: 203-432-1426 Email: dana.montalto@ylsclinics.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Wishnie Jerome N. Frank Legal Services Wall St Yale Law School 127 Wall Street New Haven, CT 06511 203-432-4800 Fax: 203-432-1426 Email: michael.wishnie@ylsclinics.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron Paul Wenzloff Community Activism Law Alliance 17 N. State Street

13th Floor Ste 1380 Chicago, IL 60602 312-999-0056 Fax: 312-999-0076 Email: aaron@calachicago.org TERMINATED: 07/18/2018 ATTORNEY TO BE NOTICED
Jacob Tracer Jenner & Block LLP 919 Third Avenue 39th Floor New York, NY 10022 212-407-1765 Fax: 312-515-3588 Email: jtracer@jenner.com ATTORNEY TO BE NOTICED
Jeremy M. Creelan Jenner & Block, LLP - NY 919 Third Avenue, 37th Floor New York, NY 10022 212-891-1678 Fax: 212-909-0858 Email: jcreelan@jenner.com ATTORNEY TO BE NOTICED
Ravi Ramanathan Jenner & Block LLP 919 3rd Avenue New York, NY 10022 212-407-1764 Email: rramanathan@jenner.com ATTORNEY TO BE NOTICED
Renee A. Burbank Yale Law School P.O. Box 209090 New Haven, CT 20530 203-432-3928 Email: renee.burbank@ylsclinics.org ATTORNEY TO BE NOTICED
Sean D. Nelson

Plaintiff
Alicia J. Carson on behalf of themselves and all others similarly situated

Jenner & Block LLP 353 N. Clark Street Chicago, IL 60654-3456 213-239-2247 Fax: 213-590-2638 Email: snelson@jenner.com TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Susan J. Kohlmann Jenner & Block LLP 919 Third Avenue Ste 38th Floor New York, NY 10022 212-891-1690 Fax: 212-909-0821 Email: skohlmann@jenner.com ATTORNEY TO BE NOTICED
William S.C. Goldstein Jenner & Block LLP 919 Third Avenue 39th Floor New York, NY 10022 212-891-1656 Fax: 212-891-1699 Email: wgoldstein@jenner.com TERMINATED: 07/15/2020 ATTORNEY TO BE NOTICED
represented by Dana Montalto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Wishnie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Paul Wenzloff (See above for address) TERMINATED: 07/18/2018 ATTORNEY TO BE NOTICED

V.
Defendant
Eric Fanning Secretary of the Army TERMINATED: 04/17/2017

Jacob Tracer (See above for address) ATTORNEY TO BE NOTICED
Jeremy M. Creelan (See above for address) ATTORNEY TO BE NOTICED
Ravi Ramanathan (See above for address) ATTORNEY TO BE NOTICED
Renee A. Burbank (See above for address) ATTORNEY TO BE NOTICED
Sean D. Nelson (See above for address) TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Susan J. Kohlmann (See above for address) ATTORNEY TO BE NOTICED
William S.C. Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle Lynn McConaghy U.S. Attorney's Office-NH 157 Church St., 25th Floor New Haven, CT 06510 203-821-3700 Fax: 203-773-5373 Email: michelle.mcconaghy@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Christopher Nelson U.S. Attorney's Office-NH

Defendant Robert Speer Acting Secretary of the Army
Defendant Ryan McCarthy Secretary of the Army

157 Church St., 25th Floor New Haven, CT 06510 203-821-3700 Fax: 203-773-5373 Email: David.C.Nelson@usdoj.gov ATTORNEY TO BE NOTICED
represented by Michelle Lynn McConaghy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Christopher Nelson (See above for address) ATTORNEY TO BE NOTICED
represented by Natalie Nicole Elicker DOJ-USAO 157 Church Street Ste 25th Floor New Haven, CT 06510 203-821-3700 Fax: 203-773-5373 Email: natalie.elicker@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/08/2016
12/08/2016 12/08/2016

# Docket Text
1 COMPLAINT against Eric Fanning ( Filing fee $400 receipt number 0205-4223895.), filed by Stephen M Kennedy. (Attachments: # 1
Exhibit, # 2 Exhibit)(Wishnie, Michael) (Entered: 12/08/2016)
Judge Warren W. Eginton added. (Walker, A) (Entered: 12/09/2016)
2 ELECTRONIC FILING ORDER - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Warren W. Eginton on 12/8/2016.(Fazekas, J.) (Entered: 12/09/2016)

12/09/2016 12/16/2016 12/19/2016 02/21/2017

3 NOTICE TO COUNSEL/PRO SE PARTIES : Counsel or pro se parties initiating or removing this action are responsible for serving all parties with attached documents and copies of 2 Electronic Filing Order, 1 Complaint filed by Stephen M. Kennedy Signed by Clerk on 12/9/2016.(Fazekas, J.) (Entered: 12/09/2016)
Request for Clerk to issue summons as to Eric Fanning. (Wishnie, Michael) (Entered: 12/16/2016)
4 ELECTRONIC SUMMONS ISSUED in accordance with Fed. R. Civ. P. 4 and LR 4 as to *Eric Fanning* with answer to complaint due within *60* days. Attorney *Michael J. Wishnie* *Jerome N. Frank Legal Services - Wall St* *Yale Law School, 127 Wall Street* *New Haven, CT 06511*. (Fazekas, J.) (Entered: 12/19/2016)
5 NOTICE of Appearance by David Christopher Nelson on behalf of Eric Fanning (Nelson, David) (Entered: 02/21/2017)

02/21/2017 02/22/2017 02/22/2017 03/24/2017

6 MOTION for Extension of Time until March 27, 2017 to file a responsive pleading by Eric Fanning. (Nelson, David) (Entered: 02/21/2017)
7 ORDER granting 6 Motion for Extension of Time until March 27, 2017 to file a responsive pleading. Signed by Judge Warren W. Eginton on 2/22/2017. (LaMura, K.) (Entered: 02/22/2017)
Answer deadline updated for Eric Fanning to 3/27/2017. (LaMura, K.) (Entered: 02/22/2017)
8 SUMMONS Returned Executed by Stephen M. Kennedy. All Defendants. (Wishnie, Michael) (Entered: 03/24/2017)

03/27/2017 03/27/2017 04/17/2017

9 NOTICE of Appearance by Aaron Paul Wenzloff on behalf of Stephen M. Kennedy (Wenzloff, Aaron) (Entered: 03/27/2017)
10 MOTION to Dismiss by Eric Fanning.Responses due by 4/17/2017 (Attachments: # 1 Memorandum in Support)(Nelson, David) (Entered: 03/27/2017)
11 AMENDED COMPLAINT against Robert Speer, filed by Stephen M. Kennedy. (Attachments: # 1 Exhibit Hagel Memo, # 2 Exhibit Kennedy 2015 ADRB Decision, # 3 Exhibit Carson 2015 ADRB Decision)(Wishnie, Michael) (Entered: 04/17/2017)

04/21/2017 04/24/2017 04/24/2017 04/25/2017
06/27/2017
06/30/2017
07/11/2017 07/13/2017 07/13/2017 07/14/2017 07/18/2017 07/18/2017

12 MOTION for Extension of Time until June 30, 2017 to file a responsive pleading 11 Amended Complaint by Robert Speer. (Nelson, David) (Entered: 04/21/2017)
13 ORDER granting 12 Motion for Extension of Time. Signed by Judge Warren W. Eginton on 4/24/2017. (LaMura, K.) (Entered: 04/24/2017)
Answer deadline updated for Robert Speer to 6/30/2017. (Fazekas, J.) (Entered: 04/24/2017)
14 ORDER denying without prejudice 10 Motion to Dismiss. Defendant shall file a motion to dismiss or other responsive pleading to the amended complaint by June 30, 2017. Signed by Judge Warren W. Eginton on 4/25/2017. (LaMura, K.) (Entered: 04/25/2017)
15 MOTION to Certify Class by Alicia J. Carson, Stephen M. Kennedy.Responses due by 7/18/2017 (Attachments: # 1 Memorandum in Support, # 2 Affidavit, # 3 Affidavit)(Wishnie, Michael) (Entered: 06/27/2017)
16 MOTION to Dismiss by Robert Speer.Responses due by 7/21/2017 (Attachments: # 1 Memorandum in Support)(Nelson, David). Added MOTION to Remand to Agency on 9/19/2017 (Gould, K.). (Entered: 06/30/2017)
17 MOTION for Extension of Time until August 17, 2017 to respond to the plaintiffs' motion 15 MOTION to Certify Class by Robert Speer. (Nelson, David) (Entered: 07/11/2017)
18 ORDER granting 17 Motion for Extension of Time. Signed by Judge Warren W. Eginton on 7/13/2017. (LaMura, K.) (Entered: 07/13/2017)
19 Reset Deadline as to 15 MOTION to Certify Class . Responses due by 8/17/2017 (LaMura, K.) (Entered: 07/13/2017)
20 Consent MOTION for Extension of Time to File Response/Reply as to 16 MOTION to Dismiss until 08/04/17 by Alicia J. Carson, Stephen M. Kennedy. (Wishnie, Michael) (Entered: 07/14/2017)
21 ORDER granting 20 Motion for Extension of Time to File Response/Reply re 16 MOTION to Dismiss Responses due by 8/4/2017 (LaMura, K.) (Entered: 07/18/2017)
22 Set Deadlines as to 16 MOTION to Dismiss . Responses due by 8/4/2017 (Gould, K.) (Entered: 07/19/2017)

08/04/2017 08/11/2017 08/14/2017 08/14/2017 08/17/2017 08/31/2017 09/01/2017 09/19/2017

23 Memorandum in Opposition re 16 MOTION to Dismiss filed by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Exhibit 1)(Wishnie, Michael) (Entered: 08/04/2017)
24 MOTION for Extension of Time until September 1, 2017 to file a reply brief 23 Memorandum in Opposition to Motion by Robert Speer. (Nelson, David) (Entered: 08/11/2017)
25 ORDER granting 24 Motion for Extension of Time. Signed by Judge Warren W. Eginton on 8/14/2017. (LaMura, K.) (Entered: 08/14/2017)
Reset Deadline as to 16 MOTION to Dismiss . Responses due by 9/1/2017 (LaMura, K.) (Entered: 08/14/2017)
26 Memorandum in Opposition re 15 MOTION to Certify Class filed by Robert Speer. (Nelson, David) (Entered: 08/17/2017)
27 REPLY to Response to 15 MOTION to Certify Class filed by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Exhibit Exhibit 1)(Wishnie, Michael) (Entered: 08/31/2017)
28 REPLY to Response to 16 MOTION to Dismiss filed by Robert Speer. (Nelson, David) (Entered: 09/01/2017)
29 ORDER denying without prejudice 16 Motion to Dismiss; granting 16 Motion to Remand to Agency. Signed by Judge Warren W. Eginton on 9/19/2017. (Gould, K.) (Entered: 09/19/2017)

09/25/2017 09/25/2017 10/23/2017 10/31/2017 01/31/2018 02/01/2018

Set Deadline: Status Report due by 12/19/2017 (LaMura, K.) (Entered: 09/25/2017)
ReSet Deadline: Status Report due by 1/31/2018 (LaMura, K.) (Entered: 09/26/2017)
30 STATUS REPORT as to Plaintiff Alicia Carson by Robert Speer. (Attachments: # 1 Discharge Upgrade Paperwork)(Nelson, David) (Entered: 10/23/2017)
31 ORDER denying without prejudice pending reconsideration of the applications 15 Motion to Certify Class. Signed by Judge Warren W. Eginton on 10/31/2017. (Gould, K.) (Entered: 10/31/2017)
32 STATUS REPORT by Alicia J. Carson, Stephen M. Kennedy. (Wishnie, Michael) (Entered: 01/31/2018)
33 SCHEDULING ORDER: The parties are instructed to file a joint status report on or before May 4, 2018.

02/19/2018 02/20/2018 02/20/2018 02/21/2018 02/22/2018
02/27/2018 02/27/2018 02/28/2018

Signed by Judge Warren W. Eginton on 2/1/18.(Gould, K.) (Entered: 02/01/2018)
34 MOTION for Status Conference by Alicia J. Carson, Stephen M. Kennedy. (Wishnie, Michael) (Entered: 02/19/2018)
35 ORDER granting 34 Motion for Conference. Signed by Judge Warren W. Eginton on 2/20/2018. (Gould, K.) (Entered: 02/20/2018)
36 ORDER REFERRING CASE to Magistrate Judge William I. Garfinkel for Settlement Conference. Signed by Judge Warren W. Eginton on 2/20/2018.(Gould, K.) (Entered: 02/20/2018)
37 ORDER VACATING 36 Order Referring Case to Magistrate Judge. Per the parties request, a status conference will be scheduled. Signed by Judge Warren W. Eginton on 2/21/18.(Gould, K.) (Entered: 02/21/2018)
38 SCHEDULING ORDER:Telephonic Status Conference set for 2/28/2018 02:00 PM before Judge Warren W. Eginton. The parties are instructed to arrange for a conference call with all counsel on the line prior to calling into chambers at 203-579-5819. Signed by Judge Warren W. Eginton on 2/22/2018.(LaMura, K.) (Entered: 02/22/2018)
39 MOTION for Leave to Appear Law Student Intern Helen White by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Law Student Intern Appearance)(Wishnie, Michael) (Entered: 02/27/2018)
40 MOTION for Leave to Appear Law Student Intern Jordan R. Goldberg by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Law Student Intern Appearance)(Wishnie, Michael) (Entered: 02/27/2018)
41 SCHEDULING ORDER: In light of the Government's representations that review of Mr. Kennedy's discharge upgrade application should be completed by the end of March, the Court will hold a telephonic status conference on April 6, 2018 at 2 pm. The parties should arrange for a conference call, All counsel should be on the line prior to calling chambers at 203-579-5819 Telephonic Status Conference set for 4/6/2018 02:00 PM before Judge Warren W. Eginton Signed by Judge Warren W. Eginton on 2/28/2018.(Gould, K.) (Entered: 02/28/2018)

02/28/2018 03/01/2018 03/29/2018
03/29/2018 04/02/2018 04/03/2018 04/03/2018
04/09/2018 06/04/2018 06/04/2018

43 Minute Entry for proceedings held before Judge Warren W. Eginton: Telephonic Status Conference held on 2/28/2018. Total Time: 15 minutes (Gould, K.) (Entered: 03/05/2018)
42 ORDER granting 39 Motion to Appear ; granting 40 Motion to Appear. Signed by Judge Warren W. Eginton on 3/1/18. (Gould, K.) (Entered: 03/01/2018)
44 AMENDED SCHEDULING ORDER: ** Please note new date**Telephonic Status Conference set for 4/3/2018 02:00 PM before Judge Warren W. Eginton Signed by Judge Warren W. Eginton on 3/29/2018.(LaMura, K.) (Entered: 03/29/2018)
45 MOTION for Leave to Appear Law Student Intern Catherine E. McCarthy by Alicia J. Carson, Stephen M. Kennedy. (Wishnie, Michael) (Entered: 03/29/2018)
46 ORDER granting 45 Motion to Appear Law Student Intern. Signed by Judge Warren W. Eginton on 4/2/2018. (LaMura, K.) (Entered: 04/02/2018)
47 Joint MOTION for Scheduling Order by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Exhibit 1)(Wishnie, Michael) (Entered: 04/03/2018)
48 ORDER granting 47 Motion for Order. Plaintiffs' motion for class certification is due on June 4, 2018; defendant's motion to dismiss is due on June 4, 2018. The parties have thirty days to file any responses. Signed by Judge Warren W. Eginton on 4/3/2018. (Welles, T.) (Entered: 04/03/2018)
49 Minute Entry for proceedings held before Judge Warren W. Eginton: Telephonic Status Conference held on 4/9/2018. Total time 15 minutes (LaMura, K.) (Entered: 04/09/2018)
50 MOTION to Dismiss by Robert Speer.Responses due by 6/25/2018 (Attachments: # 1 Memorandum in Support)(Nelson, David) (Entered: 06/04/2018)
51 Second MOTION to Certify Class by Alicia J. Carson, Stephen M. Kennedy.Responses due by 6/25/2018 (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Michael J. Wishnie, # 3 Exhibit A to Wishnie Declaration, # 4 Exhibit B to Wishnie Declaration, # 5 Exhibit C to Wishnie Declaration, # 6 Affidavit of Susan J. Kohlmann, # 7 Affidavit of Stephen M. Kennedy)(Wishnie, Michael) (Entered: 06/04/2018)

07/03/2018 07/05/2018 07/17/2018 07/18/2018 08/02/2018 08/02/2018 08/02/2018 08/02/2018 08/02/2018

52 RESPONSE re 51 Second MOTION to Certify Class filed by Robert Speer. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Nelson, David) (Entered: 07/03/2018)
53 Memorandum in Opposition re 50 MOTION to Dismiss filed by Alicia J. Carson, Stephen M. Kennedy. (Wishnie, Michael) (Entered: 07/05/2018)
54 MOTION for Aaron Wenzloff to Withdraw as Attorney by Alicia J. Carson, Stephen M. Kennedy. (Wenzloff, Aaron) (Entered: 07/17/2018)
55 ORDER granting 54 Motion to Withdraw as Attorney. Attorney Aaron Paul Wenzloff terminated. Signed by Judge Warren W. Eginton on 7/18/2018. (LaMura, K.) (Entered: 07/18/2018)
56 MOTION for Attorney(s) Jeremy M. Creelan to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC-4922229) by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Affidavit Affidavit and Certificate of Good Standing)(Wishnie, Michael) (Entered: 08/02/2018)
57 MOTION for Attorney(s) Susan J. Kohlmann to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC-4922256) by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Affidavit Affidavit and Certificate of Good Standing)(Wishnie, Michael) (Entered: 08/02/2018)
58 MOTION for Attorney(s) Sean D. Nelson to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC-4922266) by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Affidavit Affidavit and Certificate of Good Standing)(Wishnie, Michael) (Entered: 08/02/2018)
59 MOTION for Attorney(s) Jacob L. Tracer to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC-4922271) by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Affidavit Affidavit and Certificate of Good Standing)(Wishnie, Michael) (Entered: 08/02/2018)
60 REPLY to Response to 51 Second MOTION to Certify Class filed by Alicia J. Carson, Stephen M. Kennedy. (Wishnie, Michael) (Entered: 08/02/2018)

08/03/2018 08/03/2018

61 ORDER granting 56 Motion to Appear Pro Hac Vice as to Jeremy M. Creelan. Signed by Clerk on 8/3/2018. (Fazekas, J.) (Entered: 08/03/2018)
62 ORDER granting 57 Motion to Appear Pro Hac Vice as to Susan J. Kohlmann. Signed by Clerk on 8/3/2018. (Fazekas, J.) (Entered: 08/03/2018)

08/03/2018 08/03/2018 08/03/2018

63 ORDER granting 58 Motion to Appear Pro Hac Vice as to Sean D. Nelson. Signed by Clerk on 8/3/2018. (Fazekas, J.) (Entered: 08/03/2018)
64 ORDER granting 59 Motion to Appear Pro Hac Vice as to Jacob L. Tracer. Signed by Clerk on 8/3/2018. (Fazekas, J.) (Entered: 08/03/2018)
65 REPLY to Response to 50 MOTION to Dismiss filed by Robert Speer. (Nelson, David) (Entered: 08/03/2018)

08/06/2018

66 NOTICE of Appearance by Susan J. Kohlmann on behalf of Alicia J. Carson, Stephen M. Kennedy (Kohlmann, Susan) (Entered: 08/06/2018)

08/08/2018 10/01/2018 10/01/2018 10/02/2018 11/16/2018
11/19/2018
11/28/2018

67 NOTICE of Appearance by Jeremy M. Creelan on behalf of Alicia J. Carson, Stephen M. Kennedy (Creelan, Jeremy) (Entered: 08/08/2018)
68 MOTION for Sean D. Nelson to Withdraw as Attorney for Plaintiffs by Alicia J. Carson, Stephen M. Kennedy. (Nelson, Sean) (Entered: 10/01/2018)
69 NOTICE of Appearance by Jacob Tracer on behalf of Alicia J. Carson, Stephen M. Kennedy (Tracer, Jacob) (Entered: 10/01/2018)
70 ORDER granting 68 Motion to Withdraw as Attorney. Attorney Sean D. Nelson terminated. Signed by Judge Warren W. Eginton on 10/02/18. (Gould, K.) (Entered: 10/02/2018)
71 NOTICE by Alicia J. Carson, Stephen M. Kennedy of Supplemental
Authority (Attachments: # 1 Exhibit Manker Opinion & Order on Class Certification)(Wishnie, Michael) (Entered: 11/16/2018)
72 ORDER - The Court affords defendant until December 7, 2018, to file a response to plaintiff's notice of recent authority. Signed by Judge Warren W. Eginton on 11/19/2018.(Gould, K.) (Entered: 11/19/2018)
73 RESPONSE re 71 Notice (Other), 72 Order filed by Robert Speer. (Nelson, David) (Entered: 11/28/2018)

12/21/2018

74 MEMORANDUM OF DECISION granting 51 Motion to Certify Class. Signed by Judge Warren W. Eginton on 12/21/18. (Imbriani, Susan) (Entered: 12/21/2018)

01/09/2019

75 Ruling denying 50 Motion to Dismiss. Signed by Judge Warren W. Eginton on 12/21/2018. (LaMura, K.) (Entered: 01/09/2019)

03/06/2019 03/06/2019

76 REPORT of Rule 26(f) Planning Meeting. (Attachments: # 1
Exhibit Plaintiffs' Proposed Document Production Protocol)(Wishnie, Michael) (Entered: 03/06/2019)
77 MOTION Status Conference with the Court regarding the Plaintiffs' proposed discovery plan by Robert Speer.Responses due by 3/27/2019 (Nelson, David) (Entered: 03/06/2019)

04/04/2019

78 MOTION For the Court to Set an Answer Date by Robert Speer.Responses due by 4/25/2019 (Nelson, David) (Entered: 04/04/2019)

04/05/2019
04/05/2019 04/05/2019

79 ORDER granting 78 Motion to set Answer deadline. Answer deadline set for 4/26/19. Signed by Judge Warren W. Eginton on 4/5/19. (Imbriani, Susan) (Entered: 04/05/2019)
Answer deadline updated for Robert Speer to 4/26/2019. (Imbriani, Susan) (Entered: 04/05/2019)
80 ORDER finding as moot 77 Motion for a status conference. The Court concurs with the ruling in Manker v. Spencer, 18cv372 dated April 5, 2019. The Court sets the following schedule: Defendant is directed to produce to counsel for Plaintiffs, on or before June 3, 2019, the full administrative records relevant to the claims of the lead plaintiffs in this action in addition to any relevant policy memoranda, regulations and other documents, to the extent that these documents might provide background information. The Court will consider whether discovery is necessary thereafter. Signed by Judge Warren W. Eginton on 4/5/19. (Imbriani, Susan) (Entered: 04/05/2019)

04/22/2019

81 ANSWER to 11 Amended Complaint with Affirmative Defenses. by Robert Speer.(Nelson, David) (Entered: 04/22/2019)

05/31/2019

82 NOTICE by Robert Speer - Filing of the Administrative Record (Attachments: # 1 Volume 3)(Nelson, David) (Entered: 05/31/2019)

05/31/2019 05/31/2019
05/31/2019 06/06/2019 06/06/2019 06/06/2019 06/11/2019
06/11/2019 06/12/2019

83 MOTION to Seal - Portions of the Administrative Record by Robert Speer. (Nelson, David) (Entered: 05/31/2019)
84 Sealed Document: Volume 1 - Part 1 by Robert Speer re 83 MOTION to Seal - Portions of the Administrative Record . (Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 4, # 4 Part 5, # 5 Part 6, # 6 Part 7, # 7 Part 8, # 8 Part 9, # 9 Part 10, # 10 Part 11, # 11 Part 12)(Nelson, David) (Entered: 05/31/2019)
85 Sealed Document: Volume 2 - Part 1 by Robert Speer re 83 MOTION to Seal - Portions of the Administrative Record . (Attachments: # 1 Part 2)(Nelson, David) (Entered: 05/31/2019)
86 MOTION for Leave to Appear Law Student Intern Andrew DeGuglielmo by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Law Student Intern Appearance)(Wishnie, Michael) (Entered: 06/06/2019)
87 MOTION for Leave to Appear Law Student Intern Samuel Frizell by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Law Student Intern Appearance)(Wishnie, Michael) (Entered: 06/06/2019)
88 MOTION for Leave to Appear Law Student Intern Samuel Davis by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Law Student Intern Appearance)(Wishnie, Michael) (Entered: 06/06/2019)
89 ORDER granting 86 Motion to Appear Law Student Intern; granting 87 Motion to Appear Law Student Intern; granting 88 Motion to Appear Law Student Intern. Signed by Judge Warren W. Eginton on 6/11/19. (Imbriani, Susan) (Entered: 06/11/2019)
90 ORDER granting 83 Motion to Seal. Signed by Judge Warren W. Eginton on 6/11/19. (Imbriani, Susan) (Entered: 06/11/2019)
91 MOTION for Attorney(s) Ravi Ramanathan to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC-5316893) by Alicia J.

06/12/2019 06/13/2019 06/13/2019 06/13/2019 06/13/2019 06/18/2019
08/28/2019
08/30/2019

Carson, Stephen M. Kennedy. (Attachments: # 1 Affidavit of Ravi Ramanathan)(Wishnie, Michael) (Entered: 06/12/2019)
92 MOTION for Attorney(s) William S.C. Goldstein to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC-5316915) by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Affidavit of William S.C. Goldstein)(Wishnie, Michael) (Entered: 06/12/2019)
93 ORDER granting 91 Motion to Appear Pro Hac Vice for Ravi Ramanathan. Signed by Clerk on 6/13/19. (Imbriani, Susan) (Entered: 06/13/2019)
94 ORDER granting 92 Motion to Appear Pro Hac Vice for William S.C. Goldstein. Signed by Clerk on 6/13/19. (Imbriani, Susan) (Entered: 06/13/2019)
95 NOTICE of Appearance by William S.C. Goldstein on behalf of Alicia J. Carson, Stephen M. Kennedy (Goldstein, William) (Entered: 06/13/2019)
96 NOTICE of Appearance by Ravi Ramanathan on behalf of Alicia J. Carson, Stephen M. Kennedy (Ramanathan, Ravi) (Entered: 06/13/2019)
97 RESPONSE re 80 Order on Motion for Miscellaneous Relief,, /RESPONSE re 84 Sealed Document, 85 Sealed Document, 82
Notice (Other) /Response providing the Court with a status update following Defendant's production of the administrative record and supplemental materials, and to request that the Court authorize additional discovery and to direct parties to confer on a proposed discovery schedule filed by Alicia J. Carson, Stephen M. Kennedy filed by Alicia J. Carson, Stephen M. Kennedy. (Kohlmann, Susan) (Entered: 06/18/2019)
98 NOTICE by Robert Speer of filing of the redacted administrative record (Attachments: # 1 Volume 1, part 1, # 2 Volume 1, part 2, # 3 Volume 1, part 3, # 4 Volume 1, part 4, # 5 Volume 1, part 5, # 6 Volume 1, part 6, # 7 Volume 1, part 7, # 8 Volume 1, part 8, # 9 Volume 1, part 9, # 10 Volume 2, part 1, # 11 Volume 2, part 2, # 12 Volume 2, part 3, # 13 Volume 2, part 4, # 14 Volume 2, part 5, # 15 Volume 2, part 6, # 16 Volume 2, part 7, # 17 Volume 2, part 8)(Nelson, David) (Entered: 08/28/2019)
99 RESPONSE re 97 Response,, Letter Regarding Administrative Record and Discovery filed by Robert Speer. (Nelson, David) (Entered: 08/30/2019)

09/06/2019

100 RESPONSE Reply to Defendant's Letter Regarding Administrative Record filed by Alicia J. Carson, Stephen M. Kennedy. (Wishnie, Michael) (Entered: 09/06/2019)

09/06/2019

101 DISCOVERY ORDER; ORDER REFERRING CASE to Magistrate Judge Robert M. Spector for discovery. Signed by Judge Warren W. Eginton on 9/6/19.(Imbriani, Susan) (Entered: 09/09/2019)

09/13/2019

102 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A Telephonic Status Conference is set for 10/3/2019 at 11:00 AM before Judge Robert M. Spector. Counsel shall use the following conference call in number: (877) 873-8017; access code: 7040261. (Mallon, Kathleen) (Entered: 09/13/2019)

09/25/2019

103 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. RESET FROM 10/3/2019 at 11:00 a.m. Upon the joint request of the parties, the Telephonic Status Conference scheduled for 10/3/2019 at 11:00 a.m. is adjourned to 10/7/2019 at 3:00 PM before Judge Robert M. Spector. Counsel shall use the following conference call in number: (877) 873-8017; access code: 7040261. (Mallon, Kathleen) (Entered: 09/25/2019)

09/27/2019

104 REPORT of Rule 26(f) Planning Meeting. (Attachments: # 1 Exhibit A Protective Order, # 2 Exhibit B - Proposed Document Production Protocol)(Wishnie, Michael) (Entered: 09/27/2019)

09/27/2019 105 RESPONSE re 104

Report of Rule 26(f) Planning Meeting, 101

Order Referring Case to Magistrate Judge filed by Robert Speer. (Nelson, David) (Entered: 09/27/2019)

10/04/2019

106 RESPONSE re 105 Response to Government Regarding the Court's Discovery Order filed by Alicia J. Carson, Stephen M. Kennedy. (Wishnie, Michael) (Entered: 10/04/2019)

10/07/2019 107 NOTICE of Appearance by Michelle Lynn McConaghy on behalf of Eric Fanning, Robert Speer (McConaghy, Michelle) (Entered: 10/07/2019)

10/07/2019

108 Minute Entry for proceedings held before Judge Robert M. Spector: Status Conference held on 10/7/2019. 20 minutes (Mallon, Kathleen) (Entered: 10/07/2019)

10/07/2019

109 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A telephonic status conference is set for 10/17/2019 at 3:30 PM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873-8017; access code: 7040261. (Mallon, Kathleen) (Entered: 10/07/2019)

10/09/2019

110 ORDER OF TRANSFER. Case reassigned to Judge Vanessa L. Bryant for all further proceedings. Signed by Clerk on 10/9/2019.(Hushin, Z.) (Entered: 10/09/2019)

10/09/2019

111 ELECTRONIC FILING ORDER FOR COUNSEL - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER. Signed by Judge Vanessa L. Bryant on 10/9/2019. (Shafer, J.) (Entered: 10/09/2019)

10/09/2019

112 ORDER RE: Judge's Chambers Practices. Counsel are directed to read and comply with the Chambers Practices and Standing Orders prior to filing any document. So ordered. Signed by Judge Vanessa L. Bryant on 10/9/2019. (Shafer, J.) (Entered: 10/09/2019)

10/16/2019

113 MOTION for Leave to Appear Law Student Intern Julia M. Coppelman by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Law Student Intern Appearance)Motions referred to Robert M. Spector(Wishnie, Michael) (Entered: 10/16/2019)

10/17/2019

114 ORDER granting 113 Motion for Law Student Intern Julia M. Coppelman to appear in this matter on behalf of the Plaintiffs, under the supervision of Michael J. Wishnie and Renee A. Burbank, pursuant to Local Rule of Civil Procedure 83.9. Signed by Judge Vanessa L. Bryant on 10/17/2019.(Diamond, Matthew) (Entered: 10/17/2019)

10/17/2019

115 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic status conference was held on 10/17/2019. 20 minutes (Mallon, Kathleen) (Entered: 10/17/2019)

10/17/2019

116 ORDER: The parties shall meet and confer and file a Joint Status Report by October 28, 2019, which will supersede the plaintiff's proposed discovery plan (Doc. No. 104) and the defendant's response to the plaintiff's proposed discovery plan. (Doc. No. 105). The Joint Status

Report shall 1) update the Court on the status of discovery, indicating the categories of discovery on which the parties agree and informing the Court as to the status of their production; 2) outline the categories of discovery on which the parties continue to disagree, if any; and 3) provide a proposed schedule. Signed by Judge Robert M. Spector on 10/17/2019. (Mallon, Kathleen) (Entered: 10/17/2019)

10/28/2019 117 Joint RESPONSE re 104

Report of Rule 26(f) Planning

Meeting, 105 Response, 116 Order,, filed by Robert Speer. (Nelson, David) (Entered: 10/28/2019)

10/30/2019

118 ORDER: The Court adopts and orders the parties proposed discovery deadlines for the six agreed-upon categories of discovery included in their October 28, 2019 Joint Status Report. (Doc. No. 117). The parties are directed to contact the Court regarding the scheduling of a settlement conference in January 2020, which is something they reference in their Joint Status Report. Discovery will close on February 28, 2020. Signed by Judge Robert M. Spector on 10/30/2019. (Mallon, Kathleen) (Entered: 10/30/2019)

10/30/2019

Set deadline: Discovery due by 2/28/2020 per Dkt. 118 Order. (Shafer, J.) (Entered: 10/31/2019)

10/31/2019

119 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A Settlement Conference is set for 1/23/2020 at 10:00 AM in Chambers Room 303, 141 Church St., New Haven, CT before Judge Robert M. Spector. (Mallon, Kathleen) (Entered: 10/31/2019)

10/31/2019

120 ORDER: A settlement conference is scheduled on January 23, 2020. Please see the attached Settlement Conference Order for detailed instructions and deadlines. Signed by Judge Robert M. Spector on 10/31/2019. (Mallon, Kathleen) (Entered: 10/31/2019)

10/31/2019

Set Deadlines: Discovery due by 2/28/2020 (Campbell, A) (Entered: 10/31/2019)

11/12/2019

121 ORDER OF TRANSFER. Case reassigned to Judge Charles S. Haight, Jr. for all further proceedings. Signed by Judge Vanessa L. Bryant on 11/12/2019. (Shafer, J.) (Entered: 11/12/2019)

12/05/2019

122 Joint MOTION for Protective Order regarding discovery production with proposed order attached by Robert Speer.Responses due by 12/26/2019 Motions referred to Robert M. Spector(Nelson, David) (Entered: 12/05/2019)

12/10/2019

123 RESPONSE re 120 Order by Alicia J. Carson, Stephen M. Kennedy / Letter regarding the Settlement Conference and Discovery Deadlines. (Kohlmann, Susan) (Entered: 12/10/2019)

12/11/2019

124 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. RESET FROM 1/23/20 at 10:00 a.m. Upon the request of the parties, the Settlement Conference previously set for 1/23/20 at 10:00 a.m. is adjourned to 2/19/2020 at 10:00 AM in Chambers Room 303, 141 Church St., New Haven, CT before Judge Robert M. Spector. (Mallon, Kathleen) (Entered: 12/11/2019)

12/11/2019

125 ORDER: A Settlement Conference is scheduled for February 19, 2020. Please see the attached Settlement Conference Order for detailed instructions and deadlines. Signed by Judge Robert M. Spector on 12/11/2019. (Mallon, Kathleen) (Entered: 12/11/2019)

12/11/2019

126 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A telephonic status conference is set for 12/19/2019 at 1:30 PM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873-8017; access code: 7040261. (Mallon, Kathleen) (Entered: 12/11/2019)

12/12/2019

127 PROTECTIVE ORDER: The parties' Proposed Protective Order (Doc. No. 122) is granted in part. Please see the attached Protective Order. Signed by Judge Robert M. Spector on 12/12/2019. (Mallon, Kathleen) (Entered: 12/12/2019)

12/19/2019

128 NOTICE of Appearance by Natalie Nicole Elicker on behalf of Ryan McCarthy and Substitution of Party (Elicker, Natalie) (Entered: 12/19/2019)

12/19/2019

129 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic status conference was held on 12/19/2019. 15 minutes (Mallon, Kathleen) (Entered: 12/19/2019)

12/19/2019

130 MEMORANDUM OF CONFERENCE AND ORDER: At today's telephonic conference, and in the parties' December 10, 2019 letter (Doc. No. 123), the parties requested that the current discovery deadline of February 28, 2020 be extended to July 31, 2020, to match the discovery deadline in the related matter Manker v. Spencer, 18-CV-372 (CSH). The parties' application is GRANTED. Discovery will close on July 31, 2020. Signed by Judge Robert M. Spector on 12/19/2019.(Mallon, Kathleen) (Entered: 12/19/2019)

12/27/2019

Set Deadline: Discovery due by 7/31/2020 (Campbell, A) (Entered: 12/27/2019)

01/07/2020

131 MEMORANDUM AND ORDER OF REFERRAL (see attached). This case is hereby respectfully referred to United States Magistrate Judge Spector for the purpose of considering settlement by the Parties. Signed by Judge Charles S. Haight, Jr. on January 7, 2020. (Gitlin, A.) (Entered: 01/07/2020)

01/22/2020 132 NOTICE of Appearance by Renee A. Burbank on behalf of Alicia J. Carson, Stephen M. Kennedy (Burbank, Renee) (Entered: 01/22/2020)

01/29/2020 133 RESPONSE filed by Alicia J. Carson, Stephen M. Kennedy. (Wishnie, Michael) (Entered: 01/29/2020)

01/30/2020

134 RESPONSE Letter to Magistrate Judge Robert M. Spector Regarding Discovery filed by Alicia J. Carson, Stephen M. Kennedy. (Wishnie, Michael) (Entered: 01/30/2020)

01/30/2020

135 ORDER: The Court is in receipt of the plaintiffs' letter motion. (Doc. No. 133). The plaintiffs' application is GRANTED. The plaintiffs shall serve their settlement demand on defendant by February 7, 2020. Signed by Judge Robert M. Spector on 1/30/2020. (Mallon, Kathleen) (Entered: 01/30/2020)

01/31/2020

136 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A telephonic discovery conference is set for 2/3/2020 at 11:00 AM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873-8017; access code: 7040261. (Mallon, Kathleen) (Entered: 01/31/2020)

01/31/2020

137 NOTICE: The defendant's response to the plaintiffs' letter (Doc. No. 134), if any, shall be filed before the telephonic discovery conference on February 3, 2020. (See Doc. No. 136).

Signed by Judge Robert M. Spector on 1/31/2020. (Mallon, Kathleen) (Entered: 01/31/2020)

02/02/2020 138 RESPONSE re 134 Response filed by Ryan McCarthy. (Elicker, Natalie) (Entered: 02/02/2020)

02/03/2020

139 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic discovery conference was held on 2/3/2020. 15 minutes (Mallon, Kathleen) (Entered: 02/03/2020)

02/03/2020

140 ORDER: As discussed during today's discovery conference, and as agreed upon by the parties, the defendant shall produce to the plaintiffs the requested sample of 50 underlying applications by February 12, 2020. The defendant shall produce to the plaintiffs the remaining 50 requested underlying applications as expeditiously as possible. Signed by Judge Robert M. Spector on 2/3/2020. (Mallon, Kathleen) (Entered: 02/03/2020)

02/18/2020

141 MOTION for Leave to Appear Law Student Intern Mae Espinosa and Deepankar Gagneja by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Affidavit Law Student Intern Appearance, # 2 Affidavit Law Student Intern Appearance)Motions referred to Robert M. Spector(Wishnie, Michael) (Entered: 02/18/2020)

02/19/2020

142 Minute Entry for proceedings held before Judge Robert M. Spector: A Settlement Conference was held on 2/19/2020. Total Time: 7 hours and 10 minutes (Mallon, Kathleen) (Entered: 02/19/2020)

02/19/2020

143 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A telephonic settlement conference with the defendants only is set for 2/21/2020 at 12:30 PM before Judge Robert M. Spector. Please use the following conference call in number: (877) 8738017; access code: 7040261. (Mallon, Kathleen) (Entered: 02/19/2020)

02/20/2020

144 ORDER: The plaintiffs' Motion for Leave to File Law Student Appearances is GRANTED. (Doc. No. 141). Signed by Judge Robert M. Spector on 2/20/2020. (Mallon, Kathleen) (Entered: 02/20/2020)

02/21/2020

145 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference with defendants only was held on 2/21/2020. Total Time: 1 hours and 10 minutes (Mallon, Kathleen) (Entered: 02/21/2020)

02/21/2020 146 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS

ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A telephonic settlement conference with defendants only is set for 2/24/2020 at 4:30 PM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873-8017; access code: 7040261. (Mallon, Kathleen) (Entered: 02/21/2020)

02/25/2020

147 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. RESET FROM February 24, 2020 A Telephonic Settlement Conference with defendants only is set for 2/25/2020 at 04:00 PM before Judge Robert M. Spector. Please use the following dial in for this call: (877) 873-8017, access code: 7040261 (Watson, M.) (Entered: 02/25/2020)

02/25/2020

148 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A Telephonic Settlement Conference with plaintiffs only is set for 2/26/2020 at 04:30 PM before Judge Robert M. Spector. Please use the following dial in for this call: (877) 873-8017, access code: 7040261. (Watson, M.) (Entered: 02/25/2020)

02/25/2020

149 Minute Entry for proceedings held before Judge Robert M. Spector: Telephonic Settlement Conference with defendants only held on 2/25/2020. 27 minutes (Watson, M.) (Entered: 02/25/2020)

02/25/2020

150 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A Telephonic Settlement Conference with defendants only is set for 2/26/2020 at 11:30 AM before Judge Robert M. Spector. Please use the following dial in for this call: (877) 8738017, access code: 7040261. (Watson, M.) (Entered: 02/25/2020)

02/26/2020

151 Minute Entry for proceedings held before Judge Robert M. Spector: Telephonic Settlement Conference with defendants held on 2/26/2020. 50 minutes (Watson, M.) (Entered: 02/26/2020)

02/26/2020

152 Minute Entry for proceedings held before Judge Robert M. Spector: Telephonic Settlement Conference with plaintiffs held on 2/26/2020. 40 minutes (Watson, M.) (Entered: 02/26/2020)

02/26/2020

153 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO

IDENTIFICATION. A Telephonic Settlement Conference with plaintiffs is set for 3/2/2020 at 05:00 PM before Judge Robert M. Spector. Please use the following dial in for this call: (877)873-8017, access code: 7040261. (Watson, M.) (Entered: 02/26/2020)

03/03/2020

154 Minute Entry for proceedings held before Judge Robert M. Spector: Telephonic Settlement Conference with plaintiffs held on 3/2/2020. 15 minutes (Mallon, Kathleen) (Entered: 03/03/2020)

03/03/2020

155 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A telephonic settlement conference with defendants is set for 3/3/2020 at 4:00 PM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873-8017; access code: 7040261. (Mallon, Kathleen) (Entered: 03/03/2020)

03/03/2020

156 Minute Entry for proceedings held before Judge Robert M. Spector: Telephonic Settlement Conference with defendants held on 3/3/2020. 15 minutes (Mallon, Kathleen) (Entered: 03/03/2020)

03/06/2020

157 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A telephonic settlement conference with defendants is set for 3/9/2020 at 3:30 PM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873-8017; access code: 7040261. (Mallon, Kathleen) (Entered: 03/06/2020)

03/09/2020

158 Minute Entry for proceedings held before Judge Robert M. Spector: Telephonic Settlement Conference with defendants held on 3/9/2020. 20 minutes (Mallon, Kathleen) (Entered: 03/09/2020)

04/20/2020

159 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference with the defendant was held on 4/20/2020. 20 minutes (Mallon, Kathleen) (Entered: 04/20/2020)

04/20/2020

160 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A telephonic settlement conference with the defendant only is set for 4/24/2020 at 4:00 PM before Judge Robert M. Spector. Please use the following conference call in number: (877) 8738017; access code: 7040261. (Mallon, Kathleen) (Entered: 04/20/2020)

04/24/2020 161 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS

ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. RESET FROM 4/24/20 at 4:00 p.m.. Upon the request of counsel, the telephonic settlement conference with defendant only set for 4/24/20 at 4:00 p.m. is adjourned to 4/28/2020 at 10:00 AM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873-8017; access code: 7040261. (Mallon, Kathleen) (Entered: 04/24/2020)

04/28/2020

162 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference with defendant was held on 4/28/2020. 10 minutes (Mallon, Kathleen) (Entered: 04/28/2020)

04/29/2020

163 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A telephonic settlement conference with plaintiffs only is set for 5/4/2020 at 4:00 PM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873-8017; access code: 7040261. (Mallon, Kathleen) (Entered: 04/29/2020)

05/01/2020

164 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. RESET FROM 5/4/2020 at 4:00 p.m.. A telephonic settlement conference with the plaintiffs only is set for 5/4/2020 at 4:30 PM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873-8017; access code: 7040261. (Mallon, Kathleen) (Entered: 05/01/2020)

05/04/2020

165 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference with plaintiff was held on 5/4/2020. 15 minutes (Mallon, Kathleen) (Entered: 05/04/2020)

05/27/2020

166 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A telephonic settlement conference is set for 5/29/2020 at 4:00 PM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873-8017; access code: 7040261. (Mallon, Kathleen) (Entered: 05/27/2020)

06/01/2020

167 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference with plaintiffs was held on 5/29/2020. 15 minutes (Mallon, Kathleen) (Entered: 06/01/2020)

06/11/2020 168 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS

ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A telephonic settlement conference with defendant only is set for 6/12/2020 at 4:00 PM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873-8017; access code: 7040261. (Mallon, Kathleen) (Entered: 06/11/2020)

06/15/2020

169 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference with defendant was held on 6/12/2020. 20 minutes (Mallon, Kathleen) (Entered: 06/15/2020)

07/09/2020 170 NOTICE of Appearance by Dana Montalto on behalf of Alicia J. Carson, Stephen M. Kennedy (Montalto, Dana) (Entered: 07/09/2020)

07/14/2020

171 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference with defendant was held on 7/14/2020. 15 minutes (Mallon, Kathleen) (Entered: 07/14/2020)

07/14/2020

172 MOTION for William S.C. Goldstein to Withdraw as Attorney by Alicia J. Carson, Stephen M. Kennedy. Motions referred to Robert M. Spector(Goldstein, William) (Entered: 07/14/2020)

07/15/2020

173 ORDER granting 172 Motion to Withdraw as Attorney. Attorney William S.C. Goldstein terminated. Signed by Judge Robert M. Spector on 7/15/2020. (Mallon, Kathleen) (Entered: 07/15/2020)

07/15/2020

174 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A telephonic settlement conference with plaintiff only is set for 7/17/2020 at 3:00 PM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873-8017; access code: 7040261. (Mallon, Kathleen) (Entered: 07/15/2020)

07/16/2020

175 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. RESET FROM 7/17/20 at 3:00 p.m.. A telephonic settlement conference with plaintiff only is set for 7/17/2020 at 3:30 PM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873-8017; access code: 7040261. (Mallon, Kathleen) (Entered: 07/16/2020)

07/17/2020

176 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference with plaintiff was held on 7/17/2020. 20 minutes (Mallon, Kathleen) (Entered: 07/17/2020)

07/20/2020

177 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference with plaintiff was held on 7/20/2020. 10 minutes (Mallon, Kathleen) (Entered: 07/20/2020)

07/21/2020

178 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference with the defendant was held on 7/21/2020. 15 minutes (Mallon, Kathleen) (Entered: 07/21/2020)

07/31/2020

179 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A Settlement Conference is set for 8/7/2020 at 11:00 AM before Judge Robert M. Spector. In light of the risks posed by COVID-19, the Settlement Conference will be held by videoconference. (Mallon, Kathleen) (Entered: 07/31/2020)

08/06/2020

180 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference with defendant was held on 8/6/2020. 10 minutes (Mallon, Kathleen) (Entered: 08/06/2020)

08/07/2020

181 Minute Entry for proceedings held before Judge Robert M. Spector: A Settlement Conference was held on 8/7/2020. Total Time: 2 hours (Mallon, Kathleen) (Entered: 08/07/2020)

08/07/2020

182 ORDER: A settlement conference was held today, August 7, 2020. It is hereby ordered that the parties shall submit their draft settlement agreement to the Court at RMS_Settlement@ctd.uscourts.gov by September 4, 2020. Signed by Judge Robert M. Spector on 8/7/2020. (Mallon, Kathleen) (Entered: 08/07/2020)

08/07/2020

183 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A Settlement Conference is set for 9/10/2020 at 12:30 PM before Judge Robert M. Spector. In light of the risks posed by COVID-19, the Settlement Conference will be held by videoconference. (Mallon, Kathleen) (Entered: 08/07/2020)

09/02/2020

184 Joint MOTION for Extension of Time until 10/2/2020 to file the settlement agreement by Ryan McCarthy. Motions referred to Robert M. Spector(Elicker, Natalie) (Entered: 09/02/2020)

09/04/2020

185 ORDER granting 184 Defendant's joint Motion for Extension of Time until 10/2/2020 to file the settlement agreement. As a result of this extension of time, the parties will proceed with a Settlement Conference

on 10/7/20. Signed by Judge Robert M. Spector on 9/4/20. (Parrilla, Geraldo) (Entered: 09/04/2020)

09/04/2020

186 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. RESET FROM 9/10/20

A Settlement Conference has been scheduled for 10/7/2020 at 10:00 AM before Judge Robert M. Spector. In light of the COVID-19 pandemic, the Court will hold the Settlement Conference via videoconference. (Parrilla, Geraldo) (Entered: 09/04/2020)

10/02/2020
10/05/2020 10/07/2020 10/07/2020

187 MOTION for Leave to Appear Law Student Intern Joshua P. Britt, Rebecca C. Brooks by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Affidavit Law Student Intern Appearance, # 2 Affidavit Law Student Intern Appearance)Motions referred to Robert M. Spector(Burbank, Renee) (Entered: 10/02/2020)
188 ORDER granting 187 Motion for Leave to Appear Law Student Interns Joshua P. Britt and Rebecca C. Brooks. Signed by Judge Robert M. Spector on 10/5/2020. (Watson, M.) (Entered: 10/05/2020)
189 Minute Entry for proceedings held before Judge Robert M. Spector: A Settlement Conference held on 10/7/2020. Total time: 50 minutes. (Parrilla, Geraldo) (Entered: 10/07/2020)
190 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. A Settlement Conference is set for 10/15/2020 at 02:30 PM before Judge Robert M. Spector. In light of the COVID-19 pandemic, the Court will hold the Settlement Conference via videoconference. (Parrilla, Geraldo) (Entered: 10/07/2020)

10/07/2020

191 ORDER: A Settlement Conference is set for 10/15/2020. Please see the attached Settlement Conference Order for detailed instructions and deadlines. Signed by Judge Robert M. Spector on 10/72020.(Parrilla, Geraldo) (Entered: 10/07/2020)

10/13/2020

192 ORDER: The parties have advised the Court that the Settlement Conference scheduled for 10/15/20 is no longer necessary and that the case is ready to move forward with the necessary approval hearings before the United States District Court. Accordingly, the Settlement Conference scheduled for 10/15/20 is hereby cancelled.

Signed by Judge Robert M. Spector on 10/13/20.(Parrilla, Geraldo) (Entered: 10/13/2020)

10/19/2020 10/20/2020

193 MEMORANDUM AND ORDER (see attached). In accordance with the attached Memorandum and Order, Counsel for the parties are directed to attend a Zoom-enhanced teleconference on Thursday, October 29, 2020, beginning at 2:00 p.m. Counsel are directed to file and serve (1) a copy of the proposed settlement; (2) a memorandum in support of findings by the Court that the proposed settlement is fair, reasonable and adequate; and (3) the text of a proposed notice to members of the Plaintiff Class, which must include a description of the pending action, the terms of the proposed settlement, instructions for class members wishing to object to the settlement, and (when set by the Court) the date of the fairness hearing before the Court, on or before 12 noon on Tuesday, October 27, 2020. Signed by Judge Charles S. Haight, Jr. on October 19, 2020. (Marienko, A.) (Entered: 10/19/2020)
NOTICE regarding hearing via Zoom: The conference scheduled for 10/29/20 at 2:00 p.m. will be conducted via Zoom. Video link: https://www.zoomgov.com/j/1613556578?pwd=djBKMS9OV3k0amRW a3BhSWxkNmZLQT09 Call in number: 1-646-828-7666 Meeting ID: 161 355 6578 Meeting Password: 894286

Please note: Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, screenshots, streaming, and rebroadcasting in any form, of court proceedings. The Judicial Conference of the United States, which governs the practices of the federal courts, has prohibited it. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the court. (Barry, Donna) (Entered: 10/22/2020)

10/22/2020 10/23/2020

194 MOTION for Extension of Time until noon on 11/10/2020 to file (1) a copy of the proposed settlement; (2) a memorandum in support of findings by the Court that the proposed settlement is fair, reasonable, and adequate; and (3) the text of a proposed notice to members of the Plaintiff Class by Alicia J. Carson, Stephen M. Kennedy. Motions referred to Robert M. Spector(Burbank, Renee) (Entered: 10/22/2020)
195 ELECTRONIC ORDER granting the parties' 194 Joint Motion for Extension of Time for good cause shown. Accordingly, the Court extends

the deadline for the parties to submit (1) their proposed settlement agreement, (2) memorandum finding that the proposed settlement is fair, reasonable and adequate, and (3) class notice to November 10, 2020. The Zoom teleconference presently scheduled for October 29, 2020 at 2 pm is canceled and re-scheduled for November 17, 2020 at 2 pm. Signed by Judge Charles S. Haight, Jr. on October 23, 2020. (Marienko, A.) (Entered: 10/23/2020)

10/23/2020

NOTICE regarding hearing via Zoom: The conference scheduled for November 17, 2020 at 2:00 p.m. will be conducted via Zoom. The video link: https://www.zoomgov.com/j/1603794425?pwd=TUhIVXE0b1RZK01L NkRrSE9xbG9ydz09 Call in number: 1- (646) 828-7666 Meeting ID: 160 379 4425 Meeting Password: 164125

11/08/2020 11/10/2020

Please note: Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, screenshots, streaming, and rebroadcasting in any form, of court proceedings. The Judicial Conference of the United States, which governs the practices of the federal courts, has prohibited it. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the court. (Dorais, L.) (Entered: 10/23/2020)
196 MOTION for Extension of Time until noon on November 17, 2020 for the parties to submit (1) a copy of the proposed settlement; (2) a memorandum in support of findings by the Court that the proposed settlement is fair, reasonable, and adequate; and (3) the text of a proposed notice to members of the Plaintiff Class by Alicia J. Carson, Stephen M. Kennedy. Motions referred to Robert M. Spector(Burbank, Renee) (Entered: 11/08/2020)
197 ELECTRONIC ORDER granting the parties' 196 Motion for Extension of Time for good cause shown. Therefore, on or before 12 p.m. on November 17, 2020, the parties must file and serve (1) a copy of the proposed settlement; (2) a memorandum in support of findings by the Court that the proposed settlement is fair, reasonable and adequate; and (3) the text of a proposed notice to members of the Plaintiff Class in the above-captioned matter. The teleconference is rescheduled for 1 p.m. on Monday, November 23, 2020. Signed by Judge Charles S. Haight, Jr. on November 10, 2020. (Marienko, A.) (Entered: 11/10/2020)

11/12/2020

NOTICE regarding hearing via Zoom: The conference scheduled for November 23, 2020 at 1:00 p.m. will be conducted via Zoom. The video link: https://www.zoomgov.com/j/1603794425?pwd=TUhIVXE0b1RZK01L NkRrSE9xbG9ydz09 Call in number: 1-(646) 828-7666. Meeting ID: 160 379 4425 Meeting Password: 164125

Please note: Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, screenshots, streaming, and rebroadcasting in any form, of court proceedings. The Judicial Conference of the United States, which governs the practices of the federal courts, has prohibited it. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the court. (Dorais, L.) (Entered: 11/12/2020)

11/17/2020 11/23/2020 12/01/2020

198 Joint MOTION for Settlement by Alicia J. Carson, Stephen M. Kennedy. (Attachments: # 1 Memorandum in Support Plaintiffs' Memorandum in Support, # 2 Exhibit Settlement Agreement, # 3 Exhibit A (Class Notice), # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G)Motions referred to Robert M. Spector(Wishnie, Michael) (Entered: 11/17/2020)
199 Minute Entry for proceedings held before Judge Charles S. Haight, Jr: Conference Scheduled held on 11/23/2020. Total Time: 1 hours and 3 minutes(Court Reporter Falzarano Court Reporters.) (Gutierrez, Y.) (Entered: 11/23/2020)
200 TRANSCRIPT of Proceedings: Type of Hearing: Settlement/Status Conference. Held on 11/23/20 before Judge Charles S. Haight. Court Reporter: Kirsten Telhiard. IMPORTANT NOTICE - REDACTION OF TRANSCRIPTS: To remove personal identifier information from the transcript, a party must electronically file a Notice of Intent to Request Redaction with the Clerk's Office within seven (7) calendar days of this date. If no such Notice is filed, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available through PACER without redaction 90 days from today's date. The transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. The policy governing the redaction of personal information is located on the court website at www.ctd.uscourts.gov. Redaction

Request due 12/22/2020. Redacted Transcript Deadline set for 1/1/2021. Release of Transcript Restriction set for 3/1/2021. (Telhiard, K) (Entered: 12/01/2020)

12/08/2020

202 NOTICE OF E-FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION.

A Settlement Conference Call is set for 12/10/2020 at 11:00 AM before Judge Robert M. Spector. In light of the COVID-19 pandemic, the Court will hold this conference via Zoom. (Parrilla, Geraldo) (Entered: 12/08/2020)

12/10/2020

203 Minute Entry for proceedings held before Judge Robert M. Spector: A Settlement Conference Call held on 12/10/2020. Total Time: 1 hours and 8 minutes (Parrilla, Geraldo) (Entered: 12/14/2020)

PACER Service Center Transaction Receipt

12/25/2020 09:44:33

PACER Login: crclearinghouse Client Code: Rogers

Description: Docket Report Search Criteria: 3:16-cv-02010-CSH

Billable Pages: 19

Cost:

1.90

Exempt flag: Not Exempt Exempt reason: Not Exempt

 
 Case 3:16-cv-02010-WWE Document 74 Filed 12/21/18 Page 1 of 17

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STEPHEN M. KENNEDY, and ALICIA J. CARSON,
individually and on behalf of all similarly situated persons,

16cv2010 (WWE)

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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Case 3:16-cv-02010-WWE Document 74 Filed 12/21/18 Page 11 of 17
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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Case 3:16-cv-02010-WWE Document 74 Filed 12/21/18 Page 12 of 17
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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Case 3:16-cv-02010-WWE Document 74 Filed 12/21/18 Page 15 of 17
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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Case 3:16-cv-02010-WWE Document 74 Filed 12/21/18 Page 17 of 17 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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 Case 3:16-cv-02010-WWE Document 1 Filed 12/08/16 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHEN M. KENNEDY, Plaintiff,
v.
ERIC FANNING, Secretary of the Army, Defendant.

Civil Action No.: _____ December 8, 2016

COMPLAINT Steve Kennedy is a United States Army veteran who served his country with distinction in Iraq, led teams despite a junior rank, trained new soldiers how to wage war, and fought valiantly during a year-long deployment to Iraq. Yet Mr. Kennedy’s combat service left him with the invisible wounds of war – severe post-traumatic stress disorder and related mental health disorders – which the Army did not fully understand or have the capacity to treat at the time. While continuing to lead his team to top performance marks within his battalion, Mr. Kennedy began abusing alcohol, self-isolating, and self-injuring, ultimately leading him to go absent without leave for two weeks. Upon his return, Mr. Kennedy’s command sent him for several psychiatric evaluations, in which he was diagnosed with major depressive disorder; subsequently, the Army discharged him with a General discharge. Since being thrown out of the military, Mr. Kennedy has sought treatment for PTSD, earned a bachelor’s degree, and is now pursuing a Ph.D in a highly selective program in Biophysical Chemistry. However, Mr. Kennedy is forced to continue to live with the stigma and financial burden of a General, rather than Honorable discharge. In 2015, Mr. Kennedy applied to

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the Army Discharge Review Board for a discharge upgrade on the basis that his undiagnosed PTSD mitigated the two-week absence that led to his discharge. The Army denied Mr. Kennedy’s application in a decision that is arbitrary, capricious, unsupported by the evidence, and contrary to the Army’s own rules, in violation of the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment. Mr. Kennedy asks the Court to set aside and hold unlawful the Army decision and grant his discharge upgrade so that his record may finally reflect the character of his service.
JURISDICTION AND VENUE 1. This Court has jurisdiction under 28 U.S.C. § 1331. This action arises under the Administrative Procedure Act, 5 U.S.C. § 706, and the Due Process Clause of the Fifth Amendment. 2. Venue lies in this district pursuant to 28 U.S.C. § 1391(e)(1)(C) as Plaintiff Kennedy resides in the District of Connecticut, no real property is involved in the action, and Defendant Eric Fanning is sued in his official capacity as an officer of the United States.
PARTIES 3. Plaintiff Steve Kennedy is a veteran of the United States Army. He is a citizen of the United States and resides in Fairfield, Connecticut. 4. Defendant Eric Fanning, Secretary of the Army, is sued here in his official capacity. Defendant is empowered to act through the Army Discharge Review Board to change any record of a former member of the Army whenever necessary to correct an error or to remove an injustice.
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FACTUAL ALLEGATIONS 5. Mr. Kennedy was born August 22, 1986 in Bay Shore, New York. He grew up in Monroe, Connecticut and currently resides in Fairfield, Connecticut with his wife and two children. 6. Mr. Kennedy joined the Army in May 2006. As Iraq descended into civil conflict and the war in Afghanistan dragged on, he enlisted with the hope of being able to make a positive difference in the world right away. 7. Mr. Kennedy completed basic training in Ft. Benning, Georgia and was initially stationed at Ft. Bragg, North Carolina. 8. Mr. Kennedy served in the Airborne Infantry, MOS 11B1P, in A Company of the 2nd Battalion, 504th Parachute Infantry Regiment in the 82nd Airborne Division. 9. He was deployed to Iraq from June 5, 2007 to July 18, 2008. 10. Mr. Kennedy’s exceptional service is exemplified by his record in Iraq. While still a Private First Class, Mr. Kennedy took over when his team leader was on leave, training new soldiers and leading his team to the highest rated training performance in his company. For this accomplishment, he received an Army Achievement Medal on the recommendation of his Company Commander. 11. The Army promoted Mr. Kennedy early to Specialist and appointed him the team leader for a newly created machine gun team. He led his team on hundreds of successful missions. During his tour in Iraq, Mr. Kennedy served as a Humvee turret gunner and machine gun operator. 12. During the first half of his deployment, from July 2007 to March 2008, Mr. Kennedy’s unit provided route clearance and supply-convoy security between Western and
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Central Iraq, an area where improvised explosive devises (IEDs) were commonplace. In the first months of the mission, his unit’s convoys either hit or discovered IEDs at least every other week.
13. From March 2008 to July 2008, his unit was responsible for disrupting al-Qaeda in Iraq supply lines through the desert villages of the Anbar and Saladin Provinces. His unit was engaged in several firefights with al-Qaeda combatants, two of which ended with an insurgent detonating a suicide vest.
14. Mr. Kennedy was awarded the Army Commendation Medal, which is bestowed upon service members who distinguished themselves by heroism, meritorious achievement or service, the Army Achievement Medal, and the Combat Infantryman Badge. Mr. Kennedy and his unit also received National Defense Service Medals, Global War on Terrorism Service Medals, Iraq Campaign Medals, and Overseas Service Ribbons for their deployment.
15. Upon Mr. Kennedy’s return to Fort Bragg, he continued his record of excellence. He continued to serve as a team leader and was asked to temporarily step in for another team leader. He led both teams to some of the highest performance ratings in the battalion. His platoon sergeant recommended Mr. Kennedy for promotion for Sergeant as soon as he was eligible, with the full support of his first sergeant.
16. Despite continuing to thrive as a leader, Mr. Kennedy’s PTSD symptoms began to emerge after he returned from deployment. He became increasingly self-isolating, had trouble sleeping, avoided stressful situations, and suffered from survivor’s guilt and depression. He had no sense of a future, feeling as if he was still waiting for the IED that should have killed him in Iraq. He started to drink heavily, abusing alcohol to soothe his PTSD symptoms.
17. During this time, Mr. Kennedy began to physically harm himself. On several occasions, he walked around Fayetteville late at night, hoping to be mugged or attacked. He also
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started to self-mutilate, cutting his hands but making up stories so that his injuries would appear to be the result of an accident.
18. Planning the cutting incidents was therapeutic for him. Orchestrating the cover-up and working up the nerve to do it distracted him from his problems. As his condition worsened, Mr. Kennedy began having suicidal thoughts.
19. After his deployment, Mr. Kennedy was also having serious relationship and financial problems. He tried to conceal his troubles and would self-medicate to avoid the stress of dealing with his problems. Avoidance is a common symptom of PTSD.
20. As part of his effort to mask his growing personal and mental health difficulties, Mr. Kennedy devoted himself to working hard and maintaining his good performance in the Army. It took enormous mental energy to do this, and at the end of each day, he was burned out. After work, he would drink or smoke on his back porch with a friend who was having similar problems.
21. Mr. Kennedy did not seek help for his mental health problems because he feared being labeled weak or losing the trust of members of his unit. He had observed how leadership made targets out of the few soldiers who sought mental health treatment, encouraging junior enlisted soldiers to avoid them and not to trust them.
22. In March 2009, while Mr. Kennedy’s mental health issues had grown dire without treatment, his leadership told him that he would be denied leave to attend his own wedding, a leave about which he had informed his squad leader a year prior and which had been informally approved. He was unfamiliar with the process for asking for an individual leave request, and his command did not tell him he needed to complete additional paperwork until they notified him of a training exercise that would prevent him from taking leave for his wedding.
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23. Mr. Kennedy feared that he would either lose his wife if he did not return home for his wedding or be rejected if he confronted his leadership. His mental health condition made it impossible for him to resolve this conflict, and he instead responded by injuring himself and considering suicide. He ultimately concluded that his unit did not care about him and would not miss him and so went absent without leave (AWOL) to attend his wedding.
24. Upon his return to the base, Mr. Kennedy’s Company Commander sent him to see a psychologist because going AWOL was uncharacteristic for him. After a twenty-minute examination, the psychologist diagnosed Mr. Kennedy with major depressive disorder, which has many of the same symptoms as PTSD. The psychologist also informed him that the Army did not have the resources to provide him with therapy and recommended that he be administratively discharged.
25. After receiving his diagnosis, Mr. Kennedy was ordered to meet with a psychiatrist, who prescribed antidepressants and sleeping pills to alleviate his suicidal thoughts and other depressive symptoms. He did not meet with any other mental health professionals or receive any other treatment in the two months between his diagnosis and discharge.
26. Ignoring the clinicians’ recommendations, Mr. Kennedy’s Command Sergeant Major recommended he be transferred to a new company for a “fresh start.” The Command Sergeant Major also canceled Mr. Kennedy’s promotion orders and recommended he be demoted to Private First Class. His leadership offered him no treatment other than medication.
27. The Army had scheduled Mr. Kennedy’s new unit to deploy to Iraq shortly after his reassignment. His mental health problems had not improved and his new leadership gave him a choice: he could return to combat with his new unit without treatment, or he could accept a General discharge and receive treatment for his mental health condition.
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28. Because Mr. Kennedy had gone AWOL, his commander chose to discharge him for the commission of a serious offense and lowered the characterization of his discharge to General.
29. Being a soldier was the center of Mr. Kennedy’s identity during his service, and he gave everything he had to do the best job he possibly could. He was proud of his service and his ability to excel in the Army.
30. Leaving the Army with a judgment saying that his service was less honorable than others’ caused serious damage to his psyche at a time when he was already struggling with serious mental health issues. It has taken him years to come to terms with his discharge, and he has begun discussing it outside of his family and close Army friends only in the past few months.
31. As a result of his General discharge, Mr. Kennedy is ineligible for education benefits under the GI bill. He paid for his first college semester out of pocket. While he was eventually able to access some VA vocational rehabilitation benefits to help pay for the rest of college, his General discharge reduced the amount of benefits available, forcing him to have to work full-time while pursuing his degree. The difference between the VA benefits he received and the GI benefits he would have been eligible for with an Honorable discharge is approximately $75,000.
32. In addition, because of his discharge status, Mr. Kennedy was ineligible for state benefits such as property tax exemptions and many non-profit opportunities and scholarships that are open only to veterans with an Honorable discharge.
33. After Mr. Kennedy’s discharge, he continued to struggle with depression and was ultimately diagnosed with PTSD by both the VA and private clinicians.
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34. VA clinicians described Mr. Kennedy as suffering from numerous PTSD symptoms, including depression, panic attacks in crowds, foreboding feelings and anxiety, sleep disturbances, and intrusive thoughts about incidents he experienced.
35. The VA rated him fifty percent disabled for PTSD. 36. Mr. Kennedy described to his treating therapist that he continues to deal with “intrusive thoughts” of the disfigured bodies of the people that he and his unit killed, as well as images of the faces and mangled bodies of insurgents who had tried to kill his unit with suicide bombs. 37. According to Mr. Kennedy’s treating therapist, he experiences “survivor guilt,” which initially caused him to minimize and avoid his PTSD symptoms. 38. Mr. Kennedy has been in therapy for six years and continues to receive treatment for PTSD through the VA and private providers. He still struggles with hypervigilance, survivor’s guilt, and depression. His survivor’s guilt and depression are closely tied to his discharge status and the trauma of having his identity as a soldier stripped away so harshly. 39. Since receiving treatment, Mr. Kennedy continues to demonstrate the character and excellence that defined much of his service in the Army. 40. Mr. Kennedy legally married his wife before his deployment in early 2007. Their wedding ceremony was performed in May 2009, and they have a daughter born in November 2013 and a son born in May 2016. 41. In May 2012, Mr. Kennedy received a Bachelor of Science degree from the University of Massachusetts Boston, which he earned while working full time.
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42. Following graduation, Mr. Kennedy began graduate work at a highly selective program at New York University in Biophysical Chemistry. He passed his Qualifying Exam with distinction and expects to publish two research papers and graduate in 2017.
43. Mr. Kennedy is active in veterans’ organizations. He is the founder and team leader of the Iraq and Afghanistan Veterans of America, Connecticut Chapter.
44. Mr. Kennedy first applied for a records review from the Army Discharge Review Board (ADRB or Board) in November 2010. The Board rejected his application.
45. On February 18, 2015, Mr. Kennedy renewed his application, requesting a personal appearance.
46. Despite presenting documentation to the Board of his diagnoses of PTSD from the VA, Mr. Kennedy’s treating therapist, and a psychologist, in October 2015 the Board denied his application again, concluding only that Mr. Kennedy was “diagnosed with a depressive disorder not otherwise specified.” A copy of the decision is attached as Exhibit 1.
47. The ADRB rejected Mr. Kennedy’s application without mention of binding guidance regarding PTSD cases issued in 2014 by then-Secretary of Defense Chuck Hagel.
48. The ADRB decision did not respond to several issues raised by Mr. Kennedy, including that his service was otherwise exemplary, that family and personal problems resulting from the denial of leave to attend his wedding affected his ability to serve satisfactorily, and that he was not properly diagnosed with PTSD by the Army in part because his “survivor’s guilt” caused him to minimize and avoid his PTSD symptoms.
49. Additionally, the ADRB decision failed to explain why the Army mental health evaluations were more persuasive than the psychologist evaluation, therapist evaluation, and VA
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decision submitted by Mr. Kennedy establishing that he suffered from PTSD and that his decision to go AWOL was a direct result of his PTSD and depression.
STATUTORY AND REGULATORY BACKGROUND 50. Upon discharge, military personnel receive a certificate that characterizes their service as Honorable, General (Under Honorable Conditions), Other Than Honorable, Bad Conduct, or Dishonorable. 32 C.F.R. §§ 724.109, 724.111. 51. A veteran’s discharge characterization affects his or her eligibility for various benefits and support services administered by the U.S. Department of Veterans Affairs, see, e.g., 38 U.S.C. § 101(2); 38 C.F.R. § 3.12, as well as those provided by state laws. 52. To receive VA education benefits and services through the Post-9/11 GI Bill program, a veteran generally must be discharged from service with an Honorable discharge or be discharged or released for a service-connected disability. 38 U.S.C. § 3311(b)-(c). 53. Congress has authorized the Secretary of the Army, acting through the ADRB, to correct the improper or inequitable discharge of any former member of the Army. 10 U.S.C. § 1553. 54. A veteran applying for a discharge upgrade at the ADRB has a right to two types of reviews: a documentary record review and a personal appearance hearing. Each applicant is entitled to one of each. 32 C.F.R. § 70.8(b)(3). 55. The ADRB reviews discharges for propriety and equity. Id. § 70.9. 56. On September 3, 2014, then-Secretary of Defense Chuck Hagel directed the ADRB and other records correction boards to give “liberal consideration” to discharge upgrade
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applications submitted by veterans who have been diagnosed with PTSD. Memorandum dated Sept. 3, 2014, Secretary of Defense Chuck Hagel (“Hagel Memo”) (copy attached as Exhibit 2).
57. The Hagel Memo also directs military boards to consider PTSD and “PTSDrelated conditions” as “potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service.” Id.
58. The ADRB must respond to all issues that provide a basis for the decision of whether there should be a change in the character of or reason for discharge. 32 C.F.R. § 70.8(d); DoD Instruction 1332.28, Discharge Review Board Procedures and Standards (April 4, 2004).
59. When the ADRB makes a factual determination after considering contradictory evidence in the record, it must explain in its decision “why the information relied upon was more persuasive than the information that was rejected.” Id.
60. Federal courts may review ADRB decisions under the Administrative Procedure Act. 5 U.S.C. § 706.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Administrative Procedure Act 61. The allegations of the preceding paragraphs are incorporated by reference as if fully set forth herein. 62. Defendant’s denial of Mr. Kennedy’s application for a discharge upgrade is a final agency action that is arbitrary, capricious, and an abuse of discretion, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), because the Defendant failed to give “special consideration” to Mr. Kennedy’s diagnosis by the VA or to give “liberal consideration” to diagnoses by private practitioners, as directed by the Hagel Memo.
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63. Defendant failed to consider important evidence that demonstrated PTSD existed at the time of discharge and that Mr. Kennedy’s PTSD or PTSD-related condition mitigated the misconduct that allegedly led to his discharge.
64. Defendant failed to follow its own rules by failing to apply the Hagel Memo to Mr. Kennedy’s application.
65. Defendant failed to follow its own rules by not responding to all the issues raised in Mr. Kennedy’s application.
66. Defendant failed to provide a decision that demonstrated a rational connection between the evidence presented and the facts found, which makes the ADRB decision arbitrary, capricious, and an abuse of discretion, in violation of the APA. 5 U.S.C. § 706(2)(A).
SECOND CLAIM FOR RELIEF Fifth Amendment to the U.S. Constitution,
Violation of Procedural Due Process 67. The allegations of the preceding paragraphs are incorporated by reference as if fully set forth herein. 68. The due process protections of the Fifth Amendment to the U.S. Constitution require that federal administrative agencies conduct adjudications in a fair and orderly manner. 69. Defendant did not conduct a fair adjudication of Mr. Kennedy’s discharge upgrade application because the ADRB failed to apply the Hagel Memo to his claim. 70. Defendant also failed to conduct a fair adjudication of Mr. Kennedy’s discharge upgrade application because the ADRB failed to provide Mr. Kennedy with a decisional document that articulated the reasons for his denial based on the evidence presented. 71. The due process protections of the Fifth Amendment also require that federal administrative agencies follow their own regulations and sub-regulatory guidance in conducting their adjudications.
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72. Defendant failed to follow its own rules by failing to apply the Hagel Memo to
Mr. Kennedy’s application.
73. Defendant failed to follow its own rules by not responding to all the issues raised
in Mr. Kennedy’s application.
74. Defendant also failed to follow its own rules by not explaining why the Army’s
determination that Mr. Kennedy did not suffer from PTSD was more persuasive than the
submitted evidence that Mr. Kennedy did suffer from PTSD.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court grant the following relief:
(1) Hold unlawful and set aside Mr. Kennedy’s October 20, 2015 ADRB decision,
and change the characterization of his discharge to Honorable;
(2) Award attorneys’ fees and costs; and
(3) Grant such other and further relief this Court deems just and proper. Dated: December 8, 2016
New Haven, Connecticut
Respectfully Submitted,
By: /s/ Michael J. Wishnie
Ashley Ingram, Law Student Intern Helen White, Law Student Intern Aaron Wenzloff, ct28616 Michael J. Wishnie, ct27221 Veterans Legal Services Clinic Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520-9090 t. (203) 432-4800 f. (203) 432-1426 aaron.wenzloff@yale.edu michael.wishnie@yale.edu
Counsel for Plaintiff 13

 
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHEN M. KENNEDY and ALICIA J. CARSON, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
ROBERT SPEER, Acting Secretary of the Army,
Defendant.

No. 3:16-cv-2010-WWE April 17, 2017

AMENDED COMPLAINT Since the September 11, 2001 terrorist attacks, nearly two million young men and women have volunteered to join the United States Army and have deployed, often multiple times, to Iraq and Afghanistan to fight for our country. Thousands were killed or maimed, and hundreds of thousands more suffer from the invisible wounds of war. The Army routinely fails to treat these soldiers’ serious mental health conditions and instead gives them less-than-Honorable discharges, often because of infractions related to mental health crises. As a result, these veterans lose access to the very services and benefits they need to heal their wounds and thrive in civilian life. Even worse, the Army—through the Army Discharge Review Board (“ADRB”), created by Congress to correct improper and unjust discharges—betrays these veterans yet again by wrongfully denying their applications for discharge upgrades. Steve Kennedy and Alicia Carson bring this class action on behalf of these veterans who continue to be unlawfully denied discharge upgrades that would accurately reflect their honorable service to the nation.
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Steve Kennedy served his country with distinction in the United States Army from 2006 until 2009, leading several teams despite his junior rank, training new soldiers, and fighting valiantly in Iraq in 2007 and 2008. Like many others, Mr. Kennedy returned from Iraq with severe PTSD and major depression, which the Army did not adequately diagnose or treat. Mr. Kennedy continued to lead his team to top performance marks but began abusing alcohol, selfisolating, and self-injuring, which ultimately led to him going absent without leave for two weeks. Upon Mr. Kennedy’s return, his command ordered him to be psychiatrically evaluated, where the Army clinician diagnosed him with major depressive disorder, with no mention of the possibility of PTSD despite the two diagnoses’ many overlapping symptoms. The Army subsequently discharged him with a General discharge based on his absence without leave.
Alicia Carson deployed to Afghanistan with the Army in early 2010. Within five months, her command promoted her from Assistant Gunner to Gunner and recommended her for placement with a Special Forces unit. As the only woman in her Special Forces unit, Ms. Carson took part in over 100 missions in fewer than 300 days and served in combat on a regular basis, despite the Army’s official prohibition against women serving in combat roles. Upon Ms. Carson’s return to the United States, clinicians from the Department of Defense and Department of Veterans Affairs both diagnosed Ms. Carson with PTSD and traumatic brain injury, and she obtained a doctor’s note to be excused from National Guard drills. Despite Ms. Carson’s doctor’s note and accepted medical excuse for missing drills, the National Guard discharged her with a General discharge because of her absences.
Both Mr. Kennedy and Ms. Carson applied to the ADRB to request that their discharge statuses be upgraded to Honorable. The ADRB denied both Mr. Kennedy’s and Ms. Carson’s applications, as it has done for many other veterans in similar situations, even though their
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applications provided clear evidence showing that their service-connected PTSD and related conditions mitigated their misconduct and despite the issuance in 2014 by Secretary of Defense Chuck Hagel of binding instructions directing records-correction boards to give “liberal consideration” to PTSD diagnoses and to Service treatment records indicating one or more symptoms of PTSD or related conditions at the time of discharge.
The ADRB’s decisions are arbitrary, capricious, unsupported by the evidence, and contrary to the Army’s own rules, in violation of the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment. On behalf of themselves and others similarly situated, Mr. Kennedy and Ms. Carson ask the Court to set aside and hold unlawful these decisions and grant their discharge upgrade applications so that their records may finally reflect the true character of their service.
JURISDICTION AND VENUE 1. This Court has jurisdiction under 28 U.S.C. § 1331. This action arises under the Administrative Procedure Act, 5 U.S.C. § 706, and the Due Process Clause of the Fifth Amendment. 2. Venue lies in this district pursuant to 28 U.S.C. § 1391(e)(1)(C). Plaintiff Stephen Kennedy resides in the District of Connecticut, no real property is involved in the action, and Defendant Robert Speer is sued in his official capacity as an officer of the United States.
PARTIES 3. Stephen Kennedy is a Connecticut resident and veteran of the U.S. Army. 4. Alicia Carson is a former Connecticut resident and veteran of the U.S. Army and the Connecticut Army National Guard. She presently resides in Alaska. 5. Defendant Robert Speer, Acting Secretary of the Army, is sued in his official capacity. Congress has authorized the Secretary of the Army, acting through the ADRB, to
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correct the improper or inequitable discharge of any former member of the Army. 10 U.S.C. § 1553(a) (2012); 32 C.F.R. § 70.9 (1978).
REGULATORY BACKGROUND 6. Upon discharge, military personnel receive a certificate that characterizes their service as Honorable, General (Under Honorable Conditions), Other than Honorable, Bad Conduct, or Dishonorable. 32 C.F.R. §§ 724.109, 724.111. 7. A veteran’s discharge characterization affects their eligibility for various benefits and support services administered by the U.S. Department of Veterans Affairs (“VA”), see, e.g., 38 U.S.C. § 101(2); 38 C.F.R. § 3.12, as well as those benefits and services provided by state laws. 8. To receive VA education benefits and services through the Post-9/11 GI Bill program, a veteran must be discharged from service with an Honorable discharge or be discharged or released for a service-connected disability. 38 U.S.C. § 3311(b)-(c). 9. A veteran applying for a discharge upgrade at the ADRB has a right to two types of reviews: a documentary records review and a personal appearance hearing. 32 C.F.R. § 70.8(b)(3). 10. The ADRB reviews discharges for propriety and equity. 32 C.F.R. § 70.9. 11. On September 3, 2014, then-Secretary of Defense Chuck Hagel directed all records-correction boards to give “special consideration” to PTSD diagnoses by the VA and “liberal consideration” to diagnoses of PTSD by civilian providers when adjudicating discharge upgrade applications submitted by veterans. Ex. 1, Memorandum from Chuck Hagel, Secretary of Defense (Sept. 3, 2014) (“Hagel Memo”).
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12. The Hagel Memo also directs military boards to consider PTSD and “PTSDrelated conditions” as “potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service.” Id.
13. As the ADRB has recognized, the Hagel Memo is binding upon its adjudications of veterans’ discharge upgrade claims. See, e.g., ADRB Decision No. AR20150012549, Sept. 28, 2016, boards.law.af.mil/ARMY/DRB/CY2015/AR20150012549.txt; ADRB Decision No. AR20150017587, May 9, 2016, http://boards.law.af.mil/ARMY/DRB/CY2015/AR20150017587.txt.
14. The ADRB must respond to all issues relevant to the decision of whether there should be a change in the character of or reason for discharge. 32 C.F.R. § 70.8(d); DoD Instruction 1332.28, Discharge Review Board Procedures and Standards (Apr. 4, 2004).
15. When the ADRB makes a factual determination after considering contradictory evidence in the record, it must explain in its decision “why the information relied upon was more persuasive than the information that was rejected.” Id.
16. The authorizing statute, 10 U.S.C. § 1553, also authorizes the creation of Boards for Correction of Military Records, which may also revise military documents. However, the statute does not require a veteran to apply to both boards prior to seeking judicial review, nor does it establish any sort of internal appeals process. Id.
17. Federal courts may review ADRB decisions as final agency actions under the Administrative Procedure Act. 5 U.S.C. § 706.
18. The Army and other administrative agencies are responsible for maintaining records for a variety of official purposes, including judicial review of agency action. 5 U.S.C § 552a(e)(5); 44 U.S.C. §§ 3101, 3301.
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FACTS AND PROCEEDINGS Allegations as to Class Representative Stephen Kennedy 19. Mr. Kennedy was born in 1986 and grew up in Monroe, Connecticut. He resides in Fairfield, Connecticut, with his wife and two children. 20. Mr. Kennedy is active in veterans’ organizations. He is the founder and team leader of the Connecticut Chapter of Iraq and Afghanistan Veterans of America. 21. Mr. Kennedy joined the Army in May 2006. As Iraq descended into civil conflict and the war in Afghanistan dragged on, he enlisted with the hope of being able to make an immediate positive difference in the world. 22. Mr. Kennedy completed basic training at Ft. Benning, Georgia, and was initially stationed at Ft. Bragg, North Carolina. 23. He served in the Airborne Infantry, MOS 11B1P, in A Company of the 2nd Battalion, 504th Parachute Infantry Regiment in the 82nd Airborne Division. 24. Mr. Kennedy was deployed to Iraq from June 2007 to July 2008, during which time he served as a Humvee turret gunner and machine gun operator. 25. During the first part of his deployment, Mr. Kennedy’s unit provided route clearance and security for a supply convoy between western and central Iraq, an area where improvised explosive devices (“IEDs”) were common. In the first months of the mission, his unit’s convoys hit or discovered IEDs approximately every other week. 26. From March to July of 2008, Mr. Kennedy’s unit was responsible for disrupting Al Qaeda supply lines through the desert villages of Anbar and Saladin Provinces. His unit was engaged in several firefights with Al Qaeda combatants, two of which ended with an insurgent detonating a suicide vest.
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27. Early in his deployment, Mr. Kennedy received an Army Achievement Medal for taking over leadership when his team leader went on leave, training new soldiers and leading his team to the highest-rated training performance in his company, all while he was still only a Private First Class.
28. While Mr. Kennedy was deployed in Iraq, the Army promoted him early to Specialist and appointed him team leader of a newly created machine gun team. He led his team on hundreds of successful missions.
29. For his continuing exceptional service, at the end of his deployment to Iraq, Mr. Kennedy was awarded the Army Commendation Medal, which is awarded to service members who distinguish themselves by heroism, meritorious achievement, or service.
30. For his combat service, Mr. Kennedy was awarded the Combat Infantryman Badge, which is awarded to infantrymen of rank Colonel and below who personally fought in active ground combat.
31. In addition, Mr. Kennedy and his unit received National Defense Service Medals, Global War on Terrorism Service Medals, Iraq Campaign Medals, and Overseas Service Ribbons.
32. Upon Mr. Kennedy’s return to Fort Bragg, he expanded his record of excellence. He continued to serve as a team leader, and his command asked him to temporarily step in for another team leader. He led both teams to some of the highest performance ratings in the battalion. His Platoon Sergeant recommended Mr. Kennedy for promotion to Sergeant as soon as he was eligible, with the full support of his First Sergeant.
33. Although Mr. Kennedy continued to thrive as a leader, his PTSD symptoms began to emerge after he returned from deployment. He began to self-isolate, had trouble sleeping,
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avoided stressful situations, and suffered from “survivor’s guilt” and depression. He had no sense of a future, feeling as if he was still waiting for the IED that should have killed him in Iraq. He started to drink heavily, abusing alcohol to soothe his PTSD symptoms.
34. During this time, Mr. Kennedy began to physically harm himself. On several occasions, he walked around Fayetteville late at night, hoping to be mugged or attacked.
35. He also started to self-mutilate, cutting his hands but making up stories so that his injuries would appear to be the results of accidents. Planning the cutting incidents was therapeutic for him. Orchestrating the cover-up and working up the nerve to hurt himself distracted him from his intrusive memories.
36. As his condition worsened, Mr. Kennedy began having suicidal thoughts. 37. After his deployment, Mr. Kennedy was also having serious relationship and financial difficulties. He tried to conceal his troubles and would self-medicate to avoid the stress of dealing with his hardship. Such avoidant behavior is a common symptom of PTSD. 38. As part of his effort to mask his growing personal and mental health difficulties, Mr. Kennedy devoted himself to working hard and maintaining his good performance in the Army. It took enormous mental energy to do this, and at the end of each day, he was burned out. After work, he would drink or smoke on his back porch with a friend who was having similar difficulties. 39. Mr. Kennedy did not seek help for his mental health struggles because he feared being labeled weak and losing the trust of members of his unit. He had observed how leadership made targets out of the few soldiers who sought mental health treatment, encouraging junior enlisted soldiers to avoid and not trust those who did obtain assistance.
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40. By March 2009, Mr. Kennedy’s mental health issues had grown dire without treatment. Around this time his leadership told him that he would be denied leave to attend his own wedding.
41. Mr. Kennedy had informed his squad leader about his need to go on leave for his wedding a year prior and had been informally approved at that time. His command did not tell him he needed to complete additional paperwork until they notified him shortly before a training exercise that would prevent him from taking leave for his wedding.
42. Mr. Kennedy feared that he would either lose his wife if he did not return for his wedding or be denied leave if he confronted his leadership. His mental health condition made it impossible for him to resolve this conflict, and he instead responded by injuring himself and contemplating suicide. Concluding that his unit did not care about him and would not miss him, he went absent without leave (“AWOL”) to attend his wedding.
43. Upon his return to the base, Mr. Kennedy’s company commander sent him to see a psychologist because going AWOL was uncharacteristic for him. After a twenty-minute examination, the psychologist diagnosed Mr. Kennedy with major depressive disorder but made no mention of PTSD, although the two conditions share many symptoms. The psychologist also stated that the Army lacked the resources to provide Mr. Kennedy with therapy to address his major depressive disorder and recommended that he be administratively discharged.
44. After receiving his diagnosis, Mr. Kennedy was ordered to meet once with a psychiatrist, who prescribed antidepressants and sleeping pills to alleviate his suicidal thoughts and other symptoms. He did not meet with any other mental health professionals or receive any other treatment in the two months between his diagnosis and his discharge.
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45. Ignoring the clinicians’ recommendations, Mr. Kennedy’s Command Sergeant Major recommended he be transferred to a new company for a “fresh start.” The Command Sergeant Major also canceled Mr. Kennedy’s promotion orders and recommended he be demoted to Private First Class. His leadership offered him no treatment other than medication.
46. The Army had scheduled Mr. Kennedy’s new unit to deploy to Iraq shortly after his reassignment. His mental health problems had not improved, and his new leadership gave him a choice: return to combat with his new unit, where adequate treatment would be unavailable, or accept a discharge and seek treatment for his mental health condition on his own.
47. Mr. Kennedy knew he urgently needed treatment, and he chose to be discharged so he could get the help he required. Because Mr. Kennedy had gone AWOL, his new commander opted to discharge him for the commission of a “serious offense” and lowered the characterization of his discharge to General. The Army discharged him on July 27, 2009.
48. Being a soldier was the center of Mr. Kennedy’s identity throughout his service, and he gave everything he had to do the best job he could. He was proud of his service and his ability to excel in the Army.
49. Mr. Kennedy’s General discharge status does not accurately reflect his exemplary performance in the Army, which is corroborated by his many service-related awards and contradicted by only one instance of poor judgment and disobeying orders—his briefly going AWOL to attend his own wedding—that was a direct result of his service-connected PTSD.
50. Likewise, Mr. Kennedy’s reason for separation—“Misconduct (Serious Offense)”––does not accurately reflect the character of his service or the mitigating effect of the direct connection between his service-connected PTSD and his AWOL.
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51. Leaving the Army with a judgment saying that his service was less than honorable caused Mr. Kennedy serious psychological damage at a time when he was already struggling with severe mental health issues. It has taken him years to come to terms with his General discharge, and he has begun discussing it outside of his family and close Army friends only recently.
52. As a result of his General discharge, Mr. Kennedy is ineligible for education benefits under the GI Bill, 38 U.S.C. §§ 3301–27. He paid for his first semester of college out of pocket.
53. While Mr. Kennedy was eventually able to access some VA vocational rehabilitation benefits to help pay for the rest of college, his General discharge reduced the amount of benefits available, forcing him to work full time while pursuing his degree. The difference between the VA benefits he received and the GI benefits he would have been eligible for with an Honorable discharge is approximately $75,000.
54. In addition, because of his discharge status, Mr. Kennedy was ineligible for state benefits such as property tax exemptions and many non-profit opportunities and scholarships that are open only to veterans with Honorable discharges.
55. After Mr. Kennedy’s discharge, he continued to struggle with depression and was ultimately diagnosed with PTSD by both the VA and private clinicians.
56. VA clinicians described Mr. Kennedy as suffering from numerous PTSD symptoms, including depression, panic attacks in crowds, foreboding feelings and anxiety, sleep disturbances, and intrusive thoughts about incidents he experienced.
57. The VA rated him 50 percent disabled due to his service-connected PTSD.
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58. Mr. Kennedy described to his treating therapist that he continues to deal with “intrusive thoughts” of the disfigured bodies of the people that he and his unit killed, as well as images of the faces and mangled bodies of insurgents who tried to kill his unit with suicide bombs.
59. According to Mr. Kennedy’s treating therapist, he experiences survivor’s guilt, which initially caused him to minimize and avoid his PTSD symptoms.
60. Mr. Kennedy has been in therapy for six years and continues to receive treatment for PTSD through the VA and private providers. He still struggles with hypervigilance, survivor’s guilt, and depression. His survivor’s guilt and depression are closely tied to his discharge status and the trauma of having his identity as a soldier abruptly stripped away.
61. Since receiving treatment, Mr. Kennedy has returned to demonstrating the character and excellence that defined much of his service in the Army.
62. In May 2012, Mr. Kennedy received a Bachelor of Science degree from the University of Massachusetts Boston, which he earned while working full time.
63. Following graduation, Mr. Kennedy began graduate work at a highly selective program in Biophysical Chemistry at New York University. He passed his qualifying exam with distinction and expects to earn his Ph.D. and publish two research papers in 2017.
64. Mr. Kennedy legally married his wife before his deployment in early 2007. Their wedding ceremony was performed in May 2009, and they have a daughter, born in 2013, and a son, born in 2016.
65. Mr. Kennedy first applied for a records review by the ADRB in November 2010. The Board rejected his application.
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66. On February 18, 2015, Mr. Kennedy renewed his application, this time requesting a personal appearance.
67. Despite Mr. Kennedy presenting documentation to the Board of his diagnoses of PTSD from the VA, his treating therapist, and a psychologist, in October 2015, the Board denied his application again, concluding only that Mr. Kennedy was “diagnosed with a depressive disorder not otherwise specified.” Ex. 2, ADRB Decision No. AR0150004987, Oct. 19, 2015 (“Kennedy ADRB Decision”).
68. In its rejection of Mr. Kennedy’s application, the ADRB did not mention or follow the binding instructions regarding PTSD cases issued in 2014 by then-Secretary of Defense Chuck Hagel. See id.; Ex. 1, Hagel Memo.
69. In fact, the ADRB cited no other past decisions to explain why it mentioned or applied the Hagel Memo in those cases but not in Mr. Kennedy’s, nor did it distinguish Mr. Kennedy’s case from other, similar cases where discharge upgrades were granted. Ex. 2, Kennedy ADRB Decision.
70. The ADRB decision also did not respond to several issues raised by Mr. Kennedy, including that his service was otherwise exemplary, that family and personal problems resulting from the denial of leave to attend his wedding affected his ability to serve satisfactorily, and that he was not properly diagnosed with PTSD by the Army in part because his survivor’s guilt caused him to minimize and avoid his PTSD symptoms.
71. Additionally, the ADRB decision failed to explain why the Board considered the Army mental health evaluations more persuasive than the psychologist evaluation, therapist evaluation, and VA decision submitted by Mr. Kennedy, all of which established that he suffered
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from PTSD at the time of the actions that led to his discharge and that his decision to go AWOL was a direct result of his PTSD and depression.
72. In rejecting Mr. Kennedy’s discharge upgrade application without following the binding instructions of the Hagel Memo, the ADRB deprived Mr. Kennedy of any meaningful opportunity to refute his discharge status and reason for separation as inaccurate and therefore falsely stigmatizing characterizations of the nature of his service.
73. Despite its obligations under the Federal Records Act and the APA, the Defendant, in its Motion to Dismiss or Remand the original Complaint, has alleged that the Army has “misplaced” four of Mr. Kennedy’s records, which it alleges “might be significant.” Gov’t’s Mem. of Law in Support of Its Mot. to Dismiss, ECF No. 10-1, p. 19, 19 n.8; see 5 U.S.C § 552a(e)(5); 44 U.S.C. §§ 3101, 3301.
Allegations as to Class Representative Alicia Carson 74. Alicia Joy Carson was born in 1988 and grew up in Southington, Connecticut. She now lives in Anchorage, Alaska, where she studies natural sciences at the University of Alaska Anchorage. 75. Both Ms. Carson’s grandmother and grandfather volunteered and became officers in the U.S. Army in WWII. 76. After high school, Ms. Carson studied environmental science at Naugatuck Valley Community College for two years. 77. Ms. Carson joined the National Guard, Fox Company, of the 186 Brigade Support Battalion (“BSB”) in Southington, Connecticut, on December 25, 2008, when she was 20 years old. She felt she owed it to her grandparents and her country to serve.
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78. Ms. Carson completed basic training in Ft. Jackson at the end of May 2009 and then attended Advanced Individual Training at Ft. Leonard Wood, Missouri.
79. Ms. Carson trained as a truck driver because she wanted to be deployed, and she knew that truck drivers were among the first group to be deployed.
80. Ms. Carson attended predeployment training at Camp Atterbury, Indiana, and then at Ft. Polk, Louisiana. During training, Ms. Carson outscored her entire battalion in convoy operations drills and convoy defense scenarios.
81. In early 2010, Ms. Carson was deployed to Afghanistan. 82. Ms. Carson’s unit was responsible for transporting supplies to the entire battalion and regularly traveled to five different forward operating bases to deliver supplies. 83. She was serving as an Assistant Gunner when she experienced her first attack. She successfully defended the unit alongside her team, and as a result there were no fatalities. 84. Ms. Carson was an Assistant Gunner for only four or five months before she was promoted to the position of Gunner. In this position she was responsible for the safety and security of her vehicle and for providing backup support to the other four vehicles in her convoy. 85. Based on her performance, other units sought out Ms. Carson for their teams. When a Special Forces unit requested a female soldier for their team, Captain Kelleher recommended Ms. Carson for additional training with the unit in covert operations. 86. Ms. Carson was the only woman in her Special Forces unit. 87. As part of her Special Forces unit, Ms. Carson participated in direct contact with the enemy. In fewer than 300 days, Ms. Carson engaged in over 100 missions. 88. In late 2010, Ms. Carson returned from her nine-month deployment.
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89. Upon her return, she informed Captain Kelleher that she was experiencing PTSD. Captain Kelleher referred her to a licensed professional counselor from the Department of Defense, Ms. Kathleen Saucier, for treatment.
90. Ms. Saucier spoke to Ms. Carson over the phone and referred Ms. Carson to services at the VA and the Hartford Vet Center.
91. Soon after, Ms. Carson missed a drill because of back pain incurred during her deployment. She provided a doctor’s note and was excused for the absence.
92. Ms. Carson continued to report to weekend drills and even volunteered for extra duties such as recruitment and promotional trips despite her constant back pain.
93. During this time, Ms. Carson suffered from various severe PTSD-related symptoms, such as nightmares, loss of consciousness, loss of memory, trouble sleeping, irritability, and feelings of being dazed and confused.
94. In March 2012, a VA psychiatrist diagnosed Ms. Carson with PTSD and traumatic brain injury (“TBI”).
95. At about the same time, Captain Peterson replaced Captain Kelleher as Ms. Carson’s commanding officer.
96. Later in March 2012, Ms. Carson began experiencing photosensitivity, a serious vision problem widely recognized as a symptom of TBI.
97. Ms. Carson notified the Army that she was suffering from medical issues that affected her ability to perform her duties.
98. An optometrist determined that Ms. Carson suffered from “photosensitivity as a direct effect of PTSD and TBI.”
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99. On or around March 26, 2012, Ms. Carson notified the National Guard of her PTSD for a second time when she requested permission to wear sunglasses during drills.
100. Shortly after her request to wear sunglasses during drills, Ms. Carson called Captain Peterson and reported that she would not be able to attend her March 2012 drill.
101. The severe PTSD-related symptoms persisted, and Ms. Carson again called Captain Peterson to report that she would also not be able to attend her April 2012 drill.
102. On or around April 16, 2012, Ms. Carson faxed a medical note to her unit in Southington, Connecticut, excusing her from March, April, and May 2012 drills because she was being trialed on new medication.
103. In early May 2012, Ms. Carson received a message from Captain Peterson. She returned his call later that day, at which point Captain Peterson told her that it would be “in her best interest” to report to Camp Niantic that same day for a Post-Deployment Health Reassessment (“PDHRA”).
104. When Ms. Carson went to put on her uniform to report to Camp Niantic as ordered, all she could do was sit and stare at it. She began experiencing a panic attack and realized she would not be able to leave the house.
105. Ms. Carson called Captain Peterson and notified him that she would not be able to make it to Camp Niantic.
106. On May 7, 2012, Ms. Carson received three notices of letters requiring her signature. Upon retrieving the letters, Ms. Carson was shocked to discover that she had been listed as AWOL for her March, April, and May 2012 drills, contrary to her belief that she had been medically excused.
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107. Army procedures require that these notices be sent after each AWOL to give Ms. Carson an opportunity to correct any errors. Instead, the Connecticut National Guard composed and sent them all on the same day.
108. Ms. Carson called her Readiness NCO, Sergeant Dupris, and was told by phone that the National Guard had discharged her. Sergeant Dupris ordered her to turn in her uniform and equipment.
109. Over the next several months, Ms. Carson worked to correct the situation because she did not believe the discharge was appropriate due to her excused absences.
110. She contacted her unit Inspector General and Brigadier General Dan McHale to discuss her discharge.
111. On or about June 7, 2012, Ms. Carson spoke with Sergeant Dupris, Colonel Evon, and Brigadier General McHale at a round-table meeting. At the meeting, Ms. Carson was told that her discharge would be Honorable and that it would be reviewed as a possible medical discharge based on her service-related re-integration issues—specifically, her PTSD and TBI.
112. After the meeting, Ms. Carson attempted to contact the committee members several times. She left several emails and voice messages for the members and received no responses.
113. Ms. Carson called her unit for her discharge paperwork only to find out that she had received a General discharge with a reason for separation of “Unsatisfactory Participation.” The National Guard also sent her an $8,888.89 bill demanding she pay back her enlistment bonus and told Ms. Carson she would not be given access to the GI Bill and would be denied the honor of being buried in Arlington National Cemetery.
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114. Ms. Carson obtained pro bono representation in 2015 to assist with her application to the ADRB for a discharge upgrade.
115. Ms. Carson submitted a paper application for a discharge upgrade in April 2015, seeking a discharge status of Honorable and a reason for separation of “Other designated physical or mental conditions.”
116. The ADRB denied Ms. Carson’s application for a discharge upgrade on October 2, 2015, without mentioning or applying the Hagel Memo’s binding instructions. Ex. 3, ADRB Decision No. AR20150007237, Sept. 25, 2015 (“Carson ADRB Decision”).
117. The ADRB did not cite any past decisions to explain why it referenced the Hagel Memo in those cases but not Ms. Carson’s. Ex. 3, Carson ADRB Decision.
118. The ADRB decision stated, in part, that “[t]he fact the Veterans Administration [sic] has granted the applicant service connection for medical conditions the applicant suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of her discharge processing.” Ex. 3, Carson ADRB Decision.
119. The ADRB dismissed the contention that Ms. Carson’s absences had been medically excused, denied that the late notices were procedural violations, and stated that “the applicant’s record is void of the specific facts and circumstances concerning the events which led to her discharge” and that “[b]arring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met.” Ex. 3, Carson ADRB Decision.
120. Even though Ms. Carson had requested her full service records from the Army and National Guard prior to her application, the ADRB denied her application because of a lack of “specific facts and circumstances concerning the events surrounding her discharge,” which
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would have been contained in a “separation packet” that should have been available in Ms. Carson’s official file and which the Army had an obligation to maintain.
Allegations as to the Class Generally 121. Since 2001, more than 2.5 million U.S. military personnel have served on active duty in Iraq and Afghanistan. Over half have been deployed more than once. 122. In that time, approximately thirteen percent of all service members have left the military with less-than-Honorable discharges. 123. These hundreds of thousands of veterans with less-than-Honorable discharges are generally ineligible for numerous benefits that their service has otherwise earned. If given a General discharge, veterans are categorically denied GI Bill education benefits and civil service retirement credits. Veterans who are discharged under Other-than-Honorable conditions are generally denied service-connected disability compensation, unemployment compensation, a military burial, benefits for surviving family members, and many other benefits. 124. Without these benefits, veterans are unable to access the health care they need, are forced to pay out of pocket for the educational benefits they seek, and are left largely without the support vital to ensuring a successful transition to civilian life. 125. Additionally, when veterans are discharged under less-than-Honorable conditions, the Army occasionally seeks to claw back or recoup their signing bonuses. 126. Furthermore, employers regularly request discharged service members’ DD-214s, which include veterans’ discharge statuses and reasons for separation, when evaluating them for possible employment. 127. A less-than-Honorable discharge imposes a stigma that casts doubt on a veteran’s integrity and ability to perform as an employee.
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128. Derogatory narrative reasons for separation can impose a similar or additional stigma on discharged veterans.
129. Many veterans who served on active duty and received less-than-Honorable discharges had developed PTSD and/or related mental health conditions during their service, were not diagnosed at the time, and were discharged for mental health-related misconduct.
130. Mental health issues and diagnoses have their own pervasive societal stigma, which is widely acknowledged and which often deters individuals from seeking the help they need. This stigma is no less acute within the military.
131. PTSD is a psychiatric disorder that can result from experiencing, witnessing, or confronting a traumatic event. Events that lead to PTSD are frequently life-threatening. PTSD is the most prevalent mental disorder arising from combat experience. Its symptoms include flashbacks or nightmares of the traumatic event; avoidance of anything associated with the trauma; and increased arousal, often manifesting in difficulty concentrating and irritability.
132. According to the VA, 11 percent of Afghanistan veterans and 20 percent of Iraq veterans suffer from PTSD. Among veterans of the Gulf War, 10 percent have PTSD, and for Vietnam veterans the number is 31 percent.
133. Investigations have revealed that between 2009 and 2015, the Army discharged 22,000 soldiers with less-than-Honorable characterizations for “misconduct” after they were diagnosed with mental health issues following their deployment to Iraq and Afghanistan.
134. The Army discharged under the same less-than-Honorable conditions many more veterans who had mental health issues, such as PTSD, that went undiagnosed.
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135. Saddled with these stigmatizing discharges, along with their mental health conditions, nearly all of these veterans are unable to obtain the disability, educational, and other benefits to which their service otherwise entitles them.
136. The ADRB regularly exercises its power to upgrade the discharge status of a former service member. 10 U.S.C. § 1553(a) (2012); 32 C.F.R. § 70.9 (1978).
137. But in contrast to the equitable purpose for which the ADRB was established, for decades the military has systematically denied discharge upgrade applications involving evidence of PTSD attributable to military service.
138. In 2014, Vietnam veterans filed suit in this Court challenging the military’s categorical refusal to seriously consider the effects of PTSD and related mental health conditions as related to service members’ discharge statuses. See Monk v. Mabus, No. 3:14-cv-00260-WWE (D.Conn. filed Mar. 3, 2014). In that litigation, the plaintiffs exposed in great detail the serious misunderstandings of PTSD and other mental health issues that had been rampant in the military for decades as well as the consequences of less-than-Honorable discharges for misconduct related to undiagnosed PTSD.
139. Partially in response to the Monk v. Mabus litigation, in September 2014, thenSecretary of Defense Chuck Hagel issued binding instructions to military review boards specifying that the boards will give “special consideration” to PTSD diagnoses by the VA and “liberal consideration” to PTSD diagnoses by private medical practitioners. Ex. 1, Hagel Memo.
140. In late 2016, Congress amended 10 U.S.C. § 1553 to codify the Hagel Memo. 141. Since issuance of these binding instructions in 2014, the ADRB has recognized that the Hagel Memo applies to its adjudications.
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142. In some decisions, the ADRB explicitly lists these guidelines as having been referenced.
143. However, in a sample of 200 ADRB decisions issued in 2015, randomly selected from all 368 decisions issued by the ADRB that year and published in the ADRB’s online reading room, the ADRB cited the Hagel Memo in only 58 percent of cases involving allegations or indications of PTSD and in only 67 percent of cases involving allegations or indications of PTSD or a PTSD-related condition.
144. In the cases sampled, where the ADRB fails to cite the Hagel Memo despite allegations or indications of PTSD or PTSD-related conditions, the ADRB also does not cite past decisions to explain why it is citing the Hagel Memo in some but not all PTSD-related cases.
145. Even when the ADRB does list the Hagel Memo as a citation, the Board still frequently ignores the standards actually set out by the Hagel Memo. Not once in our sample of decisions did the Board explicitly use any of the language from the Hagel Memo (e.g., “liberal consideration,” “special consideration”) or otherwise indicate that they had applied “liberal” or “special” consideration to applicants’ circumstances.
146. Thus, despite clear instruction from Secretary Hagel that the ADRB will apply a liberal standard to considerations of veterans’ claims alleging PTSD or related conditions, in practice the ADRB follows these binding instructions only sporadically and unpredictably, and when it does purport to follow them it does so inadequately.
147. As a result, a large number of veterans with less-than-Honorable discharges and indicators of PTSD or related conditions who should receive discharge upgrades continue to fall through the cracks of the ADRB’s inconsistent decision-making process. These veterans have had nowhere to turn within the military for an adequate assessment of how their PTSD affected
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their service and their ultimate discharge, and they have had no consistent message regarding what claims they must bring to present their case.
148. The ADRB’s failure to consistently follow its own policy not only denies class members the discharge upgrades they seek, but it also effectively forecloses their chances of obtaining the health, disability, and education benefits to which their service entitles them.
149. Additionally, the stigma attached to less-than-Honorable discharges limits class members’ full participation in veteran communities and further isolates them from the support that they require. The ADRB’s failure to adjudicate their claims consistent with agency guidelines ensures that this undeserved stigma will persist indefinitely.
150. Therefore, despite Secretary Hagel’s attempt to address the decades-long crisis surrounding the military’s treatment of veterans with less-than-Honorable discharges and PTSD or PTSD-related conditions, the military—including the Board that was created to serve as a backstop ensuring the “propriety and equity” of discharge statuses—continues to fail to sufficiently address the effect of PTSD on veterans’ less-than-Honorable discharges.
151. Even after issuance of the Hagel Memo, the Army has wrongfully denied discharge upgrades to many veterans separated for PTSD-related misconduct. And despite the Hagel Memo and the 2016 amendments to 10 U.S.C. § 1553, there is substantial risk that veterans with less-than-Honorable discharges and symptoms of PTSD will be erroneously denied discharge upgrades by the ADRB in the future.
152. The ADRB’s inconsistent application of the Hagel Memo constitutes a pattern and practice of arbitrary adjudication. Alternatively, the existence of any undisclosed policy instructing the ADRB as to when it should and should not apply the Hagel Memo to applications
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by veterans alleging PTSD is a violation of applicants’ due process rights under the U.S. Constitution.
153. Additionally, the ADRB has a pattern and practice of wrongfully denying applications when the Army itself has lost or misplaced records relating to those applications.
The Proposed Class Definition 154. This is a class action seeking equitable relief under Rule 23(b)(2) of the Federal Rules of Civil Procedure for violations of the Administrative Procedure Act and the Fifth Amendment. 155. The proposed class includes all Army, Army Reserve, and Army National Guard veterans of the Iraq and Afghanistan Era—defined as the period between October 7, 2001, and the present—who: (a) were discharged with less-than-Honorable discharges (this includes General and Other-than-Honorable discharges from the Army, Army Reserve, and Army National Guard); (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 PTSDrelated conditions at the time of discharge, attributable to their military service under the Hagel Memo standards of liberal or special consideration.
The Proposed Class Satisfies the Requirements of Rule 23 156. The members of the proposed class are so numerous that joinder of all members is impracticable. In a sample of 200 ADRB decisions issued in 2015, randomly selected from all 368 decisions issued by the ADRB that year and published in their online reading room, 36.5 percent of applicants showed indications of PTSD or a related condition. In a similar sample from decisions issued in 2013, 21.3 percent of applicants showed such indications, for an overall rate of 29.0 percent.
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157. Assuming representativeness of these samples, the present class therefore includes approximately 29.0 percent of approximately 180,000 Iraq and Afghanistan Era Army veterans with General or Other than Honorable discharges, for a total of approximately 52,000 veterans, as well as all veterans discharged under similar circumstances in the future.
158. The members’ injuries derive from a unitary course of conduct by the centralized, hierarchical systems supervised and controlled by Defendant.
159. Many members of the proposed class suffer the serious physical and psychological consequences of long-term PTSD, as well as the long-term stigma associated with less-than-Honorable discharges.
160. There are questions of law and fact common to the proposed class, including, but not limited to,
a. whether Defendant, acting through the ADRB, has failed to apply consistent standards in the discharge upgrade review process when assessing how PTSD impacted class members’ abilities to perform their duties, in violation of the Fifth Amendment and the Administrative Procedure Act;
b. whether Defendant has abused his discretion and acted arbitrarily and capriciously, in a manner unauthorized by law, by refusing to give appropriate consideration to class members’ allegations that their misconduct was the result of PTSD, and therefore failing to upgrade class members’ discharge statuses, in violation of the Administrative Procedure Act; and
c. whether the class members have, as a result of improperly considered PTSD, impermissibly suffered the stigmatizing effects of less-than-Honorable discharges that Defendant has refused to upgrade.
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161. The claims of the individual Plaintiffs are typical of the claims of the proposed class members.
162. Plaintiffs and their counsel will fairly and adequately protect the interests of the proposed class.
163. Defendant, by failing to properly apply the Hagel Memo in a consistent manner to the circumstances of class members, has acted or refused to act on grounds that apply generally to the class, and therefore final injunctive relief and/or corresponding declaratory relief is appropriate respecting the class as a whole.
LEGAL CLAIMS OF THE CLASS Claim I
Violations of the Administrative Procedure Act 164. Mr. Kennedy and Ms. Carson (“Individual Plaintiffs”), on behalf of themselves and members of the proposed class, reallege and incorporate herein by reference as though fully set forth each and every allegation contained in Paragraphs 1 through 163 of this Complaint. 165. Where the rights of individuals are concerned, agencies are required to comply with their own internal rules and informal procedures. 166. By refusing to properly consider PTSD and related conditions and to consistently apply the relevant binding instructions, such as the Hagel Memo, in reviewing Plaintiffs’ and other class members’ discharge statuses upon their application, Defendant and the Board through which Defendant operates have engaged in arbitrary and capricious actions against those with PTSD attributable to military service and have made decisions unsupported by substantial evidence and contrary to law.
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167. This refusal and failure to consistently apply the Hagel Memo stigmatizes class members, interferes with their employment prospects, and bars them from the VA benefits they earned and deserve and to which they would otherwise be entitled.
168. Defendant frequently and unlawfully fails to maintain records that it professes are important to the resolution of applicants’ cases. 5 U.S.C. § 552a(e)(5).
169. Defendant’s foregoing conduct violates the Administrative Procedure Act. Claim II
Violation of the Fifth Amendment to the United States Constitution 170. Individual Plaintiffs, on behalf of themselves and members of the proposed class, reallege and incorporate herein by reference as though fully set forth each and every allegation contained in Paragraphs 1 through 163 of this Complaint. 171. The protections of the Due Process Clause of the Fifth Amendment of the U.S. Constitution require that an administrative agency provide notice and an opportunity to be heard when interfering with a liberty or property interest and that it conduct adjudications in a fair and orderly manner. 172. Defendant, acting in his official capacity, has refused to employ consistent standards in assessing the impact of Individual Plaintiffs’ and other class members’ PTSD attributable to their service on their discharge upgrade applications. 173. The due process protections of the Fifth Amendment also require that federal administrative agencies follow their own regulations and sub-regulatory guidance in conducting their adjudications. 174. Defendant, acting in his official capacity, and the ADRB, through which Defendant operates, have failed to apply their own internal binding rules and procedures,
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including the Hagel Memo and DoD Instruction 1332.28 to address all of the issues raised, in reviewing Individual Plaintiffs’ and other class members’ discharge statuses upon their applications.
175. This has resulted in Defendant’s haphazard and baseless denials of discharge upgrade applications, or, in the alternative, denials on the basis of a policy not disclosed and therefore against which Plaintiffs were not given a meaningful opportunity to defend themselves. In either case, there is a high and pervasive risk that veterans with less-than-Honorable discharges and symptoms of PTSD will suffer permanent damage to their reputation due to inaccurate, falsely stigmatizing characterizations of their service.
176. In addition to stigmatizing class members, these denials interfere with their employment prospects by disqualifying them for veterans-preference hiring and bar them from the VA benefits they earned and deserve and to which they are otherwise entitled.
177. Defendant frequently and unlawfully fails to maintain records important to the adjudication of individuals’ claims concerning property and liberty interests, denying them a meaningful opportunity to be heard and judicial review of its decisions.
178. Defendant and the ADRB through which Defendant operates have unconstitutionally infringed upon Plaintiffs’ property and liberty rights, protected by the Due Process Clause of the Fifth Amendment.
179. The Defendant’s foregoing conduct violates the Due Process Clause of the Fifth Amendment of the U.S. Constitution.
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LEGAL CLAIMS OF INDIVIDUAL PLAINTIFFS Claim III
Administrative Procedure Act 180. Individual Plaintiffs reallege and incorporate herein by reference as though fully set forth each and every allegation contained in Paragraphs 1 through 163 of this Complaint. 181. Defendant’s denial of Individual Plaintiffs’ applications for discharge upgrades is a final agency action that is arbitrary, capricious, and an abuse of discretion, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), because Defendant failed to give “special consideration” to the VA diagnoses of Individual Plaintiffs and to give “liberal consideration” to Mr. Kennedy’s diagnoses by private practitioners, all as directed by the Hagel Memo. 182. Defendant failed to consider important evidence that demonstrated that Individual Plaintiffs’ PTSD existed at the time of their discharges and that their PTSD mitigated the misconduct that led to their discharges. 183. Defendant failed to consider important evidence that demonstrated that Ms. Carson’s PTSD existed at the time of her discharge, that she was medically excused from drill because of her PTSD, and that her PTSD mitigated the misconduct that led to her discharge. 184. Defendant failed to follow its own rules by not applying the Hagel Memo to the applications of Individual Plaintiffs. 185. Defendant failed to follow its own rules by not responding to all the issues raised in Individual Plaintiffs’ discharge upgrade applications. 186. Defendant unlawfully failed to maintain records that it professes are important to the resolution of Individual Plaintiffs’ cases. 5 U.S.C. § 552a(e)(5). 187. Defendant failed to provide a decision demonstrating a rational connection between the evidence presented and the facts found, which makes the ADRB decisions on the
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applications of Individual Plaintiffs arbitrary, capricious, and an abuse of discretion, in violation of the Administrative Procedure Act. 5 U.S.C. § 706(2)(A).
Claim IV Fifth Amendment to the U.S. Constitution 188. Individual Plaintiffs reallege and incorporate herein by reference as though fully set forth each and every allegation contained in Paragraphs 1 through 163 of this Complaint. 189. The Due Process Clause of the Fifth Amendment to the U.S. Constitution requires that administrative agencies provide notice and an opportunity to be heard when interfering with an individual’s liberty or property interest. 190. When false stigma and reputational damage are involved, the “opportunity to be heard” involves an opportunity to refute the charges. 191. Defendant did not provide Individual Plaintiffs with notice or a meaningful opportunity to be heard because the ADRB either negligently failed to apply its own binding instructions (i.e., the Hagel Memo) or, in the alternative, followed undisclosed internal policy in choosing not to follow its own instructions in their cases, depriving Individual Plaintiffs of the chance to account for the role of their PTSD in their misconduct. This has caused continuing stigma for Individual Plaintiffs and barred them from the VA benefits they earned and to which they are otherwise entitled. 192. The due process protections of the Fifth Amendment to the U.S. Constitution require that federal administrative agencies conduct adjudications in a fair and orderly manner. 193. Defendant did not conduct fair adjudications of Individual Plaintiffs’ discharge upgrade applications because the ADRB failed to apply the Hagel Memo to their claims.
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194. Defendant also failed to conduct fair adjudications of Individual Plaintiffs’ discharge upgrade applications because the ADRB failed to provide them with a decisional document articulating the reasons for the denial of their applications based on the evidence presented.
195. The due process protections of the Fifth Amendment also require that federal administrative agencies follow their own regulations and sub-regulatory guidance in conducting their adjudications.
196. Defendant failed to follow its own rules by failing to apply the Hagel Memo to Individual Plaintiffs’ applications.
197. Defendant failed to follow its own rules by not responding to all the issues raised in Individual Plaintiffs’ applications.
198. Defendant failed to maintain records important to the adjudication of Individual Plaintiffs’ claims concerning their property and liberty interests, denying them a meaningful opportunity to be heard and judicial review of its decisions.
199. Defendant also failed to follow its own rules by not explaining why it considered the Army’s determination that Mr. Kennedy did not suffer from PTSD more persuasive than the submitted evidence that Mr. Kennedy did suffer from PTSD.
200. Defendant’s decision deprived Ms. Carson of property in that it failed to correct her improper discharge, and thus she is still being billed for her enlistment bonus, which she earned through her exemplary service.
201. The Defendant’s foregoing conduct violates the Due Process Clause of the Fifth Amendment of the U.S. Constitution.
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Claim V Little Tucker Act 202. Individual Plaintiffs reallege and incorporate herein by reference as though fully set forth each and every allegation contained in Paragraphs 1 through 163 of this Complaint. 203. Claims for military pay and allowances under $10,000 are actionable under the Little Tucker Act, 28 U.S.C § 1346(a)(2). 204. Under 37 U.S.C. § 303(a) and 37 U.S.C. § 308, the Secretary may not recoup an enlistment bonus unless the service member fails to satisfy eligibility requirements. 205. Defendant’s letters claim that they are recouping the bonus because Ms. Carson “has failed two consecutive [Army Physical Fitness Tests] during the contractual agreement and has unsatisfactory participation per AR 135-91.” 206. Ms. Carson did not exhibit unsatisfactory participation per AR 135-91 because her absences should have been considered medically excused due to her doctor’s notes for her PTSD and TBI. 207. Defendant’s attempted recoupment of $8,888.89 of Ms. Carson’s enlistment bonus therefore violates its statutory obligation to pay her and constitutes an illegal exaction. 208. Defendant’s failure to correct Ms. Carson’s discharge status to reflect her honorable service and to recognize her PTSD as a mitigating factor in her misconduct does not justify Defendant’s attempted recoupment. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court: (1) Grant all appropriate and equitable relief to address past injury and to restrain future injury of Plaintiffs and members of the proposed class by Defendant;
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(2) Direct, by issuance of an injunction, measures sufficient to ensure that Defendant employs consistent standards in considering the effects of class members’ PTSD when determining whether to upgrade their discharge statuses; (3) Direct, by issuance of injunction, that the discharge statuses of Individual Plaintiffs be upgraded to Honorable and that the Army be prevented from recouping any part of Ms. Carson’s enlistment bonus; (4) Award attorneys’ fees and costs to Plaintiffs; and (5) Grant any other and further relief that the Court deems just and proper.

Dated: April 17, 2017 New Haven, Connecticut

Respectfully submitted,

By: /s/ Michael J. Wishnie

Margaret Kuzma, Supervising Attorney†
Connecticut Veterans Legal Center 114 Boston Post Rd. West Haven, CT 06516 Tel: (203) 794-4291 mkuzma@c tveteranslegal.org

Mario Gazzola, Law Student Intern*
Jordan R. Goldberg, Law Student Intern* Catherine E. McCarthy, Law Student Intern* Jonathan Petkun, Law Student Intern* Helen E. White, Law Student Intern* Aaron Wenzloff, Supervising Attorney, ct28616 Michael J. Wishnie, Supervising Attorney, ct27221 Veterans Legal Services Clinic Jerome N. Frank Legal Services Organization Yale Law School P.O. Box 209090 New Haven, CT 06520-9090 Tel: (203) 432-4800 michael.wishnie@ylsclinics.org

Counsel for Plaintiffs

† Motion for admission to the District of Connecticut forthcoming. * Motion for law student intern appearance forthcoming.
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CERTIFICATE OF SERVICE I hereby certify that on April 17, 2017, a copy of the foregoing Amended Complaint was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.
/s/ Michael J. Wishnie Michael J. Wishnie, ct27221 P.O. Box 209090 New Haven, CT 06520-9090 Tel.: (203) 432-4800 Fax: (203) 432-1426 michael.wishnie@ylsclinics.org

 
 Case 3:16-cv-02010-WWE Document 29 Filed 09/19/17 Page 1 of 5

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

STEPHEN KENNEDY et al.,

on behalf of themselves and all

others similarly situated,

3:16cv2010 (WWE)

Plaintiffs,

v.

ROBERT SPEER, Acting Secretary of the Army,
Defendant.

ORDER ON DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, VOLUNTARY REMAND

On behalf of themselves and all others similarly situated, plaintiffs Stephen

Kennedy and Alicia Carson challenge decisions by the Army Discharge Review Board

(“ADRB”) pursuant to the Administrative Procedure Act (“APA”) and the Due Process

Clause of the Fifth Amendment to the United States Constitution. Plaintiff Carson also

asserts a claim under the Little Tucker Act that seeks an order preventing the Army from

recouping her enlistment bonus.

Plaintiffs were involuntarily separated from the Army, and they now seek

discharge upgrades, arguing that the ADRB failed to consider binding instructions

issued by then-Secretary of the Army Chuck Hagel (“Hagel Memo”) to afford liberal

consideration to Post-Traumatic Stress Disorder (“PTSD”) diagnoses.

Defendants seek dismissal of the claims on the basis of (1) failure to exhaust

administrative remedies by seeking review from the Army Board for Correction of

Military Records (“ABCMR”); (2) lack of justiciable claims; (3) lack of cognizable

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property or liberty interests in their discharge upgrades; and (4) failure to challenge discrete agency action reviewable under the APA.
Alternatively, defendant requests that this Court remand the claims to allow the Army to reconsider or explain its prior decision and to provide for a full administrative record.
Courts retain discretion to remand an agency decision when an agency has raised “substantial and legitimate” concerns that it should reconsider the prior decision. American Forest Resource Council v. Ashe, 946 F. Supp. 2d 1, 41 (D.D.C. 2013). “In general, a voluntary remand request made in response to a party's APA challenge may be granted only when the agency intends to take further action with respect to the original agency decision on review.” Limnia, Inc. v. United States Dept. of Energy, 857 F.3d 379, 386 (D.C. Cir. 2017) (agency need not confess to error or impropriety but should “profess intention to reconsider, re-review, or modify the original agency decision that is the subject of the legal challenge.”). Requests for voluntary remand to cure mistakes are commonly granted. American Forest Resource Council, 946 F. Supp. 2d at 43.
Here, defendant asserts that remand for reconsideration of the decisions is appropriate because defendant’s review of the relevant Army Review Board Agency (“ARBA”) records revealed (1) that four documents submitted by plaintiff Kennedy in his 2015 application were missing;1 (2) it is unclear whether plaintiff Carson’s entire service
1 Due to the ARBA inability to find four documents submitted with plaintiff Kennedy’s
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record had been considered in the evaluation of her application merits; and (3) it is unclear whether the ADRB decisions relative to plaintiffs’ applications applied the guidance of the Hagel Memo.
Defendant proposes that its reconsideration of the decision on plaintiffs’ discharge status would allow for plaintiffs to submit new applications, in which they could raise any new arguments and provide additional evidence. Defendant anticipates that the Army would take approximately 180 days to reconsider plaintiffs’ cases; and it suggests that the parties confer with respect to the need for further litigation within 30 days after final action by the Army.
Plaintiff objects to the defendant’s voluntary remand on several grounds. Plaintiff maintains that defendant has failed to articulate “substantial and legitimate concerns” in support of its request for remand. Plaintiff asserts that the inability to locate four documents and the lack of clarity regarding the decisions underlying considerations are not relevant to the instant litigation asserting violation of the APA and the Fifth Amendment Due Process Clause. However, both plaintiffs have alleged that defendant failed to adhere to the instructions relevant to service-members’ PTSD and related mental health conditions as set forth in the Hagel Memo.
The Hagel Memo requires “liberal consideration” of PTSD diagnoses by civilian providers, “special consideration” of PTSD diagnoses by Veterans Administration
application, it cannot certify the administrative record relevant to the decision on his application.
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providers. The Hagel Memo states: “In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service.” In August 2017, the Department of Defense issued new guidance on adjudication of PTSD and other mental health conditions, Traumatic Brain Injury; sexual assault; or sexual harassment.
Remand would afford a reconsideration that should clarify the bases for the decisions and provide for a complete administrative record, both of which would facilitate this Court’s judicial review of the matter. In this instance, defendant has questioned whether the ADRB’s decisions represent a full and proper consideration of the applications. See SKF USA Inc. v. United States, 254 F.3d 1022, 1028 (Fed. Cir. 2001) (noting that court has discretion to grant a voluntary remand where agency seeks to reconsider its previous position).
Plaintiff argues for denial of defendant’s request for voluntary remand because defendant has indicated that it would review new applications with new arguments and additional evidence. In Limnia, the D.C. Court of Appeals held that the district court had erred by granting a request for voluntary remand that was conditional upon plaintiff’s submission of a new application, which constituted a “remand” in “name only.” 857 F.3d at 388. Although the instant defendant has professed its intent to reconsider its prior decisions, the Court clarifies that it will a grant a voluntary remand only to the
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extent that defendant will revisit the original applications that are the subject of this litigation. Defendant may request that plaintiffs supplement the existing record with the documents that cannot be located or that would clarify the existing record.
Plaintiff maintains that a remand to cure the named plaintiffs’ discharge status will not affect the “systemic issues” relevant to the adjudications of similarly-situated veterans who served in Iraq and Afghanistan. However, the remand will provide the most efficient means for the named plaintiffs to obtain revised decisions regarding their discharge applications. The remand will also serve the interest of judicial economy by providing a full administrative record for the Court to assess the merits of plaintiffs’ claims and request for class certification.
Accordingly, defendants’ request for voluntary remand will be granted. CONCLUSION
For the foregoing reasons, the Motion to Dismiss or, In the Alternative, Voluntary Remand of the plaintiffs’ amended complaint [doc. #16] is DENIED without prejudice in part and GRANTED in part. The Court DENIES the Motion to Dismiss without prejudice; but the Court GRANTS the Motion for Voluntary Remand. The Court will stay the action pending the reconsideration of the plaintiffs’ applications. The parties should submit a status report within 90 days of this ruling’s filing date.
Dated this __19th__ day of September, 2017, at Bridgeport, Connecticut. /s/Warren W. Eginton________ WARREN W. EGINTON SENIOR U.S. DISTRICT JUDGE
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 Case 3:16-cv-02010-WWE Document 75 Filed 01/09/19 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

STEPHEN M. KENNEDY, and ALICIA J. CARSON,
individually and on behalf of all similarly situated persons,

16cv2010 (WWE)

Plaintiffs,

v.

MARK ESPER, Secretary of the Army,

Defendant.

RULING ON MOTION TO DISMISS 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. This Court has certified a class that seeks an 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 post-traumatic stress disorder (PTSD) and similar mental health conditions, and records indicating symptoms of those conditions. Defendant has filed a motion to dismiss on the basis of mootness, failure to identify deprivation of an interest protected by due process, and failure to challenge an agency action reviewable under the APA. For the following
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reasons, the motion to dismiss will be denied. BACKGROUND
The Court incorporates herein the background included in its ruling granting class certification dated December 21, 2018.
DISCUSSION The function of a motion to dismiss is “merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” Ryder Energy Distrib. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). When deciding a motion to dismiss, the Court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the pleader. Hishon v. King, 467 U.S. 69, 73 (1984). The complaint or counterclaim must contain the grounds upon which the claim rests through factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The pleader is obliged to amplify a claim with some factual allegations to allow the court to draw the reasonable inference that the defendant is liable for the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In its ruling on the motion for class certification, the Court certified a class comprising 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
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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. In that ruling, the Court found that this Court has jurisdiction, that the class action claims were not moot, and that plaintiff’s claims were appropriate for judicial review after a final agency decision from the ADRB. The Court will not revisit arguments and adheres to its rulings dated December 21, 2018.
CONCLUSION For the foregoing reasons, the motion to dismiss [Doc. #50] is DENIED.
/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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 Case 3:16-cv-02010-CSH Document 198 Filed 11/17/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHEN M. KENNEDY and ALICIA J. CARSON, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
RYAN D. McCARTHY, Secretary of the Army,
Defendant.

No. 3:16-cv-2010-CSH November 17, 2020

JOINT MOTION FOR PRELIMINARY SETTLEMENT APPROVAL Pursuant to Rule 23(e) of the Federal Rule of Civil Procedure (the “Rules”), the parties jointly move for Preliminary Approval of the Settlement Agreement (the “Settlement”) and Class Notice submitted herewith. Plaintiffs Steve Kennedy and Alicia Carson brought suit on behalf of themselves and all others similarly situated, challenging the treatment of former members of the U.S. Army separated with a less-than-fully-honorable discharge status and who experienced post-traumatic stress disorder, traumatic brain injury, military sexual assault, or other mental health conditions. On December 21, 2018, the Court certified a proposed class (the “Class”). See ECF No. 74. Subsequently, the Court denied a motion to dismiss, ECF No. 75, and ordered production of the administrative record. After motion practice, the Court also allowed discovery of the Army Discharge Review Board’s internal policies, procedures, and practices, including a deposition pursuant to Rule 30(b)(6) of Colonel Michael G. Pratt, former Director of the Military Review
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Boards, and the production of records from 15,393 decisional documents. The matter was then referred for settlement to Magistrate Judge Spector, who conducted at least twenty joint or individual conferences with the parties before they reached an agreement to resolve this litigation.
Applying the principles of Rule 23(e) to this case, the parties request that the Court grant Preliminary Approval of the Settlement. The Settlement is the product of complex and extended negotiations, and the parties believe that the Settlement secures significant and equitable relief for Class Members and is substantively fair, reasonable, and adequate. Further explanation is set forth in Plaintiffs’ concurrently submitted Memorandum in Support of the Joint Motion for Preliminary Settlement Approval.
WHEREFORE, the parties respectfully request that this court enter an order to preliminarily approve the Settlement Agreement and Class Notice and set a schedule for this matter to proceed to a hearing for final settlement approval.

Respectfully submitted,

FOR DEFENDANTS:

JOHN H. DURHAM UNITED STATES ATTORNEY
By: /s/ Natalie Elicker_____________ Natalie Nicole Elicker Assistant U.S. Attorney
Counsel for Defendant

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FOR PLAINTIFFS:
Susan J. Kohlmann, pro hac vice Jeremy M. Creelan, pro hac vice Jacob L. Tracer, pro hac vice Ravi Ramanathan, pro hac vice Jenner & Block LLP 919 Third Avenue New York, NY 10022-3908 Tel: (212) 891-1678 JCreelan@jenner.com

By: /s/ Michael Wishnie____________
Joshua P. Britt, Law Student Intern Rebecca C. Brooks, Law Student Intern Andrew C. DeGuglielmo, Law Student Intern Deepankar Gagneja, Law Student Intern Renée A. Burbank, ct30669 Dana Montalto, ct30941 Michael J. Wishnie, ct27221 Veterans Legal Services Clinic Jerome N. Frank Legal Services Organization Yale Law School P.O. Box 209090 New Haven, CT 06520-9090 Tel: (203) 432-4800 michael.wishnie@ylsclinics.org
Counsel for Plaintiffs

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Case 3:16-cv-02010-CSH Document 198-1 Filed 11/17/20 Page 1 of 39

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHEN M. KENNEDY and ALICIA J. CARSON, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
RYAN D. McCARTHY, Secretary of the Army,
Defendant.

No. 3:16-cv-2010-CSH November 17, 2020

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Case 3:16-cv-02010-CSH Document 198-1 Filed 11/17/20 Page 2 of 39
TABLE OF CONTENTS
INTRODUCTION......................................................................................................................... 1 FACTUAL BACKGROUND ....................................................................................................... 4 I. Nature Of The Claims ...................................................................................................... 4 II. Procedural History............................................................................................................ 8
A. Class Certification................................................................................................... 8 B. Discovery ................................................................................................................ 9 C. Settlement Negotiations .......................................................................................... 9 III. The Proposed Settlement................................................................................................ 10 LEGAL STANDARD ................................................................................................................. 10 ARGUMENT............................................................................................................................... 12 I. The Settlement Is The Result Of A Procedurally Fair Process .................................. 13 A. Class Counsel Provided Adequate Representation ............................................... 13
1. The Class Was Represented By Experienced And Capable Counsel ..................................................................................................... 13
2. Class Counsel Engaged In Meaningful Discovery In This Case ....................................................................................................... 14
B. The Class Representatives Possess The Same Interest And Initially Suffered The Same Injury As Other Class Members............................................ 15
C. The Settlement Was Negotiated At Arm’s Length ............................................... 16 II. The Settlement Agreement Is Substantively Fair, Reasonable, And Adequate........ 17
A. The Proposed Settlement Secures Significant Benefits For The Class ...................................................................................................................... 18 1. Reconsideration For 2011-2020 Applications .......................................... 19 2. Notice Of Reapplication Rights For 2001-2011 Applicants..................... 20 3. Revised Decisional Documents And Procedures...................................... 21 4. Universal Option For Telephonic Personal Appearance Boards ....................................................................................................... 22 5. Training..................................................................................................... 22 6. Notice For New Applications ................................................................... 23
B. The Relief Provided To The Class Is Adequate In Light Of The Costs, Risks, And Delay Of Trial And Appeal..................................................... 24 1. The Complexity Of Continued Litigation And The Benefit Of Avoiding Delay .................................................................................. 24 2. The Risks To Obtaining Relief ............................................................... 27
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Case 3:16-cv-02010-CSH Document 198-1 Filed 11/17/20 Page 3 of 39 C. The Settlement Treats Class Members Equitably Relative To Each
Other ..................................................................................................................... 28 III. The Proposed Class Notice Is Adequate ....................................................................... 30
A. The Proposed Class Notices Is Substantively Reasonable ................................... 30 B. The Proposed Distribution Method Is Reasonable ............................................... 31 PROPOSED SCHEDULE.......................................................................................................... 33 CONCLUSION ........................................................................................................................... 34
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TABLE OF AUTHORITIES
Page(s)
Cases
Aramburu v. Healthcare Financial Services, Inc., No. 02-CV-6535, 2009 WL 1086938 (E.D.N.Y. Apr. 22, 2009) ......................................15
Camp v. Pitts, 411 U.S. 138 (1973)...........................................................................................................25
Chatelain v. Prudential-Bache Sec., Inc., 805 F. Supp. 209 (S.D.N.Y. 1992) ....................................................................................14
City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000) .................... passim
Clark v. Duke University, 2019 WL 2588029 (M.D.N.C. 2019).................................................................................29
In re Global Crossing, 225 F.R.D. 436 (S.D.N.Y. 2004) .................................................................................14, 24
Handschu v. Special Services Div., 787 F.2d 828 (2d Cir. 1986)...................................................................................30, 31, 32
Hecht v. United Collection Bureau, 691 F.3d 218 (2d Cir. 2012)...............................................................................................30
Ingles v. Toro, 438 F. Supp. 2d 203 (S.D.N.Y. 2006)................................................................................16
Joel A. v. Giuliani, 218 F.3d 132 (2d Cir. 2000)...............................................................................................10
Kemp-DeLisser v. Saint Francis Hosp. & Med. Ctr., No. 15-CV-1113, 2016 WL 6542707 (D. Conn. Nov. 3, 2016) ......................10, 11, 17, 19
Lasky v. McHugh, 92 F. Supp. 3d 3 (D. Conn. 2015), aff'd, 668 F. App'x 369 (2d Cir. 2016) .......................27
Manker v. Spencer, No. 3:18-cv-00372-CSH (D. Conn.)..................................................................................15
McReynolds v. Richards Cantave, 588 F.3d 790 (2d Cir. 2009)...................................................................................30, 31, 32
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In re NASDAQ Mkt.-Makers Antitrust Litig., 187 F.R.D. 465 (S.D.N.Y. 1998) .................................................................................13, 15
Nat’l Audubon Soc. v. Hoffman, 132 F.3d 7 (2d Cir. 1997)...................................................................................................25
In re Payment Card Interchange Fee, 330 F.R.D. 11 (E.D.N.Y. 2019) .......................................................................12, 13, 15, 17
In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, No. 05-MD-1720 (MKB)(JO), 2019 WL 6875422019 (E.D.N.Y. Dec. 16, 2019) ..................................................................................................28
Radcliffe v. Hernandez, 794 Fed. Appx. 605 (9th Cir. 2019)...................................................................................28
Simerlein v. Toyota Motor Corp., No. 3:17-CV-1091 (VAB), 2019 WL 2417404 (D. Conn. June 10, 2019) .......................11
In re Sturm, 2012 WL 3589610 .............................................................................................................17
Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96 (2d Cir. 2005)...............................................................................10, 11, 13, 16
Weinberger v. Kendrick, 698 F.2d 61 (2d Cir. 1982).................................................................................................14
Zink v. First Niagara Bank, N.A., 155 F. Supp. 3d 297 (W.D.N.Y. 2016) ..............................................................................32
Statutes 10 U.S.C.§ 1553.............................................................................................................1, 21, 22, 26 28 U.S.C § 2401(a) ........................................................................................................................27 Other Authorities 32 C.F.R. § 70.8 .............................................................................................................................20 32 C.F.R. § 581.3(f) .......................................................................................................................26 Fed. R. Civ. P. 23 ................................................................................................................... passim Fed. R. Civ. P. 23, 2018 Advisory Committee Notes ..............................................................11, 12 Fed. R. Civ. P. 23(e)(2)(A)-(D) .....................................................................................................11
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INTRODUCTION Since September 11th, millions of young men and women have joined the United States Army and deployed, often multiple times, to Iraq and Afghanistan to fight for our country. Hundreds of thousands of them have returned home suffering from post-traumatic stress disorder (“PTSD”) or other mental health conditions. Unjustly, the Army gave many of these soldiers lessthan-Honorable discharges because of incidents related to their mental health crises. As a result, these veterans bear a shameful stigma, suffer employment discrimination, and lose access to critical services and benefits that would help them heal their wounds and succeed in civilian life. In 1944, Congress established military review boards, including the Army Discharge Review Board (“ADRB”), to which veterans can apply to upgrade an unjust or unlawful discharge status. Congress intended that these boards act generously to correct discharge decisions that were often made in haste or under duress in the field. In the post-9/11 era, however, the ADRB failed to carry out its statutory duties and arbitrarily denied the discharge upgrade applications of countless veterans. In particular, the Army failed to account for advances in medical science that have furthered our understanding of PTSD, traumatic brain injury (“TBI”), and other mental health conditions. In recognition of these failings, Defense Department officials issued a series of memoranda and guidance, beginning in 2014 with a memo from then-Secretary of Defense Chuck Hagel (the “Hagel Memorandum”), directing that military review boards give “liberal consideration” to applications that indicate mental health conditions or experiences of Military Sexual Trauma (“MST”) may have been “potential mitigating factors” for the misconduct that resulted in a less-than-Honorable discharge. Yet in spite of the Hagel Memorandum and subsequent guidance, the ADRB failed to carry out its congressional purpose, as codified in 10

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U.S.C. § 1553 and in the Administrative Procedure Act (“APA”), or apply its own guidelines in a consistent manner.
Plaintiffs Stephen M. Kennedy and Alicia J. Carson filed the present action to right this wrong. Both Mr. Kennedy (who was deployed to Iraq) and Ms. Carson (who was deployed to Afghanistan) developed mental health conditions during their service and then received less-thanHonorable discharges because of incidents related to those conditions. Nevertheless, when they sought status upgrades, the ADRB denied their applications. They filed this action on behalf of a class to benefit not just themselves but also their many fellow Army veterans. They alleged that the ADRB’s arbitrary rejection of applications since 2001 by veterans who experienced PTSD, TBI, MST, or other mental health conditions violated the APA and the Due Process Clause of the Fifth Amendment. They further alleged that the ADRB’s haphazard application of binding guidance, such as the Hagel Memorandum, violated the APA, and that the ADRB’s pattern of denying access to records important to the adjudication of individual claims impeded the ability of individuals to seek meaningful judicial review in violation of the Due Process Clause.
On December 21, 2018, Judge Eginton certified Plaintiffs’ proposed class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure (the “Rules”). The class is composed of individuals whose discharge upgrade applications were decided between October 7, 2001, and the present, and whose applications contained a diagnosis, symptoms, or evidence of mental health conditions, TBI, or MST, but who were denied full relief by the ADRB. At the same time, Judge Eginton appointed the undersigned as class counsel and denied the Army’s motion to dismiss.
The parties then engaged in discovery and protracted arm’s-length settlement negotiations, including appearing for multiple settlement conferences before Magistrate Judge Robert M.
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Spector. As a result of that process, the parties have reached a settlement. Accordingly, they now seek the Court’s preliminary approval of their agreement.
The agreement is substantively fair and provides significant benefits to class members. Critically, the ADRB will reconsider its adverse decisions to ensure that it properly applies its legal standards, including the Hagel Memorandum and other implementing guidance. For adverse decisions issued on or after April 17, 2011, and subject to certain eligibility requirements, the ADRB will take this action automatically, without any need for applicants to do anything at all. The April 2011 date is significant because it is six years prior to when Plaintiffs filed their class action complaint, see ECF No. 11, coinciding with the statute of limitations period for APA claims. Where the ADRB issued an adverse decision between October 7, 2001, and April 16, 2011, the Army will allow veterans to reapply and will provide public and individualized notice to such veterans informing them of their right, along with referrals to legal services and medical resources. Accordingly, every class member will have the opportunity to ensure that the ADRB reconsiders his or her application applying the correct legal standard.
The agreement also includes numerous provisions to reform the ADRB’s operations on an ongoing basis. For example, it requires the Army to revise certain internal documents governing ADRB adjudications to ensure the Hagel Memorandum and subsequent guidance are applied faithfully and rigorously in future cases. The ADRB will also create a universal telephonic hearing program to make it easier for veterans to participate personally in ADRB hearings from home or another convenient location. Further, the agreement requires the Army to revise its written materials sent to future applicants to the ADRB to better inform them of their rights and provide referrals to free legal and medical services. Finally, the Army will institute annual trainings for its ADRB members that are specifically tailored to address mental health conditions.
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In sum, the settlement provides retrospective relief for class members whose discharge upgrade applications were inadequately reviewed and prospective relief to remedy procedural defects and prevent future mishandling of discharge upgrade applications. Further, the settlement streamlines and improves the process of discharge application review for thousands of class members. Finally, the Settlement eliminates the need for protracted discovery and litigation and thus makes it possible for class members to benefit more quickly.
Therefore, pursuant to Rule 23(e) and for the reasons explained more fully below, Plaintiffs request that the Court find that the settlement is fair, reasonable, and adequate, grant preliminary approval of the settlement, and approve their proposed class notice. Because this settlement resolves class members’ class claims asserted in this litigation but does not affect any class member’s right to litigate individual claims, the Court is not required to hold a fairness hearing under Rule 23(e)(2), but the Plaintiffs urge the Court to do so nevertheless.
FACTUAL BACKGROUND I. Nature Of The Claims
The experiences of the two named plaintiffs in this action demonstrate the ADRB’s failure to consistently apply its own standards. The first named plaintiff is Stephen M. Kennedy. Mr. Kennedy joined the Army in May 2006 and was deployed to Iraq from June 2007 through July 2008. Am. Compl. ¶¶ 21, 24. While deployed, Mr. Kennedy served as a Humvee turret gunner and machine gun operator. Id. ¶ 24. At first, his unit provided route clearance and security for a supply convoy in an area where improvised explosive devices (“IEDs”) were so common that convoys hit or discovered them every other week. Id. ¶ 25. Later, Mr. Kennedy’s unit was responsible for disrupting Al Qaeda supply lines and was engaged in several firefights with Al Qaeda combatants, two of which ended with an insurgent detonating a suicide vest. Id. ¶ 26. For his service,
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Mr. Kennedy received multiple military awards and medals, and he was recommended for promotion. Id. ¶¶ 27-32.
However, when Mr. Kennedy returned to the United States, he suffered from “survivor’s guilt” and depression. Id. ¶ 33. He began to self-isolate, had trouble sleeping, drank heavily, and physically harmed himself. Id. ¶ 33-35. Eventually, he began having thoughts of suicide. Id. ¶ 36. Fearing being labeled “weak,” he did not seek help at that time. Id. ¶ 39.
In March 2009, Mr. Kennedy was denied leave to attend his own wedding because he had neglected to complete certain necessary paperwork. Id. ¶¶ 40-41. Fearing that he would lose his then-fiancée, he went absent without leave (“AWOL”) to be married. Id. ¶ 42.
When he returned to his base, Mr. Kennedy was sent to see a psychologist and was diagnosed with a major depressive disorder. Id. ¶ 43. Shortly thereafter, Mr. Kennedy’s unit was scheduled to be deployed, but Mr. Kennedy chose instead to accept a discharge so he could seek mental health treatment. Id. ¶ 46. Because Mr. Kennedy had gone AWOL, his discharge status was lowered from Honorable to General. Id. ¶ 47. As a result, Mr. Kennedy received reduced rehabilitation benefits from the Department of Veterans Affairs (“VA”), was barred from education benefits under the G.I. Bill, and was ineligible for additional state benefits open only to veterans with Honorable discharges. Id. ¶¶ 52-54. He was later diagnosed by both the VA and private clinicians with PTSD. Id. ¶ 55.
In November 2010, Mr. Kennedy applied to the ADRB for a status upgrade. Id. ¶ 65. The ADRB denied his application. Id. In February 2015, after the issuance of the Hagel Memorandum, Mr. Kennedy reapplied and provided documents to the ADRB showing his PTSD diagnosis and history of treatment. Id. ¶ 67. The ADRB denied his application again. Id. The ADRB’s decision
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did not even mention the statutory requirements, nor did it mention the Hagel Memorandum and subsequent clarifying guidance. Id. ¶ 68.
The second named plaintiff in this action is Alicia J. Carson. Ms. Carson joined the Connecticut Army National Guard in 2008. Id. ¶ 77. She deployed to Afghanistan in 2010. Id. ¶ 81. She served first as an Assistant Gunner but was quickly promoted to Gunner, where she was responsible for the safety and security of one vehicle in a multi-vehicle convoy. Id. ¶ 84. In fewer than 300 days in Afghanistan, she was engaged in over 100 missions and participated in direct contact with the enemy multiple times. Id. ¶ 87.
When Ms. Carson returned from her deployment, she reported that she was experiencing PTSD and was referred for treatment. Id. ¶ 89. In March 2012, a VA psychiatrist diagnosed her with PTSD and TBI. Id. ¶ 94. Because of her symptoms, she was unable to attend National Guard drills in March, April, and May 2012. Id. ¶ 100-02. She was also unable to report for a PostDeployment Health Reassessment in May 2012 because she suffered a panic attack when she went to put on her uniform. Id. ¶ 103-05. The National Guard classified her absences as AWOLs. Id. ¶ 106. She then received a General discharge and was told by the National Guard that she would have to pay back nearly $9,000 of her enlistment bonus, would not be given access to the G.I. Bill, and eventually would be denied a burial at Arlington National Cemetery. Id. ¶ 113.
In April 2015, Ms. Carson applied to the ADRB for a status upgrade. Id. ¶ 115. The ADRB denied her application without applying or even mentioning the Hagel Memorandum. Id. ¶ 116.
Mr. Kennedy and Ms. Carson (collectively, “Class Representatives”) filed this action to address the ADRB’s systemic denial of discharge status upgrades to veterans who served during the Iraq and Afghanistan era, received less-than-Honorable discharges, and incurred service-
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connected PTSD, TBI, or other behavioral health conditions (“OBH”), or who experienced military sexual trauma (“MST”). Am. Compl., ECF No. 11.
Specifically, Class Representatives allege that the Army has engaged in arbitrary and capricious actions against veterans with PTSD and related conditions attributable to military service by failing to consistently apply relevant binding instructions and statutory requirements in reviewing class members’ discharge statuses in violation of the APA, 5 U.S.C. § 706(2)(A). Id. ¶¶ 164-69. The ADRB’s arbitrary denials stigmatize class members, interfere with their employment prospects, and bar them from VA benefits to which they would otherwise be entitled. Id. ¶¶ 123130.
Class Representatives further allege that the Army violated the Due Process Clause of the Fifth Amendment. Id. ¶¶ 170-179. First, the Army has refused to employ consistent standards in assessing the impact of veterans’ PTSD when considering discharge upgrade applications. Second, the Army failed to comply with statutory requirements and subsequent clarifying guidance in reviewing class members’ discharge upgrade applications. In addition to failing to adhere to relevant statutes and the Hagel Memorandum, the Army also neglected related guidance, such as the “Kurta Memorandum” (August 25, 2017), which directed the Army to consider specific factors when evaluating requests for discharge relief.1 As a result, the Army either denied applications without any basis or on the basis of an undisclosed policy against which class members were not given a meaningful opportunity to defend themselves.
1 The four Kurta Memorandum factors are: a. Did the veteran have a condition or experience that may excuse or mitigate the discharge? b. Did that condition exist/experience occur during military service? c. Does that condition or experience actually excuse or mitigate the discharge? d. Does that condition or experience outweigh the discharge?
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II. Procedural History A. Class Certification Class Representatives filed an amended complaint including class allegations on April 17,
2017, ECF No. 11, and moved for class certification on June 27, 2017. ECF No. 15. The Army
filed a motion to dismiss, or in the alternative, for voluntary remand on June 30, 2017. ECF No.
16. Judge Eginton granted the Army’s motion for voluntary remand on September 29, 2017. ECF
No. 29. On remand, the ADRB upgraded Mr. Kennedy’s discharge characterization to Honorable
and the National Guard, acting before the ADRB, did the same as to Ms. Carson’s. See ECF No.
47 at 2. The Army then renewed its motion to dismiss on June 4, 2018, ECF No. 50, and Class
Representatives renewed their motion for class certification. ECF No. 51. Judge Eginton denied
the motion to dismiss, see ECF No. 75, and granted the motion for class certification, certifying a
class of:
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. ECF No. 74 at 16. In its class certification order, the Court appointed the Yale Law School
Veterans Legal Services Clinic and the law firm Jenner & Block LLP as class counsel (“Class
Counsel”). Id. at 16-17.
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B. Discovery On April 5, 2019, the Court ordered the Army to produce administrative records relevant to the claims made in this action “in addition to any relevant policy memoranda, regulations, and other documents.” ECF No. 80. On May 31, 2019, the Army produced three volumes of materials that constituted the administrative record. ECF No. 82. The administrative record included all files pertaining to Mr. Kennedy’s and Ms. Carson’s discharge upgrade adjudications, as well as supplemental materials. ECF No. 84-85. After determining that the administrative record was insufficient to resolve the claims at issue, Class Counsel requested extra-record discovery. ECF No. 97. Judge Eginton granted Class Counsel’s request and referred the case to Magistrate Judge Spector to supervise this discovery. ECF No. 101. Under the guidance of Magistrate Judge Spector, the parties agreed to a joint discovery order. As part of that order, the Army agreed to produce all decisional documents issued by the ADRB in the course of adjudicating discharge upgrades during the class period (i.e., from 2001 to 2019). ECF No. 117. The parties also agreed to a deposition conducted pursuant to Rule 30(b)(6) regarding the ADRB’s training procedures and general operations. Id. Class Counsel also requested that the Army produce a sample of 100 underlying applications that served as the basis for 100 corresponding decisional documents. ECF No. 134. The Court ordered a sample of 50 underlying applications be produced. ECF No. 140. C. Settlement Negotiations While discovery was ongoing, the parties expressed a mutual interest in settlement. ECF No. 108. Counsel for the parties met to begin preliminary settlement discussions on October 10, 2019. On February 19, 2020, the parties participated in a formal settlement conference before Magistrate Judge Spector, during which Class Counsel presented their initial demands for relief. Over the course of several months, the parties engaged in numerous additional settlement
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conferences with Magistrate Judge Spector, during which Magistrate Judge Spector guided settlement negotiations and their culmination into an agreement. On August 7, 2020, the parties conferred on a Term Sheet and reached an agreement-in-principle before Magistrate Judge Spector. Ultimately, the parties memorialized those terms and conditions in their Settlement Agreement. III. The Proposed Settlement
The Settlement Agreement provides both retrospective and prospective relief. For class members who previously applied to the ADRB, the settlement provides either reconsideration or reapplication rights under current law and guidance that requires liberal review of discharge upgrade applications that describe symptoms and signs of PTSD or PTSD-related conditions. For class members who have not previously applied, as well as for all new applicants to the ADRB, the Settlement Agreement requires the ADRB to use updated decisional documents, provide training on these new documents to agency members, send applicants notice with referrals for legal and medical assistance that might help their discharge upgrade applications, and establish a universal telephonic personal appearance program to provide all applicants the ability to conveniently access personal appearance hearings. Defendant also agrees to pay $185,000 in attorneys’ fees and costs to Class Counsel. The settlement terms are discussed in greater detail below. See infra pp. 17-23.
LEGAL STANDARD Rule 23(e) provides that a class action may not be settled without the approval of the Court. The determination whether to approve a settlement is committed to the Court’s discretion. Joel A. v. Giuliani, 218 F.3d 132, 139 (2d Cir. 2000); Kemp-DeLisser v. Saint Francis Hosp. & Med. Ctr., No. 15-CV-1113, 2016 WL 6542707, at *6 (D. Conn. Nov. 3, 2016). As a matter of public policy, federal courts favor the settlement of disputed claims, particularly in complex class actions. See Wal-Mart
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Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005). For class actions such as this one that do not bind class members with regard to their own individual claims, the Court need not hold a fairness hearing under Rule 23(e)(2). See Fed. R. Civ. P. 23(e)(2). This Court should still use that standard to guide the exercise of its settlement approval discretion in this action.
When reviewing a proposed settlement of a class action that requires a fairness determination under Rule 23(e)(2), the Court should determine whether the proposed settlement is “fair, reasonable, and adequate”. Fed. R. Civ. P. 23(e)(2); Simerlein v. Toyota Motor Corp., No. 3:17-CV-1091, 2019 WL 2417404, at *12 (D. Conn. June 10, 2019) (citing other sources). The Court should examine both the negotiating process leading to the settlement (procedural fairness) and the settlement’s substantive terms (substantive fairness). See Fed. R. Civ. P. 23(e); Wal-Mart, 396 F.3d at 116; Kemp-DeLisser, 2016 WL 6542707, at *7.
Courts in this Circuit have traditionally determined the fairness of a proposed class action settlement by applying the factors drawn from the Second Circuit’s 1974 opinion in City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000). Those factors are:
(1) the complexity, expense and likely duration of the litigation, (2) the reaction of the class to the settlement, (3) the stage of the proceedings and the amount of discovery completed, (4) the risks of establishing liability, (5) the risks of establishing damages, (6) the risks of maintaining the class action through the trial, (7) the ability of the defendants to withstand a greater judgment, (8) the range of reasonableness of the settlement fund in light of the best possible recovery, [and] (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Id. at 463. Further, Rule 23 was amended in 2018 to provide additional guidance and make uniform the criteria to consider when class action settlements are proposed. See Fed. R. Civ. P. 23, 2018
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Advisory Committee Notes. The four key factors to consider are whether: (A) the class representative and class counsel have adequately represented the class; (B) the proposal was negotiated at arm’s length; (C) the relief provided to the class is adequate; and (D) the proposal treats class members equitably relative to one another. Fed. R. Civ. P. 23(e)(2)(A)-(D). The 2018 amendments elaborate upon, rather than displace, the Grinnell factors. Fed. R. Civ. P. 23, 2018 Advisory Committee Notes. Accordingly, courts consider both sets of factors in its analysis of whether the proposed settlement is fair, reasonable, and adequate, and whether to grant final approval. See, e.g., In re Payment Card Interchange Fee, 330 F.R.D. 11, 29 (E.D.N.Y. 2019); Berni v. Barilla G. e R. Fratelli, S.p.A., 332 F.R.D. 14, 33 (E.D.N.Y. 2019) (considering both sets of factors because “[i]t is unclear whether these criteria replace or merely supplement the Grinnell factors”), vacated on other grounds by Berni v. Barilla S.p.A., 964 F.3d 141 (2d Cir. 2020). The Rule 23(e)(2)(C-D) factors and the Grinnell factors are used to assess the substantive suitability of the settlement; the factors from Rule 23(e)(2)(A-B), which subsume Grinnell factor (3), are primarily used to assess the procedural suitability of the settlement. See In re Payment Card Interchange Fee, 33 F.R.D. at 29.
ARGUMENT The settlement is both procedurally and substantively fair. First, it is procedurally fair because the class was represented by appropriate plaintiffs and experienced counsel who engaged in meaningful discovery and settlement negotiations at arm’s length, under the supervision of Magistrate Judge Spector. Second, the settlement is substantively fair, considering the benefits it confers to the class, its equitable treatment of class members, and the risks and delays inherent in protracted litigation.
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Moreover, Class Counsel’s notice plan, including notice by publication and press outreach, is also reasonable. Therefore, the Court should find the Settlement fair, reasonable, and adequate, approve the notice plan, and schedule a fairness hearing. I. The Settlement Is The Result Of A Procedurally Fair Process
Courts in this Circuit evaluate the procedural fairness of a class action settlement by considering the adequacy of class counsel, the adequacy of the class representatives, and whether the negotiations were conducted at arm’s length. See In re Payment Card Interchange Fee, 330 F.R.D at 30-36. “A ‘presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm’s-length negotiations between experienced, capable counsel after meaningful discovery.’” Wal-Mart, 396 F.3d at 116; see also In re NASDAQ Mkt.-Makers Antitrust Litig., 187 F.R.D. 465, 474 (S.D.N.Y. 1998) (noting that the presumption of procedural fairness under these conditions is “strong”).
The class here was adequately represented by highly experienced attorneys and representative named plaintiffs who engaged in significant litigation, involving dispositive motion practice and discovery disputes. Through this litigation, Class Counsel obtained sufficient information to negotiate a fair settlement. Further, Class Counsel’s settlement negotiations with the Army, supervised by Magistrate Judge Spector, were conducted at arm’s length. Thus, the settlement is procedurally fair.
A. Class Counsel Provided Adequate Representation 1. The Class Was Represented By Experienced And Capable Counsel
The class in this case is represented by an experienced team of attorneys and law student interns from the Veterans Legal Services Clinic (“VLSC”) at Yale Law School and Jenner & Block LLP. When he certified the class in this matter, Judge Eginton recognized that Class Counsel have the necessary “experience litigating class actions and issues involving veterans seeking discharge
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upgrades” to adequately represent the class. ECF No. 74 at 15. Accordingly, Judge Eginton concluded that “adequacy of representation is assured.” Id. Indeed, Class Counsel have extensive experience in discharge upgrade law, representing less-than-honorably discharged veterans, and litigating complex matters and class actions. Class Counsel, therefore, has the experience and qualifications to represent the class adequately.
2. Class Counsel Engaged In Meaningful Discovery In This Case In determining whether a class action settlement is fair, reasonable, and adequate, courts also consider the stage of the proceedings and the amount of discovery completed to ensure that Class Counsel had access to sufficient information to evaluate their case and the prospect of any settlement. See Weinberger v. Kendrick, 698 F.2d 61, 74 (2d Cir. 1982); Chatelain v. PrudentialBache Sec., Inc., 805 F. Supp. 209, 213-14 (S.D.N.Y. 1992); In re Global Crossing, 225 F.R.D. 436, 458 (S.D.N.Y. 2004) (this requirement “is intended to assure the Court ‘that counsel for plaintiffs have weighed their position based on a full consideration of the possibilities facing them’”) (citation omitted). Class Counsel here obtained a significant amount of discovery outside the administrative records of the named plaintiffs—which is unusual in APA litigation—that enabled them to understand the source and scope of the ADRB’s systemic failure to adjudicate discharge upgrade applications correctly by applying the appropriate statutory and administrative standards. This includes: • Internal ADRB memoranda, various iterations of the ADRB’s Standard Operating
Procedures, training documents, vote sheet templates used at different time periods, and decisional documents from the Army; • Data gathered from the 15,393 decisional documents generated by the ADRB during the 2001-2019 period that Defendant produced pursuant to the parties’ joint discovery plan;
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• A random sample of 50 decisional documents and underlying applications produced by the Army to analyze discharge upgrade rates and whether the Army properly identified mental health conditions or military sexual trauma;
• A Rule 30(b)(6) deposition of Colonel Michael G. Pratt, former Director of the Military Review Boards, regarding the ADRB’s internal policies, procedures, and practices, including its Standard Operating Procedures, training on Department of Defense guidance memoranda, and discharge characterization application adjudication processes; and
• Jointly with counsel in Manker v. Spencer, No. 3:18-cv-00372-CSH (D. Conn.), a Rule 30(b)(6) deposition of Lieutenant Colonel Reggie D. Yager, former Deputy Directory and former Acting Director of the Office of Legal Policy in the Office of the Under Secretary of Defense for Personnel and Readiness, inquiring into the policies, procedures, and practices of discharge review boards and boards for correction of military records; the Department of Defense (DOD) perception of how well its guidance memoranda were implemented by the boards, including the ADRB; and whether DOD intervened to promote compliance with these memoranda.
This discovery enabled Class Counsel to assess the legal position of the class and to
negotiate a fair settlement. Accordingly, their considered judgment that the settlement meets the
requirements of Rule 23(e) is entitled to “great weight.” In re NASDAQ, 187 F.R.D. at 474; see
also Aramburu v. Healthcare Financial Services, Inc., No. 02-CV-6535, 2009 WL 1086938, at *2
(E.D.N.Y. Apr. 22, 2009) (“[I]n appraising the fairness of a proposed settlement, the view of
experienced counsel favoring the settlement is entitled to a great weight.”) (quotations omitted).
B. The Class Representatives Possess The Same Interest And Initially Suffered The Same Injury As Other Class Members
Class representatives satisfy the adequacy requirement of Rule 23(e)(2)(A) when they have
“an interest in vigorously pursuing the claims of the class, and . . . have no interests antagonistic
to the interests of other class members.” In re Payment Card Interchange Fee, 330 F.R.D. at 31
(quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006)). Courts look to class
certification caselaw when assessing whether class representatives have adequately represented a
class in settlements. See id. at 30 n. 25.
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As Judge Eginton found in his order granting class certification, Mr. Kennedy and Ms. Carson are “particularly well qualified as class representative[s] because they have experienced the stigma of less-than-Honorable discharges and have participated in the upgrade application process.” ECF No. 74. Both Class Representatives thus have an enhanced understanding of the considerations important to this action and “sufficient interest in the outcome of the case to ensure vigorous advocacy,” even after they personally received discharge upgrades during this litigation. Id. In particular, Mr. Kennedy founded the Connecticut Chapter of Iraq and Afghanistan Veterans of American, a veteran advocacy membership organization, demonstrating his broad commitment to advancing the rights and promoting the well-being of his fellow veterans. Id. at 14-15. The Court should thus leave undisturbed Judge Eginton’s determination that the Class Representatives are adequate representatives of the entire class.
C. The Settlement Was Negotiated At Arm’s Length This settlement is the product of an arm’s-length process that involved multiple and lengthy negotiations over complex issues. Thus, it is entitled to a “presumption of fairness, adequacy, and reasonableness.” Wal–Mart, 396 F.3d at 116. The settlement is the result of a painstaking seven-month negotiation process overseen by Magistrate Judge Spector. During that period, Magistrate Judge Spector convened three joint settlement conferences and 17 Plaintiffs- or Defendant-only settlement conferences. See ECF Nos. 142, 145, 149, 151, 152, 155, 156, 158, 159, 162, 165, 167, 169, 171, 176, 177, 178, 180, 181, 189. In total, the parties participated in more than sixteen hours of Court-supervised negotiation before a settlement was finally reached. Moreover, the parties corresponded frequently among themselves to discuss the issues in the case and consider every textual and practical nuance of their resulting agreement. Throughout these negotiations both in and out of court, the parties often strongly disagreed, and their negotiations were frequently contentious. See, e.g., ECF No. 78
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(Defendant noted that “[t]his case has been vigorously litigated with multiple rounds of briefing”). Thus, the Settlement is the product of an arm’s-length negotiation. See Ingles v. Toro, 438 F. Supp. 2d 203, 213 (S.D.N.Y. 2006) (approving injunctive class settlement in lawsuit where “the litigation was hard-fought and the settlement negotiations . . . were extended and involved the Court”).
* * * In sum, the experienced advocacy of Class Counsel (informed by the breadth of information gathered through discovery), the backgrounds and interests of Class Representatives, and the protracted arm’s-length settlement negotiations supervised by Magistrate Judge Spector amply support a finding that the process resulting in this settlement was procedurally fair. See In re Sturm, 2012 WL 3589610, at *4. II. The Settlement Agreement Is Substantively Fair, Reasonable, And Adequate The settlement is also substantively fair as required by Rule 23(e)(2)(C) and (D). These subsections require the Court to examine the settlement’s adequacy, taking into account the costs, risks, and delay of trial and appeal, the effectiveness of distributing relief, and terms of attorney’s fees, and considering whether class members are treated equitably. Fed. R. Civ. P. 23(e)(2); In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 330 F.R.D. 11, 29 (E.D.N.Y. 2019). In this Circuit, courts make this determination with reference to the Grinnell factors. See In re Payment Card Litig., 330 F.R.D. at 29. The Grinnell factors applicable to this substantive analysis include: the complexity, expense and likely duration of the litigation; the risks of establishing liability; the risks of maintaining the class action through trial; the range of reasonableness of the settlement fund in light of the best possible recovery; and the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. “For a settlement to be substantively fair, not every factor must weigh in favor of
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settlement, rather, the court should consider the totality of these factors in light of the particular

circumstances.” Kemp-DeLisser, 2016 WL 6542707, at *7.

A.

The Proposed Settlement Secures Significant Benefits For The Class

The settlement provides significant benefits to class members, including retrospective and

prospective relief. Moreover, because the Settlement resolves only class claims concerning

Defendant’s policies and procedures, it will not bind any class member regarding his or her

individual discharge upgrade claim. Similarly, the settlement does not waive any class

member’s right to challenge any past or future ADRB decision in an individual case.

The settlement offers six discrete benefits to the Class—none of which would have been

available absent this settlement: (1) automatic reconsideration of all adverse decisions in class

members’ cases issued on or after April 17, 2011, until the effective date of settlement, subject to

eligibility requirements discussed below; (2) public and individual notice to class members of the

right to reapply to the ADRB or Army Board for Correction of Military Records (“ABCMR”)

where the ADRB issued the decision between October 7, 2001, and April 16, 2011, subject to

eligibility requirements discussed below; (3) a revision to the Military Review Boards Standard

Operating Procedures and a decisional document template; (4) a universal telephonic personal

appearance board program; (5) annual training for ADRB members that is specifically tailored to

mental health conditions; and (6) revised notice to all future applicants to the ADRB, including

referral to free legal and medical services. In addition, the settlement either requires the ADRB to

apply, or leaves intact, the rights provided to class members under four Department of Defense

guidance memoranda that address applications based on mental health conditions or military

sexual trauma.

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1. Reconsideration For 2011-2020 Applications The settlement benefits class members who received an adverse decision on or after April 17, 2011, to the effective date of settlement by requiring automatic reconsideration of decisions that did not grant the full relief requested by the applicant and where the underlying application contained a diagnosis or allegation of, or evidence or allegations of symptoms of, PTSD, TBI, MST, or OBH. Settlement Agreement § IV.A.1. The ADRB will reconsider these decisions under the standards of the Hagel, Carson, Kurta, and Wilkie Memoranda, applying the “liberal consideration” standard of ADRB’s governing statute. Class members receiving automatic reconsideration will receive notice that their prior applications are being reconsidered under the current standards and that they have the right to send medical and other evidence to further support their applications. Id. § IV.A.3. Such class members will also receive information regarding free legal services. Id. The settlement ensures that these class members are not required to undertake any steps for their decisions to be reconsidered. The automatic, guaranteed mechanism to review adverse decisions received on or after April 17, 2011, to the effective date of settlement is a unique benefit of the settlement. Without the Settlement Agreement, these class members would be required to resubmit new applications to the ADRB or ABCMR to have their claims reconsidered under the “liberal consideration” standard. These class members will also have easier access to information regarding available legal and medical services under the settlement. Moreover, the settlement mandates that the ADRB provide additional notice and reapplication rights to veterans whose applications were decided between April 17, 2011, and September 4, 2014, and who did not receive the relief they requested, but whose cases did not sufficiently raise issues of mental health or MST for them to be identified by the parties as class members. Id. § IV.A.6. This is because prior to the issuance of the Hagel Memorandum on
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September 4, 2014, an applicant to the ADRB may have been less likely to discuss mental health conditions in their application even when the applicant had experienced relevant symptoms. In addition, before 2014, the ADRB did not specially code its cases for PTSD, TBI, MST, or other mental health conditions. Because the ADRB’s review of case data targeted only those class members who discussed those conditions or experiences, this relief aims to identify and reach out to all class members who had service-related mental health conditions, TBI, or MST, but did not explicitly discuss those experiences or conditions in their applications. The settlement provides relief to these class members by ensuring that they receive notice informing them of their right to reapply and receive de novo review under the “liberal consideration” standard if they present a diagnosis or allegation of, or evidence or allegations of symptoms of, PTSD, TBI, MST, or OBH. Notice will also include information regarding available legal and medical services. This relief is particularly beneficial because it targets applicants who might otherwise be eligible for automatic reconsideration of their decisions and ensures they receive notice of an opportunity to reapply under a more liberal standard of review. The settlement is adequate because it is over-inclusive in its relief and notice requirements that provide benefits to all individuals who have been identified or otherwise could be identified as class members.
2. Notice Of Reapplication Rights For 2001-2011 Applicants The settlement benefits class members who received adverse decisions between October 7, 2001, and April 16, 2011, by providing them notice and the right to reapply to the ADRB (or notifying them of the right to apply to the ABCMR for discharges that now lie outside the ADRB’s 15-year statute of limitations period). Id. § IV.B.1. Although some class members may have already had the right to reapply to the ADRB pursuant to 32 C.F.R. § 70.8, the settlement ensures that all class members in this period may reapply. By sending notice directly to these class members, id. § IV.B.3, the settlement will also help veterans by increasing awareness of their
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Case 3:16-cv-02010-CSH Document 198-1 Filed 11/17/20 Page 26 of 39
rights. The settlement also benefits all class members by including a link to the four key Department of Defense guidance memoranda in the Settlement Agreement, which is provided in the Class Notice, thus increasing awareness of all class members’ rights and the potentially increased likelihood of success should these class members choose to reapply. The settlement also benefits these class members by requiring that notice include information regarding available legal and medical services, id., that each class member would otherwise be required to independently identify.
3. Revised Decisional Documents And Procedures The settlement provides prospective relief to all future ADRB applicants, including but not limited to class members, by requiring the ADRB to incorporate new language and procedures into its Military Review Boards Standard Operating Procedures and decisional document template. Id. § IV.D.1-D.2. Specifically, the new language requires that the ADRB explicitly respond to the Kurta Memorandum factors in each adverse decision it issues. Id. § IV.D.1. This feature of the settlement ensures future applicants have more information to understand the ADRB’s decisionmaking process and why the ADRB found their claims insufficient. This relief is important because the ADRB routinely fails to cite various authorities requiring liberal consideration, such as the Hagel Memorandum, Kurta Memorandum, Wilkie Memorandum, or relevant provisions of the National Defense Authorization Act of 2017 codified at 10 U.S.C. § 1553, even when the applicant presents a diagnosis, symptoms, or evidence of a mental health condition, TBI, or MST. Similarly, the ADRB routinely uses boilerplate language when discussing specific facts in cases without engaging in an individualized analysis of the veteran’s claim. This settlement materially benefits applicants by ensuring that future applicants denied by the ADRB will receive a detailed explanation of the reasons for such denial, making it easier for applicants to challenge any adverse decision with more information about why the
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application was denied and what evidence was relied upon to reach that conclusion. Because the ADRB’s commitments under this portion of the Settlement Agreement are ongoing, the settlement provides fair and adequate relief to all future applicants.
4. Universal Option For Telephonic Personal Appearance Boards Under the settlement, the ADRB commits to create a new, universal Telephonic Personal Appearance Board Program that will increase access to personal appearances before the ADRB. Id. § IV.E.1. A personal appearance is an important feature of the application process and can increase the likelihood that an applicant will receive a favorable decision. Although the ADRB has previously offered applicants with an option to appear by videoconference, it has done so sporadically and only in certain geographic locations. This settlement materially benefits class members who are unable to travel at their own expense for a personal appearance before the ADRB in Washington, D.C., or who are unable to access the ADRB’s infrequent videoconference hearings. This settlement ensures that all applicants who request a personal appearance hearing will be eligible for this telephonic program and may elect to participate from their personal residences or other location of their own choosing. Id. This option ameliorates the costs that applicants must bear to travel significant distances to attend their personal hearings. Without this settlement, applicants would have fewer opportunities to participate in their proceedings and persuade the ADRB of their claims.
5. Training This settlement benefits class members and all future applicants by requiring the Army to conduct an annual training for ADRB members that is specifically tailored to cases that reference PTSD, TBI, MST, or OBH. Id. § IV.F.1. Class Counsel’s review of 50 decisional documents and underlying applications found that the ADRB sometimes mischaracterizes symptoms of mental health conditions when a diagnosis is absent. Training for PTSD became required for all ADRB
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members only beginning around 2014, and analysts identify cases with mental health conditions only about five percent of the time when the applicant lists symptoms instead of a diagnosis. By mandating specialized training on how to adjudicate applications that present mental health conditions or symptoms thereof, including training on the new language in the Standard Operating Procedures, id. § IV.F.2, the settlement ensures that applications will be considered by more competent professionals.
6. Notice For New Applications Finally, the settlement benefits future applicants by requiring the ADRB to inform applicants regarding legal and medical services available to them. Id. § IV.G.1-G.2. Notice provided by the ADRB will direct applicants to Veterans Service Organizations and a national legal support webpage to locate free local advocacy resources that might assist with their applications. Id. § IV.G.1. It will also encourage applicants to provide medical evidence to better support their claims and shares potential options for obtaining such evidence. Id. § IV.G.2. The settlement materially benefits class members and all future applicants by enhancing their access to information and resources that they would otherwise have to obtain independently. Moreover, the settlement leaves in place both the rights provided to class members under the four Department of Defense guidance memoranda on mental health and the existing procedures to seek review and appeal of individual ADRB decisions. Class members do not release their rights to pursue discharge upgrade applications at any of the available venues, and any application filed by class members will benefit from the procedural reforms proposed in the settlement.
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B. The Relief Provided To The Class Is Adequate In Light Of The Costs, Risks, And Delay Of Trial And Appeal
This settlement secures substantial benefits for class members in light of the risk and expense of protracted litigation. It provides class members with multi-pronged relief and should be viewed as reasonable and adequate under Rule 23(e)(2)(C) and the Grinnell factors.
1. The Complexity Of Continued Litigation And The Benefit Of Avoiding Delay
Rule 23(e)(2)(C) requires the Court to consider whether the “relief provided for the class is adequate” by examining “the costs, risks, and delay of trial and appeal.” Fed. R. Civ. P. 23(e)(2). In considering whether to approve this settlement, the Court balances the “complexity, expense and likely duration of the litigation” and benefits afforded to the class. City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000). “As a general policy matter, federal courts favor settlement, especially in complex and large-scale disputes, so as to encourage compromise and conserve judicial and private resources.” In re Glob. Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 455 (S.D.N.Y. 2004).
This class action is complex. Class Counsel’s APA and Due Process Clause claims involve several discrete factors related to the ADRB’s persistent failure to follow the law and implement its own rules and procedures in adjudicating discharge applications. As part of these claims, Class Counsel alleges that the ADRB has arbitrarily denied applications since 2001 and systematically failed to apply the “liberal consideration” standard of recent Department of Defense guidance and statutory amendments. Class Counsel also challenges the ADRB’s training and operating procedures, arguing that both fail to provide substantive guidance on how to apply the Department of Defense guidance memoranda and related laws. These claims, among others, span over 19 years of class members’ applications during which the ADRB’s policies, practices, and procedures have
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changed. Because this class action litigates issues spanning nearly two decades and which require careful analysis of the ADRB’s implementation of changing standards, settlement should be favored in this multifaceted and large-scale litigation.
Absent this settlement, class counsel would pursue further discovery and litigation to seek relief for the tens of thousands of class members. Courts grant motions for extra-record discovery, as the Court did here, on a case-by-case basis to supplement the administrative record in APA actions. Nat’l Audubon Soc. v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997) (citing Florida Power & Light Co., 470 U.S. 729, 744 (1985)); see also Camp v. Pitts, 411 U.S. 138, 142–43 (1973). Class Counsel believes that additional discovery, including expert discovery, would be necessary to resolve its APA claims challenging the ADRB’s policies, practices, and procedures that result in systemic disparities in the adjudication of class members’ applications. Class Counsel will vigorously pursue additional discovery, which, if granted, could prove costly to all parties— particularly because the class spans over 19 years and COVID-19 may delay progress as it did during the settlement negotiations. Accordingly, the costs of this action would rise dramatically in the absence of a settlement. The parties will likely disagree about the amount and types of discovery appropriate in this matter and require the Court’s assistance in resolving those disputes. The parties would also shoulder considerable expense to find and retain experts to testify on Class Counsel’s claims. If litigation continues, the parties would spend many hours drafting motions, conducting discovery, and preparing for summary judgment and/or trial. In short, further litigation to secure relief for class members is likely to be an expensive and time-intensive endeavor.
To avoid such protracted litigation, this settlement offers immediate relief to class members. As noted above, class members receive the benefit of retrospective and prospective relief with regard to rereview of many class members’ applications, updated decisional documents and
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procedures, improved access to personal appearances before the ADRB, annual training for ADRB members, and informative notice to new applicants with referrals to legal and medical services. This settlement enunciates concrete timelines for the ADRB to begin to remedy its systemic failures and to report on its implementation of the settlement terms.
There are several benefits to providing immediate relief to class members through this settlement. Further discovery and litigation would delay a class member’s opportunity to receive a discharge upgrade and its corresponding benefits. In particular, the COVID-19 pandemic has destabilized many individuals’ lives, including those of class members who may have lost employment and will have a more difficult time finding new employment with a less-thanHonorable discharge status. Due to COVID-19, class members may require greater access to health care that they might be unable to receive with a less-than-Honorable status.
In addition, a protracted litigation process would render more class member claims ineligible for new or renewed applications to the ADRB due to its 15-year statute of limitations. Class members whose discharge dates fall outside of that limitations period could thus lose a venue in which to have their discharge reviewed and be left only with the opportunity to apply to the ABCMR. Applicants to the ABCMR may appear in person only at the discretion of that board, 32 C.F.R. § 581.3(f), and not as of right as before the ADRB, see 10 U.S.C. § 1553(c). As the ABCMR has granted few if any in-person hearing requests in recent decades, class members required to apply to that board would almost certainly lose a valuable opportunity to advocate in person for their discharge upgrades.
In light of the benefits noted above, and the complexity, expense, and likely extended duration of the litigation should it continue, the settlement should be viewed as a satisfactory result.
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2. The Risks To Obtaining Relief Although Class Counsel’s case rests on viable claims that survived a motion to dismiss and are well supported by evidence, litigation would introduce complex remedial issues and necessarily carries some risk of an unfavorable judgment. The Grinnell factors require the Court to consider the risks of liability and maintaining the class action through trial, and the reasonableness of the settlement in light of those risks. City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000); see also Fed. R. Civ. P. 23(e)(2) (taking into account the risks of trial and appeal). Class Counsel will vigorously prosecute Plaintiffs’ claims and believe that further discovery would continue to produce evidence of the arbitrary and capricious decision-making and due process violations by the ADRB. Even so, Class Counsel recognizes the risk of an unfavorable judgment at trial, and questions of remedy may arise due to the novel nature of this class action. As one example of an ongoing risk, the availability of a remedy for all class members from 2001 onward may be complex. Civil actions against the United States, including veterans’ challenges to ADRB denials under the APA, are subject to a six-year statute of limitations, 28 U.S.C § 2401(a). See Lasky v. McHugh, 92 F. Supp. 3d 3, 9 (D. Conn. 2015), aff'd, 668 F. App'x 369 (2d Cir. 2016) (summary order). The class claims in this case were filed on April 17, 2017, making the statute of limitations cutoff April 17, 2011. Am. Compl., ECF No. 11. Given the nature of the class claims as challenges to the ADRB’s continuing policies, practices, and procedures that could apply to future applications for reconsideration or other procedures, class members who received an adverse decision more than six years prior to the filing of the class claims would still have viable class claims, but the availability of an individualized remedy related to class members’ pre-April 17, 2011 decisions may be limited. Furthermore, although litigation could result in the
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court vacating and remanding all class members’ decisions without time limitation, the ultimate relief could be limited when compared to the settlement’s multi-pronged approach to remedying the ADRB’s systemic failures. Class Counsel believes that the Court can and should produce remedies agreed upon in this settlement through trial, though Defendant is likely to disagree. While Class Counsel believes that the claims have merit and would prevail at trial, the risks at this stage of litigation are another reason to approve this settlement and provide guaranteed relief to class members and future applicants.
C. The Settlement Treats Class Members Equitably Relative To Each Other Rule 23(e)(2)(D) requires the Court to assess whether the settlement “treats class members equitably relative to each other.” As set forth in the Advisory Note to the 2018 amendments, “[m]atters of concern could include whether the apportionment of relief among class members takes appropriate account of differences among their claims.” Fed. R. Civ. P. 23(e), 2018 Advisory Committee Notes. Thus, “equitable” treatment does not require identical treatment. See, e.g., Radcliffe v. Hernandez, 794 F. App’x 605, 607 (9th Cir. 2019); In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, No. 05-MD-1720, 2019 WL 6875422019 at * 27 (E.D.N.Y. Dec. 16, 2019) (approving settlement as “equitable” notwithstanding that merchants who were in the class for only a portion of the class period would have to release claims for the full class period without much compensation, while others might receive proportionally more compensation with the same release). In this case, the settlement provides for procedural changes at the ADRB that will benefit all class members who apply, reapply, or have their applications automatically reconsidered by the ADRB. Settlement Agreement IV.D-G. Such procedural relief is fitting because this action’s allegations center on procedural failures at the ADRB. Though the settlement does not guarantee that all class members will receive the same substantive discharge upgrade decision, their
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applications will all be decided using the new procedures outlined in the Settlement Agreement. Thus, the procedural relief obtained in this settlement applies equitably to all class members. The primary difference in the way that relief is apportioned among class members is whether a class member receives automatic reconsideration by the ADRB or notice of a right to submit a new application to the ADRB or ABCMR. See supra pp. 17-23. As explained above, class members whose discharge upgrade applications were decided before April 17, 2011, would likely be timebarred from challenging those decisions by litigating individual APA claims. They are thus situated differently than class members with later discharge dates who could litigate individual claims and so receive automatic reconsideration. A difference in treatment based on different situations is permissible. See William H. Rubenstein, 5 Newberg on Class Actions § 13.44 (5th ed. June 2020 Update) (noting that a settlement is still equitable where “class members should be treated differently because they are situated differently”); see also Clark v. Duke University, No. 2019 WL 2588029, at *5–6 (M.D.N.C. 2019) (noting that “different circumstances” justified different treatment of class members and that settlement was both fair and equitable). Similarly, it is more likely that applications from 2011 to 2014, though not time-barred, would not have been as explicit about mental health claims, because the relevance of such claims was not widely known until issuance of the Hagel Memorandum in 2014. In addition, the ADRB did not code for PTSD cases before 2014. Accordingly, it is more likely that the Army review of case data failed to identify a class member in that period, thus warranting the additional notice efforts for 2011-2014 applicants provided in the Settlement Agreement. Consequently, the settlement treats class members equitably because the primary difference in relief is justified by a real and substantial situational difference.
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III. The Proposed Class Notice Is Adequate The proposed form and method of notice of proposed settlement (“Class Notice”) is
adequate because it satisfies all due process considerations and the requirements of Rule 23(e). Given the due process considerations for this type of injunctive relief under Rule 23(b)(2), the proposed form and method of notice are reasonable and robust.
A. The Proposed Class Notices Is Substantively Reasonable Rule 23(e) provides that the “court may direct appropriate notice to the class.” Fed. R. Civ. P. 23(e). Courts in this Circuit have consistently evaluated the adequacy of a class notice under a standard of reasonableness, including in the context of a Rule 23(b)(2) class action. Hecht v. United Collection Bureau, 691 F.3d 218, 224 (2d Cir. 2012). Class notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Handschu v. Special Services Div., 787 F.2d 828, 832-33 (2d Cir. 1986) (internal quotation marks omitted). “[T]he district court has virtually complete discretion as to the manner of giving notice to class members.” Id. at 833. The proposed Class Notice is substantively reasonable because it contains every key component that the Second Circuit has previously considered in evaluating the adequacy of class notice in Rule 23(b)(2) class actions. In this Circuit, courts have generally found class notice substantively reasonable when it identifies the parties and class, reviews the central issues of the lawsuit, summarizes the central terms of the settlement agreement, and notifies class members of the date and location of the fairness hearing along with their right to participate in it. See, e.g., McReynolds v. Richards Cantave, 588 F.3d 790, 797-98 (2d Cir. 2009); Handschu, 787 F.3d at 828. In that vein, the class notice does not need to include the entire settlement agreement. Handschu, 787 F.3d at 832-33.
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Here, the proposed Class Notice satisfies all the criteria previously used by the Second

Circuit. The Notice: (a) identifies the action to be settled and the parties to the action; (b) describes

the class; (c) provides a summary of the claims, issues, and the terms of the settlement, including

attorneys’ fees; (d) states that a class member may enter an appearance through an attorney if he

or she so desires; (e) notes the date and location of the settlement fairness hearing; (f) identifies

where documents relating to the settlement are available for review; (g) informs class members of

their right to object to the settlement and the procedures for adequately and timely presenting any

objections to the Court; and (h) provides that Defendant will issue a press release publicizing the

settlement. See Ex. A. The proposed Class Notice thus contains all the information that previously

approved notices have contained and is therefore substantively reasonable.

B. The Proposed Distribution Method Is Reasonable Further, the methods of distribution of the proposed Class Notice satisfy the due process

considerations of Rule 23(e), particularly in light of the type of relief being afforded and the

preservation of class members’ individual claims. The settlement provides that the Class Notice

will be published in two separate locations: on Class Counsel’s class settlement website

https://www.kennedysettlement.com

and

on

Defendant’s

website

https://arba.army.pentagon.mil/adrb-overview.html. The Army will further publicize the

settlement and Class Notice by issuing a press release. Class Counsel also intends to publicize the

settlement with a press release of its own, engagement with traditional and social media,

collaboration with elected officials, and distribution of the settlement and Class Notice to veterans

organizations and veterans advocates across the country.

These measures comport with the Second Circuit’s requirement that the manner of

distribution to the class should be “the best notice practicable under the circumstances.”

McReynolds v. Richards Cantave, 588 F.3d 790, 798 (2d Cir. 2009). Publication can be an

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acceptable notice procedure. For example, the Second Circuit has held that repeated publication of a notice in several metropolitan New York newspapers for several weeks adequately notified class members of a potential settlement. See Handschu, 787 F.2d at 833. The Second Circuit has also held that a notice procedure was sufficient where the notice was published in three newspapers, posted in field offices, provided to executive directors of foster care agencies that contracted with the city government, and distributed to all child welfare groups known to the plaintiff’s counsel. See McReynolds, 588 F.3d at 797.
Here, the distribution plan is the best practicable under the circumstances, and it is more robust than those approved by the Second Circuit in Handschu and McReynolds. Each party will issue a press release, and each party will publish the Class Notice to its own website. Class Counsel’s press conference and engagement with media outlets will promote awareness of the settlement and the Class Notice through print and digital news media. Collaboration with elected officials enables such officials to draw upon their expertise in determining the most effective manner of reaching their constituent veteran populations, many of whom may be class members. Distributing the notice to veterans advocates and organizations throughout the country enables them to distribute the Notice among the populations they serve and to further amplify the settlement through their networks and social media accounts. Given the increasing number of individuals who receive news and information through social media, the use of numerous social media outlets provides a low-cost but highly effective method of the distributing Class Notice to populations that may not be reached through these other means.
Alternative methods of class notice distribution are impracticable. It is impossible to mail individualized notice to every member of the class because the settlement provides prospective relief for class members who have not yet applied for a discharge upgrade and whose addresses
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are therefore unknown. Publication through the various preceding means is the only feasible manner of reaching those class members. Courts in this Circuit have reasoned that “[t]o the extent . . . that individual members cannot be identified, notice by publication is sufficient.” Zink v. First Niagara Bank, N.A., 155 F. Supp. 3d 297, 314 (W.D.N.Y. 2016).
Further, mailing individualized notices to every class member whom the parties have been able to identify to date would create an unreasonable burden. The parties can identify some class members only by mailing address (not email), making individualized notices expensive to produce and slow to deliver. These costs outweigh the potential benefits of individualized notices, especially because of the high likelihood that class members will become aware of the settlement through other means and the fact that the settlement does not actually extinguish future claims class members might want to bring.
The proposed class notice is adequate in its substance and its manner of distribution and accordingly satisfies the requirements of the Rules and due process. The Court should find the Class Notice and its distribution method adequate.
PROPOSED SCHEDULE Class Counsel proposes the below schedule, which is based on the need to give fair notice to the class while accounting for the nature of the injunctive Rule 23(b)(2) relief, which does not require individualized notice or a lengthy publication period.

Deadline for Completing Distribution of Class Notice
Deadline for Filing Plaintiffs’ Motion for Final Approval
Deadline for Settlement Class Members to Comment Upon or Object to the Proposed Settlement

14 days after entry of Preliminary Order Approving Settlement
7 days prior to the proposed Fairness Hearing
21 days prior to the proposed Fairness Hearing

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Fairness Hearing

At least 60 days after entry of Preliminary Order Approving Settlement

CONCLUSION Through rigorous discovery and negotiations, Class Counsel has secured a robust

settlement that remediates the violations of the APA and Fifth Amendment perpetrated on a

protracted and systemic scale against members of the class. For these reasons, Class Counsel

requests that this Court grant preliminary approval of the settlement, schedule a fairness hearing,

and authorize distribution of the proposed Class Notice.

By: /s/ Michael Wishnie

Susan J. Kohlmann, pro hac vice Jeremy M. Creelan, pro hac vice Jacob L. Tracer, pro hac vice Ravi Ramanathan, pro hac vice Jenner & Block LLP 919 Third Avenue New York, NY 10022-3908 Telephone: (212) 891-1678 JCreelan@jenner.com

Joshua P. Britt, Law Student Intern Rebecca C. Brooks, Law Student Intern Andrew C. DeGuglielmo, Law Student Intern Deepankar Gagneja, Law Student Intern Renée A. Burbank, ct30669 Dana Montalto, ct30941 Michael J. Wishnie, ct27221 Veterans Legal Services Clinic Jerome N. Frank Legal Services Organization Yale Law School P.O. Box 209090 New Haven, CT 06520-9090 Tel: (203) 432-4800 michael.wishnie@ylsclinics.org

Counsel for Plaintiffs

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHEN M. KENNEDY and ALICIA J. CARSON, on behalf of themselves and all others similarly situated,

No. 3:16-cv-2010-CSH

Plaintiffs, v.

STIPULATION AND AGREEMENT OF SETTLEMENT

RYAN D. McCARTHY, Acting Secretary of the Army,

Defendant.

STIPULATION AND AGREEMENT OF SETTLEMENT This Stipulation and Agreement of Settlement (the “Stipulation” or “Settlement Agreement”), dated as of November 17, 2020, is made and entered into by and between: (i) Ryan D. McCarthy, in his official capacity as Secretary of the U.S. Army (the “Army”) (“Defendant”); and (ii) Stephen M. Kennedy and Alicia J. Carson, individually and on behalf of themselves and a class of persons similarly situated (the “Plaintiffs”). Plaintiffs and Defendant shall be referred to in this Settlement Agreement individually as a “Party” and collectively as the “Parties.” I. RECITALS This Settlement Agreement is made and entered into with reference to the following facts: A. On December 8, 2016, Plaintiff Kennedy commenced this action against Defendant to obtain judicial review of the Army Discharge Review Board’s (“ADRB”) denial of his discharge upgrade application (the “Initial Complaint”). (ECF No. 1.)

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B. Defendant moved to remand or dismiss the Initial Complaint on March 27, 2017. (ECF No. 10.)
C. On April 17, 2017, Plaintiff Kennedy and Plaintiff Carson filed an Amended Complaint seeking to litigate this action on behalf of a class. (ECF No. 11.) The Amended Complaint alleged, among other things, that since start of military operations in Iraq and Afghanistan, the Army discharged thousands of men and women with Other Than Honorable (“OTH”) or General (Under Honorable Conditions) (“GEN”) statuses due to misconduct attributable to post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), and related mental health conditions. Specifically, the Amended Complaint alleged that upon their return from Iraq and Afghanistan, veterans with service-connected PTSD, TBI, and other related mental health conditions received OTH and GEN discharges and were systematically denied status upgrades by the ADRB. The Amended Complaint further alleged that these veterans were denied status upgrades even as scientific and medical understanding of PTSD and TBI advanced and explained how these conditions can affect soldiers’ behavior. Plaintiffs further alleged that, despite the 1944 statute creating the ADRB, longstanding regulations, and binding Department of Defense guidance that clarified the ADRB’s obligation to give liberal consideration to the applications of former soldiers who incurred these mental health conditions, the ADRB systematically failed to apply appropriate decisional standards or provide Class members with due consideration, in violation of the Administrative Procedure Act (“APA”) and the Due Process Clause of the Fifth Amendment.
D. On June 27, 2017, Plaintiffs filed a motion for class certification. (ECF No. 15.) Defendant opposed Plaintiffs’ motion.
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E. On June 30, 2017, Defendant filed a motion to dismiss the Amended Complaint or, in the alternative, remand Plaintiff Kennedy’s and Plaintiff Carson’s ADRB applications to the Army for further consideration. (ECF No. 16.) Plaintiffs opposed Defendant’s motion.
F. On September 18, 2017, the Court denied Defendant’s motion to dismiss without prejudice, granted Defendant’s motion for voluntary remand, and stayed this action pending reconsideration of Plaintiff Kennedy’s and Plaintiff Carson’s ADRB applications. (ECF No. 29.)
G. On October 18, 2017, before the ADRB could reconsider Plaintiff Carson’s application, the Adjutant General, Major General Thaddeus Martin, exercised his authority to upgrade Plaintiff Carson’s characterization of service to Honorable.
H. On March 29, 2018, the ADRB upgraded Mr. Kennedy’s discharge characterization to Honorable.
I. On June 4, 2018, Defendant filed a second motion to dismiss the Amended Complaint. (ECF No. 50.) Plaintiffs opposed Defendant’s motion.
J. Also on June 4, 2018, Plaintiffs filed a second motion for class certification. (ECF No. 51.) Defendant opposed Plaintiffs’ motion.
K. On December 21, 2018, the Court granted Plaintiffs’ motion for class certification pursuant to Federal Rule of Civil Procedure 23(b)(2). (ECF No. 74.) The Court defined the class as “[a]ll 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
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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.”
L. The Court also named Plaintiff Kennedy and Plaintiff Carson as class representatives, and the Jerome L. Frank Legal Services Clinic of Yale Law School and Jenner & Block LLP as Class Counsel.
M. On January 9, 2019, the Court denied Defendant’s motion to dismiss. (ECF No. 75.)
N. On March 6, 2019, Plaintiffs filed a Federal Rule of Civil Procedure 26(f) Report, which contained a proposed case management plan. (ECF No. 76.) The same day, Defendant filed a motion for a status conference, in which Defendant took the position that discovery was not warranted in this case. (ECF No. 77.)
O. On April 5, 2019, the Court ordered Defendant to produce to Plaintiffs “the full administrative records relevant to the claims of lead plaintiffs in this action in addition to any relevant policy memoranda, regulations and other documents, to the extent that these documents might provide background information.” The Court also determined that it would “consider whether discovery is necessary thereafter.” (ECF No. 80.) Defendant filed the administrative record on May 31, 2019. (ECF Nos. 82–85.)
P. On June 18, 2019, Plaintiffs moved for additional discovery. (ECF No. 97.) Defendant opposed Plaintiffs’ motion.
Q. On September 6, 2019, the Court ruled that it would allow Plaintiffs to conduct discovery outside of the administrative record and referred the case Magistrate Judge Robert M. Spector to supervise discovery. (ECF No. 101.)
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R. On February 19, 2020, Defendant and Plaintiffs participated in a settlement conference before Judge Spector. (ECF No. 142.) Over the subsequent months, the Parties engaged in protracted and extensive settlement negotiations supervised by Judge Spector. (See ECF Nos. 145, 149, 154, 156, 158, 189, 162, 165, 167, 169, 176, 177, 178, 180, 181.)
S. On October 7, 2020, after extensive arm’s-length negotiations and exchange of multiple proposals, Plaintiffs and Defendants reached an agreement in principle to settle the Litigation.
T. Based on Class Counsel’s investigation and evaluation of the facts and law relating to the matters alleged in the pleadings, Plaintiffs and Class Counsel agreed to settle the Litigation pursuant to the provisions of this Stipulation after considering, among other things: (1) the substantial benefits available to the Class under the terms herein; (2) the attendant risks and uncertainty of litigation, especially in complex actions such as this, as well as the difficulties and delays inherent in such litigation; and (3) the desirability of consummating this Settlement Agreement to provide effective relief to the Class.
U. Defendant has denied and continues to deny each and all of the claims and contentions alleged by Plaintiffs. Defendant has expressly denied and continues to deny all charges of wrongdoing or liability against it arising out of any of the conduct, statements, acts or omissions alleged, or that could have been alleged, in this Litigation.
V. Nonetheless, Defendant has concluded that further defense of the Litigation would be protracted and expensive, and that it is desirable that the Litigation be fully and finally settled in the manner and upon the terms and conditions set forth in the Settlement Agreement. Defendant also has taken into account the uncertainty and risks inherent in any litigation.
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Defendant, therefore, has determined that it is desirable and beneficial to it that the Litigation be settled in the manner and upon the terms and conditions set forth in the Settlement Agreement.
W. This Stipulation effectuates the resolution of disputed claims and is for settlement purposes only. II. DEFINITIONS
As used in this Stipulation the following capitalized terms have the meanings specified below. Unless otherwise indicated, defined terms include the plural as well as the singular.
A. “Army Discharge Review Board” or “ADRB” means the U.S. Army board that reviews discharges of former soldiers on the basis of issues of propriety and equity. 10 U.S.C. § 1553; 32 C.F.R. § 581.2.
B. “Army Review Boards Agency” or “ARBA” means the U.S. Army agency that administers the ADRB.
C. “Applicant” means any individual that seeks a discharge review through submission of the Department of Defense Form 293 to the ADRB.
D. “Case Data” means any materials associated with an applicant’s case file, whether submitted by the applicant or obtained or produced by the ADRB in the course of an adjudication, that were used in ARBA’s effort to identify Special Cases.
E. “Class” or “Settlement Class” means members and former members of the Army, Army Reserve, and Army National Guard who served during the Iraq and Afghanistan era—the period between October 7, 2001 to the Effective Date of Settlement—who:
1. were discharged with a less-than Honorable service characterization (this includes GEN and OTH discharges from the Army, Army Reserve, and Army National Guard, but not Bad Conduct or Dishonorable discharges);
2. have not received discharge upgrades to Honorable; and
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3. 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.
F. “Class Counsel” means, collectively, the Jerome L. Frank Legal Services Organization of Yale Law School and the law firm of Jenner & Block LLP.
G. “Class Notice” means the notice substantially in the form attached to this Settlement Agreement as Exhibit “A”, to be provided to the Class as set forth in Section VI below.
H. “Court” means the United States District Court for the District of Connecticut. I. “DD-293” means the Department of Defense Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States. J. “Defendant” means Ryan D. McCarthy, Secretary of the U.S. Army, in his official capacity. K. “Effective Date of Settlement” means the date of the Final Approval Order. L. “Fairness Hearing” means the hearing to be held by the Court, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, to determine whether the settlement set forth in this Settlement Agreement should be approved. M. “Final Approval Order” means the order by the Court, after notice and the holding of the Fairness Hearing, granting approval of this Settlement Agreement under Rule 23(a) of the Federal Rules of Civil Procedure, substantially in the form attached to this Settlement Agreement as Exhibit “B”. N. “GEN” means a character of service of General (Under Honorable Conditions).
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O. “Group A Applicants” are defined below in Section IV.A. P. “Group B Applicants” are defined below in Section IV.B. Q. “Hagel Memo” means the memorandum issued by then-Secretary of Defense Chuck Hagel on September 3, 2014, directing all military record-correction boards to give “special consideration” to PTSD diagnoses by the U.S. Department of Veterans Affairs and “liberal consideration” to diagnoses of PTSD by civilian providers when adjudicating discharge upgrade applications submitted by veterans. R. “Honorable” means a character of service of Honorable. S. “Kurta Memo” means the memorandum issued by then-Acting Under Secretary of Defense for Personnel and Readiness A.M. Kurta on August 25, 2017, issuing additional guidance clarifying that “[l]iberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions.” T. “Kurta Factors” means the four questions provided in the Kurta Memo regarding when requests for discharge relief is appropriate in Special Cases. (Kurta Memo, att. at 1.) U. “Litigation” means the lawsuit captioned Kennedy v. McCarthy, Case No. 16CV-02010 (D. Conn.). V. “Military Sexual Trauma” or “MST” means physical assault of a sexual nature, battery of a sexual nature, or sexual harassment that occurred during military service. W. “Other Behavioral Health” or “OBH” means a behavioral health condition other than PTSD or TBI and unrelated to MST. X. “Other Than Honorable” or “OTH” means a character of service of Other Than Honorable.
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Y. “Person” means a natural person, individual, corporation, partnership, association, or any other type of legal entity.
Z. “Plaintiffs” means the class representatives Stephen M. Kennedy and Alicia J. Carson, on behalf of themselves and each of the Class members.
AA. “Preliminary Approval Order” means the “Order Preliminarily Approving Class Action Settlement, Conditionally Certifying the Settlement Class, Providing For Notice and Scheduling Order,” substantially in the form of Exhibit “C” attached hereto, which, among other things, preliminarily approves this Stipulation and provides for notification to the Settlement Class and sets the schedule for the Fairness Hearing.
BB. “PTSD” means Post-Traumatic Stress Disorder. CC. “Settled Claims” means all claims for relief that were brought on behalf of Class members based on the facts and circumstances alleged in the Amended Complaint (ECF No. 11). DD. “Special Cases” means any application for a discharge upgrade or change in narrative reason for separation that includes a diagnosis or allegation of, or evidence or allegations of symptoms of, PTSD, TBI, MST, or OBH. EE. “Stipulation and Agreement of Settlement” or “Stipulation” or “Settlement Agreement” means this agreement, including its attached exhibits (which are incorporated herein by reference), duly executed by Class Counsel and counsel for Defendant. FF. “TBI” means Traumatic Brain Injury. III. CERTIFICATION OF THE SETTLEMENT CLASS The Parties agree that the Settlement Class shall be conditionally certified, in accordance with the terms of this Settlement Agreement, solely for purposes of effectuating the settlement embodied in this Settlement Agreement. The Settlement Class differs from the class certified by
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the Court on December 21, 2018 only in that it sets the end date of the Class as the Effective Date of Settlement. IV. SETTLEMENT RELIEF
A. Reconsideration of 2011-2020 Applications 1. The ADRB will automatically reconsider its decisions that meet all of the
following three criteria: (a) Special Cases, (b) issued on or after April 17, 2011 until the Effective Date of Settlement, (c) whose grant state indicates the applicant did not receive the full relief they requested. The applicants who are the subject of these decisions are defined here as Group A Applicants.
2. To identify Group A Applicants, Defendant will conduct an electronic search of ADRB data to identify individuals whose record “grant state” indicates they did not receive the full relief that they requested, and whose Case Data raises PTSD, TBI, MST, or OBH. Defendant has already identified about 3,500 decisions for reconsideration through this search algorithm, and will reconsider those applications as well as others that it finds after completing its searches.
3. Defendant will send a notice, in the form of Exhibit “D”, to all Group A Applicants at their last known address on file with ARBA. That notice, as laid out in Exhibit D, will state that the ADRB will reconsider each case without a need for further responses from the applicant; state that if the applicant wishes to supplement their application, they should submit supplemental evidence within 60 days of the notice; state that submitting medical evidence in support of the application benefits the applicant; and include information regarding available legal and medical services.
4. Defendant will bear the cost of sending a notice in the form of Exhibit D to Group A Applicants by mail and of posting said notice to its website. Defendant will mail the
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notice to Group A Applicants within 120 days of the Effective Date of Settlement. Defendant will also publicly post the notice on ARBA’s website https://arba.army.pentagon.mil/adrboverview.html within 120 days of the Effective Date of Settlement.
5. The ADRB will make every effort to complete its reconsideration of Group A Applicants in a timely manner, and agrees to provide a report every six months of the number of Group A cases reconsidered and decided.
6. Defendant agrees to provide Plaintiffs with the names and last-known addresses (according to ARBA data) for applicants who (a) are not identified as Group A Applicants by the ADRB; and (b) whose cases were either denied or only granted partial relief by the ADRB between April 17, 2011 and September 4, 2014. These names and addresses will be subject to the Protective Order in effect for this Litigation, and will be provided to Plaintiffs within 90 days of the Effective Date of Settlement. Plaintiffs will send a notice, in the form of Exhibit “E”, to individuals on this list of names and addresses, informing them of their right to reapply and referring to the Class Notice. Plaintiffs will bear the cost of mailing notice in the form of Exhibit E. The notices sent by Plaintiffs will not include the name of any of Plaintiffs’ counsel, including on any mailing information (e.g., return address, non-profit mailing indicia).
B. Notice of Reapplication Rights for 2001-2011 Applicants 1. Defendant agrees to facilitate mailing notices to the last known addresses
of ADRB applicants for whom the ADRB’s decisions meet all of the following three criteria: (a) are Special Cases, (b) were issued between October 7, 2001 and April 16, 2011, and (c) whose grant state indicates they did not receive the full relief they requested. The applicants who are the subject of these decisions are defined here as Group B Applicants.
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2. To identify Group B Applicants, the ADRB will conduct an electronic search of ADRB data to identify individuals whose record “grant state” indicates they did not receive the full relief that they requested, and whose Case Data raises PTSD, TBI, MST, or OBH. For most cases in the 2001–2004 timeframe, the only grant states recorded were “grant” or “deny.” For these cases, “deny” will be used as the grant state indicating the applicant did not receive the full relief they requested. Defendant will provide the names of Group B Applicants from October 7, 2001 through April 16, 2011 within 90 days of the Effective Date of Settlement.
3. Defendant will provide the names and last known addresses (according to ARBA data) of Group B Applicants to Plaintiffs. Plaintiffs will then mail a notice in the form of Exhibit “F” to Group B Applicants. That notice, as laid out in Exhibit F, will state that the applicant may reapply to the ADRB, or to the ABCMR if the applicant’s discharge date is beyond the ADRB 15-year statute of limitations, 10 U.S.C. § 1553, for reconsideration of their case; state that should the applicant wish to supplement their application, they will have the opportunity to do so; state that submitting medical evidence in support of the application benefits the applicant; include information regarding available legal and medical services; and refer to the Class Notice. Plaintiffs will bear the cost of mailing this notice to Group B Applicants, paid out of the attorneys’ fees and costs set forth in V(A) below. The notices sent by Plaintiffs will not include the name of any of Plaintiffs’ counsel, including on any mailing information (e.g., return address, non-profit mailing indicia).
C. Online Notice of Reapplication Rights for 2001-2011 Applicants and Reconsideration for 2011-2020 Applicants
1. Defendant will post notice of reapplication rights for 2001-2011 Applicants and reconsideration for 2011-2020 Applicants, in the form of Exhibit “G”, on its
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website, including at https://arba.army.pentagon.mil/adrb-overview.html, https://arba.army.pentagon.mil/adrb-faq.html, within 45 days of the Effective Date of Settlement.
D. Revised Decisional Documents & Procedures 1. The Army agrees to adopt the following language and procedure, to be
incorporated as quoted below into the Military Review Boards Standard Operating Procedures: If the Board concludes that there is insufficient evidence per the four factors in paragraph two (2) of the Kurta Memo (“Kurta Factors”), including that the evidence in mitigation does not outweigh the severity of misconduct, so as to grant a full upgrade to Honorable in any Special Case, the Board must, in the decision document sent to the veteran (a) respond to each of the applicant’s contentions; (b) describe the evidence on which it relied on consideration of each of the applicable Kurta Factors; (c) explain why it decided against the veteran with respect to each applicable Kurta Factor; (d) ensure it draws a rational connection between facts found and conclusions drawn; and, (e) distinguish any prior Board decisions cited by the applicant in accordance with applicable law and regulations. 2. The Army will revise processing language in the ADRB’s decisional
document template to include the Kurta Factors, consistent with the above modifications to the Military Review Boards Standard Operating Procedures.
3. The Army will consider (a) issuing a guidance memo describing the revised Standard Operating Procedure requirements stated above and/or (b) revising the format of the ADRB voting sheet to address the same. The Army will inform Class Counsel regarding any final determination made to issue or not issue any guidance memo or to revise or not revise any ADRB voting sheet after consideration made in accordance with this paragraph.
E. Universal Option for Telephonic Personal Appearance Boards 1. Defendant will complete implementation of a Telephonic Personal
Appearance Board Program for the ADRB within 18 months of the Final Approval Order, available to all applicants who request a Personal Appearance hearing. Applicants will be
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invited to opt-in to a telephonic ADRB hearing in the letter acknowledging receipt of their DD293 application. Applicants will have an opportunity to participate in telephonic hearings from their personal residences, or other location of their own choice.
2. At each of six, twelve, and eighteen months after the Effective Date of Settlement, the Army shall report to the Court and to Plaintiffs its progress in implementing the Telephonic Personal Appearance Board Program. The report shall include, but is not limited to: (a) steps the Army has taken, is taking, and will take to facilitate applicants’ access to telephonic personal appearance with minimal, if any, travel; (b) steps the Army has taken, is taking, and will take to enable applicants to access telephonic hearings year-round; (c) the number of telephonic hearings completed during the prior six months; and (d) the location of hearings not chosen by the applicant, and the number of hearings in those locations.
F. Training 1. The Army agrees to conduct annual training for ADRB members and staff
specifically tailored to Special Cases. 2. This training will include changes made as a result of this Settlement
Agreement, including training on the revised Military Review Boards Standard Operating Procedures.
G. Notice for New Applications 1. For all discharge upgrade applications submitted to the ADRB after the
Effective Date of Settlement, when the Board writes the applicant to acknowledge receipt of a submitted DD-293, the Board letter shall inform applicants of how to find legal counsel and Veterans Service Organizations to assist with their application. The notice shall include a link for Stateside Legal, www.statesidelegal.org, and a link to the Department of Veterans Affairs
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“Directory of Veterans Service Organizations,” https://www.va.gov/vso/. This list of resources shall be updated by the Board as needed.
2. The notice shall also (a) state that the applicant may seek out and provide additional medical evidence of their Special Case condition, and state that it is to applicant’s benefit to provide medical evidence for the review process; (b) invite the applicant to provide such evidence within 45 days of the date the notice is sent; and (c) advise the applicant of their right under 38 U.S.C. § 1720I to obtain mental health evaluation and treatments at Department of Veterans Affairs facilities. Defendant agrees that an ADRB applicant’s failure to submit additional evidence shall not prejudice the applicant’s ADRB application, and shall not be referenced for the purpose of evaluating the applicant’s claims. V. ATTORNEYS’ FEES AND COSTS
With respect to the issue of attorneys’ fees and costs incurred by Plaintiffs and the payment thereof by Defendant, the Parties agree to the following as a complete resolution of the issue.
A. Defendant agrees to pay $185,000 in attorneys’ fees and costs to Class Counsel. B. Defendant agrees to submit payment of attorneys’ fees to Class Counsel within 90 days of either (a) the Effective Date of Settlement, or (b) Defendant’s receipt of Class Counsel information (including banking information) necessary to effectuate the attorneys’ fee transfer, whichever occurs later. VI. NOTICE AND APPROVAL PROCEDURE A. Preliminary Approval. As soon as practicable after the execution of this Agreement, the Parties shall jointly move for a Preliminary Approval Order, substantially in the form of Exhibit C, preliminarily approving this Settlement Agreement and this settlement to be fair, just, reasonable, and adequate, approving the Class Notice to the Class members as
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described infra Section VI.C, and setting a Fairness Hearing to consider the Final Approval Order and any objections thereto.
B. Effect of the Court’s Denial of the Agreement. This Settlement Agreement is subject to and contingent upon Court approval under Rule 23(e) of the Federal Rules of Civil Procedure. If the Court rejects this Agreement, in whole or in part, or otherwise finds that the Agreement is not fair, reasonable, and adequate, Parties agree to meet and confer to work to resolve the concerns articulated by the Court and modify the agreement accordingly. Except as otherwise provided herein, in the event the Settlement Agreement is terminated or modified in any material respect or fails to become effective for any reason, then the Settlement Agreement shall be without prejudice and none of its terms shall be effective or enforceable; the Parties to this Settlement Agreement shall be deemed to have reverted to their respective status in the Action as of the date and time immediately prior to the execution of this Settlement Agreement; and except as otherwise expressly provided, the Parties shall proceed in all respects as if this Settlement Agreement and any related orders had not been entered. In the event that the Settlement Agreement is terminated or modified in any material respect, the Parties shall be deemed not to have waived, not to have modified, or not be estopped from asserting any additional defenses or arguments available to them. In such event, neither this Settlement Agreement nor any draft thereof, nor any negotiation, documentation, or other part or aspect of the Parties’ settlement discussions, nor any other document filed or created in connection with this settlement, shall have any effect or be admissible in evidence for any purpose in the Litigation or in any other proceeding, and all such documents or information shall be treated as strictly confidential and may not, absent a court order, be disclosed to any person other than the Parties’ counsel, and in any event only for the purposes of the Litigation.
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C. Notice for Fairness Hearing. Not later than 14 business days after entry of the Preliminary Approval Order (unless otherwise modified by the Parties or by order of the Court), the Parties shall effectuate the following Class Notice.
1. Plaintiffs shall post the Class Notice substantially in the form of Exhibit A, as well as a copy of the Settlement Agreement, on www.kennedysettlement.com.
2. The Army shall post the Class Notice substantially in the form of Exhibit A, including a copy of the Settlement Agreement, on https://arba.army.pentagon.mil/adrboverview.html.
3. The Army shall issue a press release that describes the Class Notice and provides a link to the website listed in Section VI.C.2.
D. Objections to Settlement. On or before 21 calendar days before the Fairness Hearing, in the above-described manner, any Class member who wishes to object to the fairness, reasonableness, or adequacy of this Settlement Agreement or the settlement contemplated herein must file with the Clerk of Court and serve on the Parties a statement of objection setting forth the specific reason(s), if any, for the objection, including any legal support or evidence in support of the objection, grounds to support their status as a Class member, and whether the Class member intends to appear at the Fairness Hearing. The Parties will have 14 days following the objection period in which to submit answers to any objections that are filed. The notice to the Clerk of the Court shall be sent to: Clerk of the Court, U.S. District Court of Connecticut, 141 Church Street, New Haven, CT 06510; and both envelope and letter shall state: “Attention: Kennedy v. McCarthy, No. 3:16-cv-2010 (D. Conn.).” Copies shall also be served on counsel for Plaintiffs and counsel for Defendants.
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E. Fairness Hearing. At the Fairness Hearing, as required for Final Approval of the settlement pursuant to Federal Rule of Civil Procedure 23(e)(2), the Parties will jointly request that the Court approve the settlement as final, fair, reasonable, adequate, and binding on the Class, all Class members, and all Plaintiffs.
F. Opt-Outs. The Parties agree that the Settlement Class shall be certified in accordance with the standards applicable under Rule 23(b)(2) of the Federal Rules of Civil Procedure and that, accordingly, no Settlement Class member may opt out of any of the provisions of this Settlement Agreement.
G. Final Approval Order and Judgment. At the Fairness Hearing, the Parties shall jointly move for entry of the Final Approval Order, substantially in the form of Exhibit B, granting final approval of this Agreement to be final, fair, reasonable, adequate, and binding on all Class members; overruling any objections to the Settlement Agreement; ordering that the terms be effectuated as set forth in this Settlement Agreement; and giving effect to the releases as set forth in Section VII. VII. RELEASES
A. As of the Effective Date, the Plaintiffs and the Class members, on behalf of themselves; their heirs, executors, administrators, representatives, attorneys, successors, assigns, agents, affiliates, and partners; and any persons they represent, by operation of any final judgment entered by the Court, shall have fully, finally, and forever released, relinquished, and discharged the Defendant of and from any and all of the Settled Claims, and the Plaintiffs and the Class members shall forever be barred and enjoined from bringing or prosecuting any Settled Claim against any of the Defendants, and all of their past and present agencies, officials, employees, agents, attorneys, and successors. This Release shall not apply to claims that arise or accrue after the effective date of Agreement.
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Case 3:16-cv-02010-CSH Document 198-2 Filed 11/17/20 Page 19 of 20 B. In consideration of the terms and conditions set forth herein, Plaintiffs hereby release and forever discharge Defendant, and all of their past and present agencies, officials, employees, agents, attorneys, successors, and assigns from any and all obligations, damages, liabilities, causes of action, claims, and demands of any kind and nature whatsoever, whether suspected or unsuspected, arising in law or equity, arising from or by reason of any and all known, unknown, foreseen, or unforeseen injuries, and the consequences thereof, resulting from the facts, circumstances and subject matter that gave rise to the Litigation, including all claims that were asserted or that Plaintiffs could have asserted in the Litigation.
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AGREED TO:
FOR PLAINTIFFS:
Susan J. Kohlmann, pro hac vice Jeremy M. Creelan, pro hac vice Jacob L. Tracer, pro hac vice Ravi Ramanathan, pro hac vice Jenner & Block LLP 919 Third Avenue New York, NY 10022-3908 Tel: (212) 891-1678 JCreelan@jenner.com

By:
Joshua P. Britt, Law Student Intern Rebecca Brooks, Law Student Intern Andrew C. DeGuglielmo, Law Student Intern Deepankar Gagneja, Law Student Intern Renée A. Burbank, ct30669 Dana Montalto, ct30941 Michael J. Wishnie, ct27221 Veterans Legal Services Clinic Jerome N. Frank Legal Services Organization Yale Law School P.O. Box 209090 New Haven, CT 06520-9090 Tel: (203) 432-4800 michael.wishnie@ylsclinics.org
Counsel for Plaintiffs

FOR DEFENDANTS:

JOHN H. DURHAM UNITED STATES ATTORNEY

By: /s/ Natalie Elicker

_

Natalie Nicole Elicker

Assistant U.S. Attorney

Kyle Montague Meisner Major, U.S. Army

Counsel for Defendant

Case 3:16-cv-02010-CSH Document 198-3 Filed 11/17/20 Page 1 of 7

ATTENTION ALL FORMER MEMBERS OF THE ARMY, ARMY RESERVE, AND ARMY NATIONAL GUARD WHO HAVE SERVED SINCE OCTOBER 7, 2001, AND WHO WERE DISCHARGED WITH A LESS-THAN-HONORABLE SERVICE CHARACTERIZATION WHILE HAVING A DIAGNOSIS OF, OR SHOWING SYMPTOMS ATTRIBUTABLE TO, PTSD OR PTSDRELATED CONDITIONS:

YOUR RIGHTS MAY BE AFFECTED BY A PROPOSED SETTLEMENT IN THE KENNEDY CLASS ACTION.

PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 23(e) YOU ARE NOTIFIED AS FOLLOWS:

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT --------------------------------------------------STEPHEN M. KENNEDY and ALICIA J. CARSON, et al.,

Plaintiffs,

No. 3:16-cv-2010-CSH

-against-

RYAN D. McCARTHY, Acting Secretary of the Army,

Defendant. ---------------------------------------------------

BACKGROUND

In 2017, plaintiffs Stephen Kennedy and Alicia Carson (“Plaintiffs”) filed an Amended Complaint alleging that since the start of military operations in Iraq and Afghanistan, the Army discharged thousands of people with Other Than Honorable (“OTH”) or General (Under Honorable Conditions) (“GEN”) statuses due to misconduct attributable to post-traumatic stress disorder (“PTSD”), traumatic brain injury (“TBI”), military sexual trauma (“MST”), and other
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behavioral health conditions (“OBH”). Specifically, the Amended Complaint alleged that upon their return from Iraq and Afghanistan, veterans with service-connected PTSD, TBI, and other related mental health conditions received OTH and GEN discharges and were systematically denied status upgrades by the Army Discharge Review Board (“ADRB”).
The Amended Complaint further alleged that these veterans were denied status upgrades even as scientific and medical understandings of PTSD and TBI advanced and explained how these conditions can affect Soldiers’ behavior. Plaintiffs further alleged that, despite the 1944 statute creating the ADRB, longstanding regulations, and binding Department of Defense guidance that clarified the ADRB’s obligation to give liberal consideration to the applications of former Soldiers who incurred these mental health conditions, the ADRB systematically failed to apply appropriate decisional standards or provide veterans with due consideration, in violation of the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment.
Defendant has denied and continues to deny each and all of the claims and contentions alleged by Plaintiffs. Defendant has expressly denied and continues to deny all charges of wrongdoing or liability against it arising out of any of the conduct, statements, acts or omissions alleged, or that could have been alleged by Plaintiffs. The Defendant specifically denies the allegations in the Amended Complaint, including any allegation that the Army violated the APA or failed to follow appropriate procedures, that the allegedly relevant DOD guidance was binding on the ADRB, that the Army otherwise acted arbitrarily and capriciously, that the Plaintiff’s raised an actionable Due Process/Fifth Amendment claim, and all other allegations of wrongdoing.
On December 21, 2018, the Court certified a class in this civil action (“The Plaintiff Class”) defined as follows:
“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
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(c) have diagnoses of PTSD or PTSD-related conditions or record[s] 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 Court named Plaintiffs as class representatives in this civil action and the Jerome L. Frank Legal Services Clinic of Yale Law School and Jenner & Block LLP as Class Counsel (“Class Counsel”). Throughout 2019 and 2020, Plaintiffs and Defendant engaged in motion practice and discovery, and eventually settlement negotiations supervised by the Court. After extensive arm’s-length negotiations and exchanges of multiple proposals, Plaintiffs and Defendant reached an agreement in principle (“Joint Settlement Agreement”) on November 17, 2020, to settle the claims in the Amended Complaint. The Joint Settlement Agreement, if approved by the Court, will settle the claims in the Amended Complaint in the manner and upon the terms summarized and described below.
SUMMARY OF SETTLEMENT TERMS
The full text of the proposed Joint Settlement Agreement can be viewed at https://arba.army. pentagon.mil/adrb-overview.html.
Automatic Reconsideration for Certain 2011-2020 Applicants and Reapplication Rights for Certain 2001-2011 Applicants
• The ADRB will automatically reconsider its decisions that meet all of the following three criteria: (a) Special Cases (cases that include a diagnosis or allegation of, or evidence or allegations of symptoms of, PTSD, TBI, MST, or OBH), (b) issued on or after April 17, 2011 until the Effective Date of Settlement, (c) whose grant state indicates the applicant did not receive the full relief they requested. The Defendant will identify these applicants by conducting an electronic search of ADRB data to identify individuals whose record “grant state” indicates they did not receive the full relief that they requested, and whose Case Data raises PTSD, TBI, MST, or OBH.
• The Army will send notice of this automatic reconsideration process to all eligible applicants, inviting them to submit additional evidence within 60 days of the notice date
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to ensure that new evidence is considered when their application is reviewed and providing them with referral information for potential free legal representation. This notice will be posted to https://arba.army.pentagon.mil/adrb-overview.html and https://www.kennedysettlement.com, and sent to eligible veterans within 120 days of the date the settlement is approved. • Previous applicants to the ADRB who are not eligible for automatic reconsideration according to the paragraph above, and whose cases were either denied or only granted partial relief by the ADRB between April 17, 2011, and September 4, 2014, are eligible to reapply to the ADRB. Plaintiff will send notice to these applicants informing them of their right to reapply, including referral information for potential free legal representation. • Previous applicants to the ADRB whose applications (a) are Special Cases, (b) were issued between October 7, 2001 and April 16, 2011, and (c) whose grant state indicates they did not receive the full relief they requested, have the right to apply anew to the ADRB or, if the applicant was discharged more than 15 years ago, to the Army Board for Correction of Military Records. This is because the ADRB’s statute of limitations is 15 years. The Defendant will identify these applicants by conducting an electronic search of ADRB data to identify individuals whose record “grant state” indicates they did not receive the full relief that they requested, and whose Case Data raises PTSD, TBI, MST, or OBH. For most cases in the 2001–2004 timeframe, the only grant states recorded were “grant” or “deny.” For these cases, “deny” will be used as the grant state indicating the applicant did not receive the full relief they requested. • The Army will provide contact information to the Plaintiffs for previous applicants eligible to reapply to the ADRB, and Plaintiffs will send notice to these previous applicants providing referral information for potentially free legal representation and informing them of their right to reapply. • Defendant will post notice of reapplication rights for 2001-2011 applicants and reconsideration for 2011-2020 applicants on its website, including at https://arba.army.pentagon.mil/adrb-overview.html and https://arba.army.pentagon.mil/ adrb-faq.html, within 45 days of the date the settlement is approved.
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Revised Decisional Documents & Procedures
• Defendant agrees to incorporate new language and procedures into the Military Review Boards Standard Operating Procedures that governs applications including a diagnosis or allegation of, or evidence or allegations of symptoms of, PTSD, TBI, MST, or OBH. If the ADRB finds that there is insufficient evidence per the four factors (“Kurta Factors) set forth in paragraph two (2) of the Kurta Memorandum issued on August 25, 2017 to warrant a grant of a full upgrade to Honorable, including that the evidence in mitigation does not outweigh the severity of misconduct in these applications, the Board must, in the decisional document sent to the applicant: o respond to each of the applicant’s contentions; o describe the evidence on which it relied on consideration of each of the applicable Kurta Factors; o explain why it decided against the veteran with respect to each applicable Kurta Factor; o ensure it draws a rational connection between facts found and conclusions drawn; and o distinguish any prior Board decisions cited by the applicant in accordance with applicable law and regulations.
• Defendant will revise the decisional document template used by the ADRB to reflect the new language and procedures and will consider revising the ADRB voting sheet and/or issuing a guidance memo explaining these new procedures.
• Defendant will conduct annual training for ADRB members and staff tailored to applications that include a diagnosis or allegation of, or evidence or allegations of symptoms of, PTSD, TBI, MST, or OBH. This training will include information on the new procedures in the Joint Settlement Agreement and the telephonic hearings program.
Universal Option for Telephonic Personal Appearance Board Program
• Defendant will implement a Telephonic Personal Appearance Board Program for the ADRB within 18 months of the final approval of the settlement. All applicants who request a Personal Appearance hearing will be eligible for this telephonic program and
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may elect to participate in a telephonic hearing from their personal residences or other location of their own choice.
Notice for New Applications
• For all discharge upgrade applications submitted to the ADRB after the date the settlement is approved, when the Board writes the applicant to acknowledge receipt of their application, the Board letter will inform the applicant of how to find legal counsel and Veterans Service Organizations to assist with their application.
• This notice will also encourage applicants to seek out and provide additional evidence related to an applicant’s possible diagnosis or allegation of, or evidence or allegations of symptoms of, PTSD, TBI, MST, or OBH. The notice will provide information helping applicants to submit this additional evidence and informing them that they may be able to obtain mental health evaluation and treatment at Department of Veterans Affairs facilities.
Attorneys’ Fees and Costs
• If the settlement is approved by the Court, defendant agrees to pay $185,000 in attorneys’ fees and costs to Class Counsel. A portion of these fees will be used by Class Counsel to pay for the production and mailing of notices to some members of the class informing them of their right to reapply to the ADRB.
THE SETTLEMENT HEARING
A. Before the settlement can become final, it must be approved by the Court. Any affected person may comment for or against the proposed settlement.
B. In order to give class members an opportunity to express their comments in support or objection to the settlement, a hearing will be held before the Hon. Charles S. Haight, Jr., via the videoconferencing software Zoom on [date] at [time]. Class members or their attorneys can attend the hearing using the following link, [Zoom link], or by dialing in to [phone number]. The meeting ID for the hearing is [XXX] and the passcode is [YYY].
C. If you wish to comment for or against the settlement, you must serve by hand, mail, or e-mail your written objection and support papers, including any legal support for your objection
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and your status as a class member, upon Class Counsel: Michael J. Wishnie, Jerome N. Frank Legal Services Organization, Yale Law School, P.O. Box 209090, New Haven, CT 06520-9090, kennedy.settlement@yale.edu; and Defendant’s Counsel: Natalie N. Elicker, U.S. Attorney’s Office for the District of Connecticut, 157 Church St, 25th Floor, New Haven, CT 06510, Natalie.Elicker@usdoj.gov; and also file these documents with the Clerk of the Court: United States District Court for the District of Connecticut, 141 Church Street, New Haven, CT 06510. All written objections must be received by [21 calendar days before hearing date]. Objections or comments will not be considered by the Court unless you have given notice in the manner described. If you intend to object to the Settlement and desire to present evidence at the fairness hearing, you must include in your written objections the identity of any witnesses you may call to testify and the exhibits you intend to introduce into evidence at the fairness hearing. If you fail to object in the manner described you shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to any aspect of the Settlement, unless otherwise ordered by the Court. You may present your comments yourself or you may have an attorney present them for you. You are invited to attend the hearing whether or not you have given notice that you want to comment on the settlement.
D. This settlement, if approved by the Court, will be a full and final adjudication of the issues raised on behalf of the plaintiff class in the Amended Complaint and of any and all claims resulting from the facts, circumstances and subject matter that gave rise to the Amended Complaint and that were known to Class Counsel on the date the settlement is approved.

Dated:

New Haven, CT [Date of signature]

_____________________________ Hon. Charles S. Haight, Jr. Senior United States District Judge

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Case 3:16-cv-02010-CSH Document 198-4 Filed 11/17/20 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHEN M. KENNEDY and ALICIA J. CARSON, on behalf of themselves and all others similarly situated,

No. 3:16-cv-2010-CSH

Plaintiffs,

v.

RYAN D. McCARTHY, Acting Secretary of the Army,

Defendant.

[PROPOSED] FINAL ORDER AND JUDGMENT WHEREAS: A. As of ____________ ______, ________, Stephen M. Kennedy and Alicia J. Carson (“Class Representatives”), individually and on behalf of themselves and a class of persons similarly situated (the “Plaintiffs”), on the one hand, and Ryan D. McCarthy, in his official capacity as Secretary of the U.S. Army (the “Army”) (“Defendant”), on the other, entered into a Stipulation and Agreement of Settlement (the “Stipulation” or “Settlement Agreement”) in the above-titled litigation (the “Action”), which is subject to review under Rule 23 of the Federal Rules of Civil Procedure and which, together with the exhibits thereto, sets forth the terms and conditions of the proposed settlement of the Action and the claims alleged in the Amended Complaint filed on April 17, 2017 (Dkt. No. 11) on the merits and with prejudice (the “Settlement”); B. Pursuant to the Order Granting Preliminary Approval of Class Action Settlement, entered ___________, 2020 (the “Preliminary Approval Order”), the Court scheduled a hearing

Case 3:16-cv-02010-CSH Document 198-4 Filed 11/17/20 Page 2 of 6
for __________________, _______, at ___:____ ___.m. (the “Fairness Hearing”) to, among other things: (i) determine whether the proposed Settlement of the Action on the terms and conditions provided for in the Stipulation is fair, reasonable, and adequate, and should be approved by the Court; and (ii) determine whether a judgment as provided for in the Stipulation should be entered;
C. The Court ordered that the Class Notice, substantially in the forms attached to the Stipulation as Exhibit A, be provided Settlement Class members as described in the Stipulation. The Class Notice advised potential Settlement Class members of the date, time, place, and purpose of the Fairness Hearing. The Class Notice further advised that any objections to the Settlement were required to be filed with the Court and served on counsel for the Parties such that they were received by ____________ ___, _______;
D. The provisions of the Preliminary Approval Order as to notice were complied with;
E. On ____________ ____, _____, Plaintiffs moved for final approval of the Settlement, as set forth in the Preliminary Approval Order. The Fairness Hearing was duly held before this Court on _______________ ___, ________, at which time all interested Persons were afforded the opportunity to be heard; and
F. This Court has duly considered Plaintiffs’ motion, the affidavits, declarations, memoranda of law submitted in support thereof, the Stipulation, and all of the submissions and arguments presented with respect to the proposed Settlement;
NOW, THEREFORE, after due deliberation, IT IS ORDERED, ADJUDGED AND DECREED that:
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1. This Judgment incorporates and makes a part hereof the Stipulation filed with the Court on ___________ ____, 2020. Capitalized terms not defined in this Judgment shall have the meaning set forth in the Stipulation.
2. This Court has jurisdiction over the subject matter of the Action and over all parties to the Action, including all Settlement Class members.
3. The Court hereby affirms its determinations in the Preliminary Approval Order and finally certifies, for purposes of the Settlement only, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, the Settlement Class of:
Members and former members of the Army, Army Reserve, and Army National Guard who served during the Iraq and Afghanistan era—the period between October 7, 2001 to the Effective Date of Settlement—who (1) were discharged with a less-than-Honorable service characterization
(this includes GEN and OTH discharges from the Army, Army Reserve, and Army National Guard, but not Bad Conduct or Dishonorable discharges); (2) have not received discharge upgrades to Honorable; and (3) 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. 4. Pursuant to Fed. R. Civ. P. 23, and for purposes of the Settlement only, the Court hereby re-affirms its determinations in the Preliminary Approval Order and finally certifies Stephen M. Kennedy and Alicia J. Carson as Class Representatives for the Settlement Class; and finally appoints the Jerome L. Frank Legal Services Organization of Yale Law School and the law firm of Jenner & Block LLP as Class Counsel for the Settlement Class. 5. The Court finds that the publication of the Class Notice (i) complied with the Preliminary Approval Order; (ii) constituted the best notice practicable under the circumstances;
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(iii) constituted notice that was reasonably calculated to apprise Settlement Class members of the effect of the Settlement, of Class Counsel’s request for an award of attorney’s fees and payment of litigation expenses incurred in connection with the prosecution of the Action, of Settlement Class members’ right to object to the Settlement, and of their right to appear at the Fairness Hearing; (iv) constituted due, adequate, and sufficient notice to all Persons entitled to receive notice of the proposed Settlement; and (v) satisfied the notice requirements of Rule 23 of the Federal Rules of Civil Procedure and the United States Constitution (including the Due Process Clause).
6. [There have been no objections to the Settlement.] 7. In light of the benefits to the Settlement Class, the complexity, expense and possible duration of further litigation against Defendant, the risks of establishing liability and damages, and the costs of continued litigation, the Court hereby fully and finally approves the Settlement as set forth in the Stipulation in all respects, and finds that the Settlement is, in all respects, fair, reasonable and adequate, and in the best interests of Class Representatives and the Settlement Class. This Court further finds the Settlement set forth in the Stipulation is the result of arm’s-length negotiations between experienced counsel representing the interests of Class Representatives, the Settlement Class, and Defendant. The Settlement shall be consummated in accordance with the terms and provisions of the Stipulation. 8. The Amended Complaint filed on April 17, 2017 (Dkt. No. 11) is dismissed in its entirety, with prejudice, and without costs to any Party, except as otherwise provided in the Stipulation.
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9. The Court finds that during the course of the Action, the Parties and their respective counsel at all times complied with the requirements of Rule 11 of the Federal Rules of Civil Procedure.
10. Upon the Effective Date of the Settlement and as specified in the Stipulation, Class Representatives and each and every other Settlement Class Member, on behalf of themselves and each of their respective heirs, executors, trustees, administrators, predecessors, successors, and assigns, shall be deemed to have fully, finally, and forever waived, released, discharged, and dismissed each and every one of the Settled Claims against the Defendant and shall forever be barred and enjoined from commencing, instituting, prosecuting, or maintaining any and all of the Settled Claims against the Defendant.
11. Each Settlement Class member is bound by this Judgment, including, without limitation, the release of claims as set forth in the Stipulation.
12. Defendant shall pay Class Counsel’s fees and costs in the amount of $185,000, as specified in the Stipulation. This amount does not include any time, if necessary, to enforce any breach of the Stipulation. The Court finds that this award is fair and reasonable. This payment shall be made in accordance with the timeline specified in the Stipulation.
13. Without further order of the Court, the Parties may agree to reasonable extensions of time to carry out any of the provisions of the Stipulation.
14. The Parties are hereby directed to consummate the Stipulation and to perform its terms.
15. Without affecting the finality of this Judgment in any way, this Court hereby retains continuing jurisdiction over: (i) implementation of the Settlement; (ii) the allowance, disallowance or adjustment of any Settlement Class member’s claim on equitable grounds; (iii)
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Case 3:16-cv-02010-CSH Document 198-4 Filed 11/17/20 Page 6 of 6 all parties for the purpose of construing, enforcing and administering the Settlement and this Judgment; and (vi) other matters related or ancillary to the foregoing. There is no just reason for delay in the entry of this Judgment and immediate entry by the Clerk of the Court is expressly directed. DATED this _______ day of ______________, _______
BY THE COURT: ______________________________ Honorable Charles S. Haight, Jr. UNITED STATES DISTRICT JUDGE
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Case 3:16-cv-02010-CSH Document 198-5 Filed 11/17/20 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

STEPHEN M. KENNEDY and ALICIA J. CARSON, on behalf of themselves and all others similarly situated,

No. 3:16-cv-2010-CSH

Plaintiffs,

v.

RYAN D. McCARTHY, Acting Secretary of the Army,

Defendant.

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
WHEREAS, as of ____________ ______, 2020, Stephen M. Kennedy and Alicia J. Carson (“Class Representatives”), individually and on behalf of themselves and a class of persons similarly situated (the “Plaintiffs”), on the one hand, and Ryan D. McCarthy, in his official capacity as Secretary of the U.S. Army (the “Army”) (“Defendant”), on the other, entered into a Stipulation and Agreement of Settlement (the “Stipulation” or “Settlement Agreement”) in the above-titled litigation (the “Action”), which is subject to review under Rule 23 of the Federal Rules of Civil Procedure and which, together with the exhibits thereto, sets forth the terms and conditions of the proposed settlement of the Action and the claims alleged in the Amended Complaint filed on April 17, 2017 (Dkt. No. 11) on the merits and with prejudice (the “Settlement”); and
WHEREAS, the Court has reviewed and considered the Stipulation and the accompanying exhibits; and
WHEREAS, the Parties to the Stipulation have consented to the entry of this order; and

Case 3:16-cv-02010-CSH Document 198-5 Filed 11/17/20 Page 2 of 7
WHEREAS, all capitalized terms used in this order that are not otherwise defined herein have the meanings defined in the Stipulation;
NOW, THEREFORE, IT IS HEREBY ORDERED, this _______ day of ____________, 2020 that:
1. The Court has reviewed the Stipulation and preliminarily finds the Settlement set forth therein to be fundamentally fair, reasonable, adequate, and in the best interests of the Settlement Class members, especially in light of the benefits achieved on behalf of them, the risks and delay inherent in litigation, and the limited amount of any potential recovery that could be shared by the Settlement Class members. Furthermore, the parties’ Settlement Agreement was the result of good-faith, arm’s-length negotiations between experienced counsel under the supervision of Magistrate Judge Robert M. Spector, and is without any obvious deficiencies.
2. Pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, the Court has made a preliminary determination to certify the following Settlement Class for the purposes of settlement only:
Members and former members of the Army, Army Reserve, and Army National Guard who served during the Iraq and Afghanistan era—the period between October 7, 2001 to the Effective Date of Settlement—who (1) were discharged with a less-than-Honorable service characterization
(this includes GEN and OTH discharges from the Army, Army Reserve, and Army National Guard, but not Bad Conduct or Dishonorable discharges); (2) have not received discharge upgrades to Honorable; and (3) 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.
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3. The Court finds and concludes that the prerequisites of class action certification under Rule 23 of the Federal Rules of Civil Procedure have been satisfied for the Settlement Class defined herein and for the purposes of the Settlement only, in that:
(a) the members of the Settlement Class are so numerous that joinder of all Settlement Class members is impracticable;
(b) there are questions of law and fact common to the Settlement Class members;
(c) the claims of the Class Representatives are typical of the Settlement Class’s claims;
(d) Class Representatives and Class Counsel have fairly and adequately represented and protected the interests of the Settlement Class;
(e) there are no conflicts of interest between the Class Representatives and members of the Settlement Class;
(f) the questions of law and fact common to Settlement Class members predominate over any individual questions; and
(g) a class action is superior to other available methods for the fair and efficient adjudication of this controversy.
4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for the purposes of the Settlement only, Stephen M. Kennedy and Alicia J. Carson are certified as Class Representatives. The Jerome L. Frank Legal Services Organization of Yale Law School and the law firm of Jenner & Block LLP are appointed as Class Counsel.
5. A hearing (the “Fairness Hearing”) pursuant to Rule 23(e) of the Federal Rules of Civil Procedure is hereby scheduled to be held before the Court on _______________________,
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at ___:____ [a.m. or p.m.] (a day at least sixty (60) days after the entry of this Order). At the Fairness Hearing, the Court will address: (a) whether to grant final approval to the Settlement as fair, reasonable, and adequate, and issue the Final Approval Order dismissing the Amended Complaint with prejudice and releasing the claims set forth in the Stipulation; (b) whether the Settlement Class should be finally certified for purposes of the Settlement only; (c) whether the relief provided to the Settlement Class for reconsideration and reapplication of discharge upgrade applications is fair, reasonable, and adequate; (d) whether to approve the Stipulation’s award of attorneys’ fees and costs; and (e) any other matters as the Court may deem appropriate.
6. The Court reserves the right to approve the Settlement with or without modification and with or without further notice to the Settlement Class of any kind. The Court may also adjourn the Fairness Hearing or modify any of the dates herein without further notice to members of the Settlement Class.
7. The Court finds that the distribution of the Class Notice attached as Exhibit A to the Stipulation in the manner set forth in the Stipulation is the best notice practicable under the circumstances, consistent with due process of law, and constitutes due and sufficient notice of this Order and the Settlement to all persons entitled thereto and is in full compliance with the requirements of Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs have also developed an extensive outreach strategy that includes a press conference and issuance of a press release, engagement with both traditional media outlets and social media, collaboration with key elected officials, and publicization of the settlement with veterans’ organizations and veterans advocates across the country. Defendant shall publicize the Settlement and Class Notice by issuing a press release of its own.
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8. Plaintiffs shall cause the Class Notice to be distributed to Settlement Class members in accordance with the terms of the Stipulation no later than fourteen (14) days after the entry of this Order.
9. Settlement Class members shall be bound by all orders, determinations and judgments in this Action concerning the Settlement, whether favorable or unfavorable.
10. Any Settlement Class member may appear in person or through counsel (at their own expense) at the Fairness Hearing and be heard in support of or in opposition to the fairness, reasonableness, and adequacy of the proposed Settlement, award of counsel fees, and the reimbursement of costs. The Court will consider any Settlement Class member’s objection to the Settlement only if such Settlement Class member has served by hand, mail, or e-mail their written objection and supporting papers (including any legal support or evidence in support of the objection and grounds to support their status as a Class member) such that they are received on or before twenty-one (21) calendar days before the Fairness Hearing, upon Class Counsel: Michael J. Wishnie, Jerome N. Frank Legal Services Organization, Yale Law School, P.O. Box 209090, New Haven, CT 06520-9090, kennedy.settlement@yale.edu; and Defendant’s Counsel: Natalie N. Elicker, U.S. Attorney’s Office for the District of Connecticut, 157 Church St, 25th Floor, New Haven, CT 06510, Natalie.Elicker@usdoj.gov; and has filed said objections and supporting papers with the Clerk of the Court, United States District Court for the District of Connecticut, 141 Church Street, New Haven, CT 06510. Any Settlement Class member who does not make his, her, or its objection in the manner provided for in the Class Notice shall be deemed to have waived such objection and shall forever be foreclosed from making any objection to any aspect of the Settlement, unless otherwise ordered by the Court. Attendance at the Fairness Hearing is not necessary, however, persons wishing to be heard orally in opposition
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to the approval of the Settlement are required to indicate in their written objection their intention to appear at the hearing. Persons who intend to object to the Settlement and desire to present evidence at the Fairness Hearing must include in their written objections the identity of any witnesses they may call to testify and exhibits they intend to introduce into evidence at the Fairness Hearing.
11. Settlement Class members do not need to appear at the hearing or take any other action to indicate their approval.
12. Pending final determination of whether the Settlement should be approved, Class Representatives, all Settlement Class members, and each of them, and anyone who acts or purports to act on their behalf, shall not institute, commence or prosecute any action which asserts the Settled Claims in the Stipulation against the Defendant.
13. Class Counsel shall file and serve its application for final approval of the Settlement no later than seven (7) days prior to the date of the Fairness Hearing.
14. If the Settlement fails to become effective as defined in the Stipulation or is terminated, then both the Stipulation, including any amendment(s) thereof, except as expressly provided in the Stipulation, and this Preliminary Approval Order shall be null and void, of no further force or effect, and without prejudice to any Party, and may not be introduced as evidence or used in any actions or proceedings by any person or entity against the Parties, and the Parties shall be deemed to have reverted to their respective litigation positions as of the date and time immediately prior to the execution of the Stipulation.
15. The Court retains exclusive jurisdiction over the Action to consider all further matters arising out of or connected with the Settlement.
DATED this _______ day of ______________, 2020 6

Case 3:16-cv-02010-CSH Document 198-5 Filed 11/17/20 Page 7 of 7 BY THE COURT: ______________________________ Honorable Charles S. Haight, Jr. UNITED STATES DISTRICT JUDGE
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Case 3:16-cv-02010-CSH Document 198-6 Filed 11/17/20 Page 1 of 3
DEPARTMENT OF THE ARMY
ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385
ARLINGTON, VA 22202-3531

GROUP A [applicant name] [applicant address]

[date]

Dear Sir or Madam:
You are receiving this letter as part of a settlement agreement in a class-action lawsuit filed in federal court in Connecticut, Kennedy v. McCarthy. The Army Review Boards Agency (ARBA) has agreed to reconsider the application you previously presented to the Army Discharge Review Board (ADRB). You may submit additional evidence in support of your reconsideration, but the ADRB must receive your evidence within 60 days of the date on this letter. For more information on this settlement, please visit https://arba.army.pentagon.mil/adrb-overview.html.
You are eligible for three reasons. First, you have applied to the ADRB before. Second, your application was denied or not fully granted between April 17, 2011 and [effective date of settlement]. Last, you may have raised evidence related to PostTraumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), Military Sexual Trauma (MST), and / or other behavioral health issues.
There have been changes in the laws and in Defense Department guidance since the ADRB decided your case. The ADRB will automatically reconsider your case in light of these new laws and guidance. In particular, the Board will consider whether PTSD, TBI, MST, and / or other behavioral health issues related to your service may have contributed to the reasons you were discharged. Copies of the new guidance memoranda are at https://arba.army.pentagon.mil/abcmr-overview.html.
The ADRB will reconsider your application and send you its decision. It is important to understand the following about this process:
a. You do not need to submit an application to the ADRB. The ADRB will take a fresh look at your previous application. You may receive a discharge upgrade even if you choose not to contact the ADRB.
b. There is no guarantee you will receive a discharge upgrade. Your application must show that your current discharge characterization is erroneous or unjust. If the ADRB finds there is not enough evidence that your discharge characterization is erroneous or unjust, your current discharge status will stay the same. The ADRB cannot make your current discharge characterization worse. It cannot take any other negative action on your military records.

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c. You may provide written materials as evidence to the ADRB to support your case. You can include documents that you did not submit previously. This is an opportunity to persuade the Board that it should upgrade your discharge.
d. Any additional written materials you submit must be received by the ADRB no later than 60 days from the date of this letter. The ADRB may decide your application at any time after the 60-day period.
e. It will help your case if you are able to provide written medical evidence to support your application. ARBA has agreed to have the ADRB follow the guidance memoranda described above. They direct that “liberal consideration” be given to applications that document one or more symptoms of PTSD, TBI, MST, or other behavioral health issues.
f. By submitting relevant evidence, you will help the ADRB understand whether your experiences, conditions, and / or mental health conditions are related to any misconduct in your military record. Relevant evidence includes, but is not limited to:
• Diagnoses from a medical professional, either in service or after service, of PTSD, TBI, and / or other behavioral health issues;
• Documentation from a medical professional or licensed social worker recording symptoms that are associated with PTSD, TBI, MST, and / or other behavioral health issues, even if a formal diagnosis was not made; and
• Letters from people who knew you before, during, or after your service that can describe any behavioral changes or symptoms of PTSD, TBI, and / or other behavioral health issues.
If possible, you or a medical professional should explain how these symptoms or diagnoses mitigate or outweigh any misconduct contained in your military record.
g. This evidence may come from evaluation and treatment you received from a private medical practitioner. You may also be eligible for mental health evaluation and treatment at the Department of Veterans Affairs, even if you do not have an Honorable or General discharge status. You may contact the Department of Veterans Affairs at 1844-698-2311.
h. You can get help to submit written materials. A directory of free legal service programs is available through Stateside Legal at https://www.statesidelegal.org. The Department of Veterans Affairs also publishes a Directory of Veterans Service Organizations at https://www.va.gov/vso/.
i. You can send additional materials by mail or email. Your documents must include your case number. Your case number is the number beginning with “AR” referenced at the top of this letter. Please ensure the entire case number, beginning with the letters “AR” is written clearly near the top of the first page of your documents. Please also include your preferred mailing address, your phone number, and an email address that you check frequently. If the ADRB must contact you, it will first use your

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3
email address. If that is unsuccessful, it will use your phone number or mailing address. To send by mail, please send to:
Army Review Boards Agency Army Discharge Review Board ATTN: Court Reconsideration 251 18th Street S., Suite 385 Arlington, VA 22202-3531
To send by email, please send to: usarmy.pentagon.hqda-arba.mbx.adrb-grpa@us.army.mil.
Thank you for your attention. We hope you will take advantage of the opportunity to provide additional written materials to the ADRB. As a reminder, any written materials you submit must be received by the ADRB no later than 60 days from the date of this letter. If you have questions about this letter or about your case, you may contact usarmy.pentagon.hqda-arba.mbx.adrb-grpa@us.army.mil.
Sincerely,
Army Review Boards Agency

Case 3:16-cv-02010-CSH Document 198-7 Filed 11/17/20 Page 1 of 3
DEPARTMENT OF THE ARMY
ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385
ARLINGTON, VA 22202-3531
[date]
GROUP C [applicant name] [applicant address]
Dear Sir or Madam:
You are receiving this letter as part of a settlement agreement in a class-action lawsuit filed in federal court in Connecticut, Kennedy v. McCarthy. The Army Review Boards Agency (ARBA) has agreed to accept re-applications from a group of former Soldiers who previously requested that the Army Discharge Review Board (ADRB) upgrade their discharges. You are receiving this letter because you are eligible to submit a new application. For more information on this settlement, please visit https://arba.army.pentagon.mil/adrb-overview.html.
You are eligible for two reasons. First, you have applied to the ADRB before. Second, your application was denied or not fully granted between April 17, 2011 and September 4, 2014.
There have been changes in the laws and in Defense Department guidance since the ADRB decided your case. If you reapply, the ADRB will consider your case in light of these new laws and guidance. In particular, the Board will consider whether PTSD, TBI, MST, and / or other behavioral health issues related to your service may have contributed to the reasons you were discharged. Copies of the new guidance memoranda are at https://arba.army.pentagon.mil/abcmr-overview.html.
It is important to understand the following about your opportunity to reapply:
a. If you reapply, you must submit a new application. If you submit a new application, the ADRB will take a fresh look at your case.
b. How to reapply depends on how long ago you were discharged. If you were discharged less than 15 years before ARBA receives your re-application, you may reapply to the ADRB for relief. Please use DD Form 293, Application for Review of Discharge from the Armed Forces. The form is included with this notice and can also be found at https://arba.army.pentagon.mil/documents/DDForm293.pdf.
c. If you were discharged more than 15 years before ARBA receives your application, you may reapply directly to the Army Board for Correction of Military Records (ABCMR). Or, if you submit a new application to the ADRB at the address below, it will forward your application to the ABCMR. You will not need to do anything else to make sure the ABCMR processes your application.

Case 3:16-cv-02010-CSH Document 198-7 Filed 11/17/20 Page 2 of 3
2
d. After receiving your new application, the ADRB or ABCMR will reconsider your case. As a result, you might receive a discharge upgrade.
e. There is no guarantee you will receive a discharge upgrade. Your application must show that your current discharge characterization is erroneous or unjust. If the ADRB or the ABCMR finds there is not enough evidence that your discharge characterization is erroneous or unjust, your current discharge status will stay the same. The ADRB or the ABCMR cannot make your current discharge characterization worse. They cannot take any other negative action on your military records.
f. You may provide written materials as evidence to the ADRB to support your case. You can include documents that you did not submit with your previous application(s). This is an opportunity to persuade the Board that it should upgrade your discharge.
g. It will help your case if you are able to provide written medical evidence to support your application. ARBA has agreed to have the ADRB follow the guidance memoranda described above. They direct that “liberal consideration” be given to applications that document one or more symptoms of PTSD, TBI, MST, or other behavioral health issues.
h. By submitting relevant evidence, you will help the ADRB understand whether your experiences, conditions, and / or mental health conditions are related to any misconduct in your military record. Relevant evidence includes, but is not limited to:
• Diagnoses from a medical professional, either in service or after service, of PTSD, TBI, and / or other behavioral health issues;
• Documentation from a medical professional or licensed social worker recording symptoms that are associated with PTSD, TBI, MST, and / or other behavioral health issues, even if a formal diagnosis was not made; and
• Letters from people who knew you before, during, or after your service that can describe any behavioral changes or symptoms of PTSD, TBI, and / or other behavioral health issues.
If possible, you or a medical professional should explain how these symptoms or diagnoses mitigate or outweigh any misconduct contained in your military record.
i. This evidence may come from evaluation and treatment you received from a private medical practitioner. You may also be eligible for mental health evaluation and treatment at the Department of Veterans Affairs, even if you do not have an Honorable or General discharge status. You may contact the Department of Veterans Affairs at 1844-698-2311.
j. You can get help to submit an application. A directory of free legal service programs is available through Stateside Legal at https://www.statesidelegal.org. The Department of Veterans Affairs also publishes a Directory of Veterans Service Organizations at https://www.va.gov/vso/.

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3
k. You can send your application and any supporting documents by mail or email. Please include a copy of this letter with your application. To send by mail, please send to:
Army Review Boards Agency Army Discharge Review Board ATTN: Group C Reapplication 251 18th Street S., Suite 385 Arlington, VA 22202-3531
To send by email, please send to: usarmy.pentagon.hqda-arba.mbx.i@mail.mil.
Thank you for your attention. We hope you will take advantage of the opportunity to reapply for a discharge upgrade. If you have questions about this letter or about your case, you may contact usarmy.pentagon.hqda-arba.mbx.i@mail.mil.
Sincerely,
Army Review Boards Agency

Case 3:16-cv-02010-CSH Document 198-8 Filed 11/17/20 Page 1 of 3
DEPARTMENT OF THE ARMY
ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385
ARLINGTON, VA 22202-3531
[date]
GROUP B [applicant name] [applicant address]
Dear Sir or Madam:
You are receiving this letter as part of a settlement agreement in a class-action lawsuit filed in federal court in Connecticut, Kennedy v. McCarthy. The Army Review Boards Agency (ARBA) has agreed to accept re-applications from a group of former Soldiers who previously requested that the Army Discharge Review Board (ADRB) upgrade their discharges. You are receiving this letter because you are eligible to submit a new application. For more information on this settlement, please visit https://arba.army.pentagon.mil/adrb-overview.html.
You are eligible for three reasons. First, you have applied to the ADRB before. Second, your application was denied or not fully granted between October 7, 2001 and April 16, 2011. Last, you may have raised evidence related to Post-Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), Military Sexual Trauma (MST), and / or other behavioral health issues.
There have been changes in the laws and in Defense Department guidance since the ADRB decided your case. If you reapply, the ADRB will consider your case in light of these new laws and guidance. In particular, the Board will consider whether PTSD, TBI, MST, and / or other behavioral health issues related to your service may have contributed to the reasons you were discharged. Copies of the new guidance memoranda are at https://arba.army.pentagon.mil/abcmr-overview.html.
It is important to understand the following about your opportunity to reapply:
a. If you reapply, you must submit a new application. If you submit a new application, the ADRB will take a fresh look at your case.
b. How to reapply depends on how long ago you were discharged. If you were discharged less than 15 years before ARBA receives your re-application, you may reapply to the ADRB for relief. Please use DD Form 293, Application for Review of Discharge from the Armed Forces. The form is included with this notice and can also be found at https://arba.army.pentagon.mil/documents/DDForm293.pdf.
c. If you were discharged more than 15 years before ARBA receives your application, you may reapply directly to the Army Board for Correction of Military Records (ABCMR). Or, if you submit a new application to the ADRB at the address below, it will forward your application to the ABCMR. You will not need to do anything else to make sure the ABCMR processes your application.

Case 3:16-cv-02010-CSH Document 198-8 Filed 11/17/20 Page 2 of 3
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d. After receiving your new application, the ADRB or ABCMR will reconsider your case. As a result, you might receive a discharge upgrade.
e. There is no guarantee you will receive a discharge upgrade. Your application must show that your current discharge characterization is erroneous or unjust. If the ADRB or the ABCMR finds there is not enough evidence that your discharge characterization is erroneous or unjust, your current discharge status will stay the same. The ADRB or the ABCMR cannot make your current discharge characterization worse. They cannot take any other negative action on your military records.
f. You may provide written materials as evidence to the ADRB to support your case. You can include documents that you did not submit with your previous application(s). This is an opportunity to persuade the Board that it should upgrade your discharge.
g. It will help your case if you are able to provide written medical evidence to support your application. ARBA has agreed to have the ADRB follow the guidance memoranda described above. They direct that “liberal consideration” be given to applications that document one or more symptoms of PTSD, TBI, MST, or other behavioral health issues.
h. By submitting relevant evidence, you will help the ADRB understand whether your experiences, conditions, and / or mental health conditions are related to any misconduct in your military record. Relevant evidence includes, but is not limited to:
• Diagnoses from a medical professional, either in service or after service, of PTSD, TBI, and / or other behavioral health issues;
• Documentation from a medical professional or licensed social worker recording symptoms that are associated with PTSD, TBI, MST, and / or other behavioral health issues, even if a formal diagnosis was not made; and
• Letters from people who knew you before, during, or after your service that can describe any behavioral changes or symptoms of PTSD, TBI, and / or other behavioral health issues.
If possible, you or a medical professional should explain how these symptoms or diagnoses mitigate or outweigh any misconduct contained in your military record.
i. This evidence may come from evaluation and treatment you received from a private medical practitioner. You may also be eligible for mental health evaluation and treatment at the Department of Veterans Affairs, even if you do not have an Honorable or General discharge status. You may contact the Department of Veterans Affairs at 1844-698-2311.
j. You can get help to submit an application. A directory of free legal service programs is available through Stateside Legal at https://www.statesidelegal.org. The

Case 3:16-cv-02010-CSH Document 198-8 Filed 11/17/20 Page 3 of 3
3
Department of Veterans Affairs also publishes a Directory of Veterans Service Organizations at https://www.va.gov/vso/.
k. You can send your application and any supporting documents by mail or email. Please include a copy of this letter with your application. To send by mail, please send to:
Army Review Boards Agency Army Discharge Review Board ATTN: Group B Reapplication 251 18th Street S., Suite 385 Arlington, VA 22202-3531
To send by email, please send to: usarmy.pentagon.hqda-arba.mbx.i@mail.mil.
Thank you for your attention. We hope you will take advantage of the opportunity to reapply for a discharge upgrade. If you have questions about this letter or about your case, you may contact usarmy.pentagon.hqda-arba.mbx.i@mail.mil.
Sincerely,
Army Review Boards Agency

Case 3:16-cv-02010-CSH Document 198-9 Filed 11/17/20 Page 1 of 5
DEPARTMENT OF THE ARMY
ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385
ARLINGTON, VA 22202-3531
PUBLIC NOTICE [Date Posted]
As part of a settlement agreement in a lawsuit filed in the U.S. District Court for the District of Connecticut, the Army Review Boards Agency (ARBA) has agreed to have the Army Discharge Review Board (ADRB) automatically reconsider discharge upgrade applications of a group of former Soldiers who previously applied to the ADRB, and to accept new applications from a separate group of former Soldiers who previously applied to the ADRB for discharge upgrades. Please read carefully the information in Part I below to learn if you, as a former Soldier who previously applied to the ADRB for a discharge upgrade, might qualify for automatic reconsideration. If you do not qualify for automatic reconsideration, please see Part II to learn if you might qualify to re-apply to the ADRB for a discharge upgrade.
Part I: Automatic Reconsideration of Previously Submitted Applications to the ADRB.
As mentioned above, ARBA has agreed to have the ADRB automatically reconsider discharge upgrade applications of a particular group of former Soldiers, which we refer to here as Group A Soldiers. This group is limited to those former Soldiers: a) who had their cases decided by the ADRB between April 17, 2011 and [effective date of settlement]; b) who did not receive the entire discharge upgrade they had requested; and, c) whose records and / or previous application may have raised evidence pertaining to Post-Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), Military Sexual Trauma (MST), and / or other behavioral health issues.
There have been changes in the laws and in Defense Department guidance since the ADRB decided these former Soldiers’ cases. The ADRB will automatically reconsider the identified cases in light of these new laws and guidance. In particular, the Board will consider whether PTSD, TBI, MST, and / or other behavioral health issues related to the Soldier’s service may have contributed to the reasons they were discharged. Copies of the new guidance memoranda are at https://arba.army.pentagon.mil/abcmr-overview.html.
The ADRB will reconsider each Group A Soldier’s application and send them its decision. The ADRB will also send a notice letter to all Group A Soldiers at their last known address on file with the agency notifying them that their application will be reconsidered and that they have the opportunity to submit additional evidence. Soldiers will have 60 days to respond to this letter. It is important to understand the following about this process:
a. The Soldier does not need to submit an application to the ADRB. The ADRB will take a fresh look at the Soldier’s previous application. The Soldier may receive a discharge upgrade even if the Soldier chooses not to contact the ADRB.

Case 3:16-cv-02010-CSH Document 198-9 Filed 11/17/20 Page 2 of 5
b. There is no guarantee the Soldier will receive a discharge upgrade. The Soldier’s application must show that their current discharge characterization is erroneous or unjust. If the ADRB finds there is not enough evidence that their discharge characterization is erroneous or unjust, the Soldier’s current discharge status will stay the same. The ADRB cannot make the Soldier’s current discharge characterization worse. It cannot take any other negative action on the Soldier’s military records.
c. The Soldier may provide written materials as evidence to the ADRB to support their case. The Soldier can include documents that they did not submit previously. This is an opportunity to persuade the Board that it should upgrade the Soldier’s discharge.
d. Any additional written materials the Soldier submits must be received by the ADRB no later than 60 days from the date of the letter they receive from the ADRB. The ADRB may decide the Soldier’s application at any time after the 60-day period.
e. It will help the Soldier’s case if they are able to provide written medical evidence to support their application. ARBA has agreed to have the ADRB follow the guidance memoranda described above. They direct that “liberal consideration” be given to applications that document one or more symptoms of PTSD, TBI, MST, or other behavioral health issues.
f. By submitting relevant evidence, the Soldier will help the ADRB understand whether the Soldier’s experiences, conditions, and / or mental health conditions are related to any misconduct in the Soldier’s military record. Relevant evidence includes, but is not limited to:
• Diagnoses from a medical professional, either in service or after service, of PTSD, TBI, and / or other behavioral health issues;
• Documentation from a medical professional or licensed social worker recording symptoms that are associated with PTSD, TBI, MST, and / or other behavioral health issues, even if a formal diagnosis was not made; and
• Letters from people who knew the Soldier before, during, or after their service that can describe any behavioral changes or symptoms of PTSD, TBI, and / or other behavioral health issues.
If possible, the Soldier or a medical professional should explain how these symptoms or diagnoses mitigate or outweigh any misconduct contained in the Soldier’s military record.
g. This evidence may come from evaluation and treatment the Soldier received from a private medical practitioner. The Soldier may also be eligible for mental health evaluation and treatment at the Department of Veterans Affairs, even if they do not have an Honorable or General discharge status. The Soldier may contact the Department of Veterans Affairs at 1-844-698-2311.
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Case 3:16-cv-02010-CSH Document 198-9 Filed 11/17/20 Page 3 of 5
h. The Soldier can get help to submit written materials. A directory of free legal service programs is available through Stateside Legal at www.statesidelegal.org. The Department of Veterans Affairs also publishes a Directory of Veterans Service Organizations at https://www.va.gov/vso/.
i. The Soldier can send additional materials by mail or email. The Soldier’s documents must include their case number. The case number is the number beginning with “AR” referenced at the top of the notice letter sent to Group A Soldiers by the ADRB. Please ensure the entire case number, beginning with the letters “AR” is written clearly near the top of the first page of all documents. Please also include the Soldier’s preferred mailing address, phone number, and an email address that is checked frequently. If the ADRB must contact the Soldier, it will first use the email address. If that is unsuccessful, it will use the phone number or mailing address. To send by mail, please send to:
Army Review Boards Agency Army Discharge Review Board ATTN: Court Reconsideration 251 18th Street S., Suite 385 Arlington, VA 22202-3531
To send by email, please send to: usarmy.pentagon.hqda-arba.mbx.adrb-grpa@us.army.mil.
Part II: New Applications for Previously Adjudicated Discharge Upgrade Requests.
In addition to the automatic reconsideration discussed in Part I, ARBA has also agreed to accept new applications for discharge upgrade requests for a different group of former Soldiers, which we refer to here as Group B and Group C Soldiers. Group B is limited to those former Soldiers: a) who previously applied to the ADRB; b) whose application was denied or not fully granted between October 7, 2001 and April 16, 2011; and, c) whose records and / or previous application may have raised evidence pertaining to Post-Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), Military Sexual Trauma (MST), and / or other behavioral health issues. Group C is limited to those former Solders: a) who previously applied to the ADRB; and b) whose application was denied or not fully granted between April 17, 2011 and September 4, 2014.
There have been changes in the laws and in Defense Department guidance since the ADRB decided these former Soldiers’ cases. If a Group B or Group C Soldier reapplies, the ADRB will consider their case in light of these new laws and guidance. In particular, the Board will consider whether PTSD, TBI, MST, and / or other behavioral health issues related to their service may have contributed to the reasons they were discharged. Copies of the new guidance memoranda are at https://arba.army.pentagon.mil/abcmr-overview.html.
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Case 3:16-cv-02010-CSH Document 198-9 Filed 11/17/20 Page 4 of 5
A notice letter will be sent to all Group B and C Soldiers at their last known address on file with the agency notifying them of this opportunity. It is important to understand the following about a Group B or Group C Soldier’s opportunity to reapply:
a. If the Soldier reapplies, they must submit a new application. If the Soldier submits a new application, the ADRB will take a fresh look at their case.
b. How to reapply depends on how long ago the Soldier was discharged. If the Soldier was discharged less than 15 years before ARBA receives their re-application, they may reapply to the ADRB for relief. Please use DD Form 293, Application for Review of Discharge from the Armed Forces. The form is included with this notice and can also be found at https://arba.army.pentagon.mil/documents/DDForm293.pdf.
c. If the Soldier was discharged more than 15 years before ARBA receives their application, they may reapply directly to the Army Board for Correction of Military Records (ABCMR). Or, if the Soldier submits a new application to the ADRB at the address below, it will forward the application to the ABCMR. The Soldier will not need to do anything else to make sure the ABCMR processes their application.
d. After receiving the Soldier’s new application, the ADRB or ABCMR will reconsider their case. As a result, the Soldier might receive a discharge upgrade.
e. There is no guarantee the Soldier will receive a discharge upgrade. The Soldier’s application must show that their current discharge characterization is erroneous or unjust. If the ADRB or the ABCMR finds there is not enough evidence that the Soldier’s discharge characterization is erroneous or unjust, their current discharge status will stay the same. The ADRB or the ABCMR cannot make the Soldier’s current discharge characterization worse. They cannot take any other negative action on the Soldier’s military records.
f. The Soldier may provide written materials as evidence to the ADRB to support their case. The Soldier can include documents that they did not submit with their previous application(s). This is an opportunity to persuade the Board that it should upgrade the Soldier’s discharge.
g. It will help the Soldier’s case if they are able to provide written medical evidence to support the application. ARBA has agreed to have the ADRB follow the guidance memoranda described above. They direct that “liberal consideration” be given to applications that document one or more symptoms of PTSD, TBI, MST, or other behavioral health issues.
h. By submitting relevant evidence, the Soldier will help the ADRB understand whether the Soldier’s experiences, conditions, and / or health conditions are related to any misconduct in their military record. Relevant evidence includes, but is not limited to:
• Diagnoses from a medical professional, either in service or after service, of PTSD, TBI, and / or other behavioral health issues;
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Case 3:16-cv-02010-CSH Document 198-9 Filed 11/17/20 Page 5 of 5
• Documentation from a medical professional or licensed social worker recording symptoms that are associated with PTSD, TBI, MST, and / or other behavioral health issues, even if a formal diagnosis was not made; and
• Letters from people who knew the Soldier before, during, or after their service that can describe any behavioral changes or symptoms of PTSD, TBI, and / or other behavioral health issues.
If possible, the Soldier or a medical professional should explain how these symptoms or diagnoses mitigate or outweigh any misconduct contained in the Soldier’s military record.
i. This evidence may come from evaluation and treatment the Soldier received from a private medical practitioner. The Soldier may also be eligible for mental health evaluation and treatment at the Department of Veterans Affairs, even if the Soldier does not have an Honorable or General discharge status. The Soldier may contact the Department of Veterans Affairs at 1-844-698-2311.
j. The Soldier can get help to submit an application. A directory of free legal service programs is available through Stateside Legal at www.statesidelegal.org. The Department of Veterans Affairs also publishes a Directory of Veterans Service Organizations at https://www.va.gov/vso/.
k. The Soldier can send their application and any supporting documents by mail or email. They should include a copy of their notice letter with their application. To send by mail, please send to:
Army Review Boards Agency Army Discharge Review Board ATTN: Group B Reapplication OR ATTN: Group C Reapplication 251 18th Street S., Suite 385 Arlington, VA 22202-3531 To send by email, please send to: usarmy.pentagon.hqda-arba.mbx.i@mail.mil.
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