EFILE,REFCNF,REFDIS,RMS,SALM
U.S. District Court District of Connecticut (New Haven) CIVIL DOCKET FOR CASE #: 3:18−cv−00372−CSH

Manker et al v. Spencer Assigned to: Judge Charles S. Haight, Jr Referred to: Judge Robert M. Spector (Settlement) Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 03/02/2018 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Tyson Manker on behalf of himself and all others similarly situated

represented by Jessica A. Martinez Jenner & Block LLP 919 Third Avenue 39th Floor New York, NY 10022 212−891−1658 Fax: 312−825−5528 Email: jmartinez@jenner.com 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: 07/17/2018 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

Jeremy H. Ershow Jenner & Block LLP 919 Third Avenue Ste 38th Floor New York, NY 10022 212−891−1651 Fax: 212−891−1699

Plaintiff
National Veterans Council for Legal Redress on behalf of itself, its members, and all others similarly situated

Email: jershow@jenner.com ATTORNEY TO BE NOTICED
Nicole Taykhman Jenner & Block LLP 919 Third Avenue Ste 38th Floor New York, NY 10022 212−891−1681 Fax: 212−891−1699 Email: ntaykhman@jenner.com TERMINATED: 01/15/2020 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
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
represented by Jessica A. Martinez (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: 07/17/2018 ATTORNEY TO BE NOTICED
Jeremy M. Creelan (See above for address) ATTORNEY TO BE NOTICED
Jeremy H. Ershow (See above for address) ATTORNEY TO BE NOTICED
Nicole Taykhman (See above for address) TERMINATED: 01/15/2020 ATTORNEY TO BE NOTICED
Renee A. Burbank (See above for address) ATTORNEY TO BE NOTICED

Susan J. Kohlmann (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Richard V Spencer Secretary of the Navy TERMINATED: 12/11/2019
Defendant Thomas B Modly Acting Secretary of the Navy

represented by David Christopher Nelson U.S. Attorney's Office−NH 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 Natalie Nicole Elicker U. S. Attorney's Office−CT 157 Church Street 24th Floor New Haven, CT 06519 203−821−3700 Fax: 203−773−5373 Email: natalie.elicker@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/02/2018
03/02/2018 03/02/2018 03/02/2018 03/02/2018
03/05/2018
03/05/2018
04/30/2018

# Docket Text
1 COMPLAINT against Richard V Spencer ( Filing fee $400 receipt number ACTDC−4739751.), filed by Tyson Manker, National Veterans Council for Legal Redress. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Wishnie, Michael) (Entered: 03/02/2018)
Request for Clerk to issue summons as to Richard V Spencer. (Wishnie, Michael) (Entered: 03/02/2018)
Judge Charles S. Haight, Jr added. (Anastasio, F.) (Entered: 03/02/2018)
2 Order on Pretrial Deadlines: Discovery due by 9/1/2018 Signed by Clerk on 03/02/2018. (Peterson, M) (Entered: 03/05/2018)
3 ELECTRONIC FILING ORDER − PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER Signed by Judge Charles S. Haight, Jr on 03/02/2018. (Peterson, M) (Entered: 03/05/2018)
4 NOTICE TO COUNSEL/SELF−REPRESENTED PARTIES : Counsel or self−representing parties initiating or removing this action are responsible for serving all parties with attached documents and copies of 1 Complaint, filed by Tyson Manker, National Veterans Council for Legal Redress, 2 Order on Pretrial Deadlines, 3 Electronic Filing Order Signed by Clerk on 03/05/2018. (Peterson, M) (Entered: 03/05/2018)
5 ELECTRONIC SUMMONS ISSUED in accordance with Fed. R. Civ. P. 4 and LR 4 as to *Richard V Spencer* with answer to complaint due within *21* days. Attorney *Michael J. Wishnie* *Jerome N. Frank Legal Services − Wall St / Yale Law School* *127 Wall Street* *New Haven, CT 06511*. (Peterson, M) (Entered: 03/05/2018)
6 NOTICE of Appearance by David Christopher Nelson on behalf of Richard V Spencer (Nelson, David) (Entered: 04/30/2018)

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7 MOTION for Extension of Time until June 21, 2018 to file a responsive pleading 1 Complaint, by Richard V Spencer. (Nelson, David) (Entered: 04/30/2018)
8 ELECTRONIC ORDER granting, for good cause shown and pursuant to Local Rule 7(b), Defendant's unopposed 7 First Motion for Extension of Time to File a Responsive Pleading. Accordingly, Defendant must file a pleading responsive to the 1 Complaint not later than Thursday, June 21, 2018. Signed by Judge Charles S. Haight, Jr. on May 1, 2018. (Pskowski, R.) (Entered: 05/01/2018)
9 NOTICE of Appearance by Aaron Paul Wenzloff on behalf of Tyson Manker, National Veterans Council for Legal Redress (Wenzloff, Aaron) (Entered: 05/01/2018)
10 Joint MOTION for Proposed Scheduling Order by Tyson Manker, National Veterans Council for Legal Redress. (Wishnie, Michael) (Entered: 05/01/2018)
11 ELECTRONIC SCHEDULING ORDER granting and adopting the Parties' 10 Joint Motion for Scheduling Order. Accordingly, Plaintiffs motion for class certification is due no later than May 15, 2018. Defendants opposition to that motion is due on or before June 26, 2018. Plaintiffs may file a brief in reply on or before July 17, 2018. Defendants responsive pleading will not be due until after class certification has been decided, and the present deadline for that filing is hereby STAYED. Signed by Judge Charles S. Haight, Jr. on May 1, 2018. (Pskowski, R.) (Entered: 05/01/2018)
Answer deadline updated for Richard V Spencer to 6/21/2018. (Freberg, B) (Entered: 05/08/2018)
12 MOTION to Certify Class by Tyson Manker, National Veterans Council for Legal Redress.Responses due by 6/5/2018 (Attachments: # 1 Memorandum in Support, # 2 Declaration of Michael J. Wishnie, # 3 Declaration of Susan J. Kohlmann)(Wishnie, Michael) (Entered: 05/15/2018)
13 Joint STIPULATION and Proposed Order Regarding Discovery Plan by Tyson Manker, National Veterans Council for Legal Redress. (Wishnie, Michael) (Entered: 06/05/2018)
14 ELECTRONIC SCHEDULING ORDER adopting the proposals of the Parties' 13 Joint Stipulation and Proposed Order Regarding Discovery Plan, filed pursuant to Fed. R. Civ. P. 26(f). Accordingly, Defendant will file a responsive pleading within 30 days of the Court's decision on Plaintiffs' pending 12 Motion for Class Certification. Within 45 days of the Court's decision on class certification, the Parties will exchange initial disclosures, as contemplated by Fed. R. Civ. P. 26(a)(1), and file with the Court a proposed schedule for remaining deadlines, in compliance with the provisions of Local Rule 26(f). If either Party appeals the class certification decision, the Parties shall confer and submit a new proposed interim schedule within 30 days of the class certification decision. While setting of a full schedule is deferred, pending a decision on class certification, the Parties represent that they do not anticipate fact discovery to take more than 9 months. Signed by Judge Charles S. Haight, Jr. on June 5, 2018. (Pskowski, R.) (Entered: 06/05/2018)
15 MOTION for Attorney(s) Jeremy M. Creelan to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−4878030) by Tyson Manker, National Veterans Council for Legal Redress. (Attachments: # 1 Exhibit A)(Wishnie, Michael) (Entered: 06/22/2018)
16 MOTION for Attorney(s) Susan J. Kohlmann to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−4878045) by Tyson Manker, National Veterans Council for Legal Redress. (Attachments: # 1 Exhibit A)(Wishnie, Michael) (Entered: 06/22/2018)
17 MOTION for Attorney(s) Jessica A. Martinez to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−4878047) by Tyson Manker, National Veterans Council for Legal Redress. (Attachments: # 1 Exhibit A)(Wishnie, Michael) (Entered: 06/22/2018)
18 MOTION for Attorney(s) Jeremy H. Ershow to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−4878054) by Tyson Manker, National Veterans Council for Legal Redress. (Attachments: # 1 Exhibit A)(Wishnie, Michael) (Entered: 06/22/2018)

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19 RESPONSE re 12 MOTION to Certify Class filed by Richard V Spencer. (Attachments: # 1 Exhibits 1 − 4)(Nelson, David) (Entered: 06/25/2018)
20 ORDER granting 15 Motion to Appear Pro Hac Vice. Signed by Clerk on 06/27/2018. (Peterson, M) (Entered: 06/27/2018)
21 ORDER granting 16 Motion to Appear Pro Hac Vice; granting 17 Motion to Appear Pro Hac Vice; granting 18 Motion to Appear Pro Hac Vice. Signed by Clerk on 06/27/2018. (Peterson, M) (Entered: 06/27/2018)
22 NOTICE of Appearance by Jeremy H. Ershow on behalf of Tyson Manker, National Veterans Council for Legal Redress (Ershow, Jeremy) (Entered: 06/28/2018)
23 NOTICE of Appearance by Susan J. Kohlmann on behalf of Tyson Manker, National Veterans Council for Legal Redress (Kohlmann, Susan) (Entered: 06/29/2018)
24 NOTICE of Appearance by Jeremy M. Creelan on behalf of Tyson Manker, National Veterans Council for Legal Redress (Creelan, Jeremy) (Entered: 07/16/2018)
25 REPLY to Response to 12 MOTION to Certify Class filed by Tyson Manker, National Veterans Council for Legal Redress. (Kohlmann, Susan) (Entered: 07/16/2018)
26 MOTION for Aaron Wenzloff to Withdraw as Attorney by Tyson Manker, National Veterans Council for Legal Redress. (Wenzloff, Aaron) (Entered: 07/17/2018)
27 ORDER granting Attorney Aaron P. Wentzloff's 26 Motion to Withdraw. Attorney Wentzloff is terminated from the case, and Plaintiffs will continue to be represented in this Court by the remaining attorneys of record. Signed by Judge Charles S. Haight, Jr. on July 17, 2018. (Pskowski, R.) (Entered: 07/17/2018)
28 MOTION for Leave to Appear Law Student Intern Attorney Samantha Peltz. by Tyson Manker, National Veterans Council for Legal Redress. (Attachments: # 1 Exhibit)(Wishnie, Michael) (Entered: 09/17/2018)
29 MOTION for Leave to Appear Law Student Intern Attorney Jonathan Petkun. by Tyson Manker, National Veterans Council for Legal Redress. (Attachments: # 1 Exhibit)(Wishnie, Michael) (Entered: 09/17/2018)
30 MOTION for Leave to Appear Law Student Intern Attorney Westley Resendes. by Tyson Manker, National Veterans Council for Legal Redress. (Attachments: # 1 Exhibit)(Wishnie, Michael) (Entered: 09/17/2018)
31 ELECTRONIC ORDER, granting Plaintiffs' 28 29 30 Motions for Leave for Law Student Intern to Appear. "Any eligible law student intern may, with the Court's approval, under supervision by a member of the bar, appear on behalf of any person who has consented in writing to the intern's appearance." D. Conn. L. Civ. R. 83.9(a). The interns have the consent of clients and a supervising attorney, and they also certify they are enrolled in good standing in law school, have completed at least two semesters of credit in legal studies, and are neither employed nor receiving compensation from clients in this case. Docs. 28 −1, 29 −1, 30 −1; see also D. Conn. L. Civ. R. 83.9(c). Accordingly, law student interns Samathan G, Peltz, Jonathan B. Petkun, and Wesley A. Resendes may appear in this matter on behalf of Plaintiffs, subject to the provisions of Rule 83.9 of the District of Connecticut Local Rules of Civil Procedure and under the supervision of attorney Michael J. Wishnie. Signed by Judge Charles S. Haight, Jr. on 09/18/2018. (Chen, C.) (Entered: 09/18/2018)
32 NOTICE of Appearance by Jessica A. Martinez on behalf of Tyson Manker, National Veterans Council for Legal Redress (Martinez, Jessica) (Entered: 09/18/2018)
33 RULING (see attached) granting 12 Plaintiffs' Motion for Class Certification. Accordingly, the Court certifies the following class of veterans who served during the Iraq and Afghanistan Era − defined as the period between October 7, 2001, and the present − who: (a) were discharged from the Navy, Navy Reserve, Marine Corps, or Marine Corps Reserve with less−than−Honorable statuses, including General and Other−than−Honorable discharges but excluding Bad Conduct or Dishonorable discharges; (b) have not received upgrades of their discharge statuses to Honorable from the NDRB; and (c) have diagnoses of PTSD, TBI, or other related mental health conditions, or records documenting one or more symptoms of PTSD, TBI, or other related mental health conditions at the time of discharge, attributable to their military

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service under the Hagel Memo standards of liberal or special consideration. The Court also reminds parties of its 14 previous order, directing Defendant to file a responsive pleading within thirty (30) days of this decision and parties to exchange initial disclosures and file a proposed schedule for remaining deadlines within forty−five (45) days of this decision. A proposed interim schedule is due within thirty (30) days if either party appeals this decision. Signed by Judge Charles S. Haight, Jr. on 11/15/2018. (Chen, C.) (Entered: 11/15/2018)
34 MOTION for Extension of Time until January 15, 2019 to file a responsive pleading 33 Order on Motion to Certify Class,,,,, by Richard V Spencer. (Nelson, David) (Entered: 12/04/2018)
35 ELECTRONIC ORDER granting 34 Defendant's Motion for Extension of Time to File a Responsive Pleading Following Class Certification, absent objection and for good cause shown. Accordingly, Defendant's responsive pleading following the Court's 33 Ruling on Plaintiff's Motion for Class Certification is due on or before January 15, 2019. Signed by Judge Charles S. Haight, Jr. on 12/05/2018. (Chen, C.) (Entered: 12/05/2018)
36 Joint REPORT of Rule 26(f) Planning Meeting. (Attachments: # 1 Exhibit Plaintiffs' proposed production specifications)(Wishnie, Michael) (Entered: 12/21/2018)
37 ELECTRONIC ORDER. Having reviewed 36 Report of the Parties' Planning Meeting, a scheduling conference is warranted as parties disagree as to whether the federal and local rules of civil procedure exempt this case from the usual discovery procedures, the scope of discovery, and discovery deadlines. Because the Report outlines the parties' positions, parties are not required to exchange and submit briefs addressing these issues. The Court will hold a scheduling conference on January 22, 2019, at 10:30am. A separate calendar notice will issue. All case deadlines, including the filing of Defendant's intended Motion to Dismiss and/or for Remand, are STAYED. In addition, the Court finds there is good cause to delay issue of the scheduling order until discovery issues are resolved. See Fed. R. Civ. P. 16(b)(2) ([U]nless the judge finds good cause for delay, the judge must issue [the scheduling order] within the earlier of 90 days....). Signed by Judge Charles S. Haight, Jr. on 12/27/2018. (Chen, C.) (Entered: 12/27/2018)
38 NOTICE OF SCHEDULING CONFERENCE. A scheduling conference will be held on January 22, 2019, at 10:30am in the Courtroom on the 17th Floor of the Connecticut Financial Building, 157 Church Street, New Haven, Connecticut, to resolve discovery issues raised in the 36 Report of the Parties' Planning Meeting. Out−of−state counsel need not appear in person and may participate by phone. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Signed by Judge Charles S. Haight, Jr. on 12/27/2018. (Chen, C.) (Entered: 12/27/2018)
39 MOTION for Attorney(s) Nicole Taykhman to be Admitted Pro Hac Vice (paid $75 PHV fee; receipt number ACTDC−5120436) by Tyson Manker, National Veterans Council for Legal Redress. (Attachments: # 1 Affidavit of Nicole Taykhman)(Wishnie, Michael) (Entered: 01/14/2019)
40 ORDER granting 39 MOTION for Attorney Nicole Taykhman to be Admitted Pro Hac Vice. Signed by Clerk on 1/15/2019. (Reis, Julia) (Entered: 01/15/2019)
41 MOTION to Continue January 22, 2019 hearing because of lapse in Government Appropriations by Richard V Spencer. (Nelson, David) (Entered: 01/15/2019)
42 NOTICE of Appearance by Nicole Taykhman on behalf of Tyson Manker, National Veterans Council for Legal Redress (Taykhman, Nicole) (Entered: 01/16/2019)
43 Memorandum in Opposition re 41 MOTION to Continue January 22, 2019 hearing because of lapse in Government Appropriations filed by Tyson Manker, National Veterans Council for Legal Redress. (Wishnie, Michael) (Entered: 01/16/2019)
44 ORDER (see attached) granting AS MODIFIED Defendant's 41 Motion to Continue Hearing Based on the Lapse of Government Appropriations, to which Plaintiffs object. Accordingly, the scheduling conference that was to be held on January 22, 2019, see Doc. 38, is continued to February 5, 2019 at 10:30 a.m. in Courtroom 2 in the

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Richard C. Lee U.S. Courthouse, 141 Church Street, New Haven, CT, if the U.S. Attorney's office is funded and AUSA Nelson recalled from furlough. If this contingency does not come to pass and AUSA Nelson remains furloughed on February 5, 2019, the occupants of AUSA Nelson's chain of command are directed to file by February 5, 2019, a brief responding to 43 Plaintiffs' Opposition to Motion to Continue Hearing. If so advised, Plaintiffs may file a reply brief by February 12, 2019. The Court will then decide if any further stay or continue should be granted in this case. Signed by Judge Charles S. Haight, Jr. on 01/18/2019. (Chen, C.) (Entered: 01/18/2019)
45 MOTION to allow use of ASL Interpreting Team by Tyson Manker, National Veterans Council for Legal Redress.Responses due by 2/8/2019 (Wishnie, Michael) (Entered: 01/18/2019)
46 ELECTRONIC ORDER granting Plaintiffs' 45 Motion to Allow Use of American Sign Language Interpreting Team. One of the law student interns representing Plaintiffs, Mr. Resendes, is deaf and asks for a reasonable accommodation. Accordingly, Mr. Resendes may use his American Sign Language interpreting team from Yale Law School for the scheduling conference to be held on February 5, 2019, see Doc. 44, and at any future proceedings. Signed by Judge Charles S. Haight, Jr. on 01/22/2019. (Chen, C.) (Entered: 01/22/2019)
47 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. In−Person Scheduling Conference set for 2/5/2019 at 10:30 AM in Courtroom Two, 141 Church St., New Haven, CT before Judge Charles S. Haight Jr. (Freberg, B) (Entered: 01/24/2019)
48 ELECTRONIC ORDER. Parties are directed to exchange and submit a brief on the discovery issues raised in the 36 Report of the Parties' Planning Meeting and discussed in today's scheduling conference no more than fifteen (15) days after the parties and this Court have been furnished a transcript of today's proceedings. If so advised, the parties may exchange and submit reply briefs seven (7) days after submission of the main briefs. Signed by Judge Charles S. Haight, Jr. on 02/05/2019. (Chen, C.) (Entered: 02/05/2019)
49 Minute Entry for proceedings held before Judge Charles S. Haight, Jr: In−Person Scheduling Conference held on 2/5/2019. Total Time: 1 hours and 13 minutes(Court Reporter Tracy Gow.) (Freberg, B) (Entered: 02/05/2019)
50 TRANSCRIPT of Proceedings: Type of Hearing: Scheduling Conference. Held on February 5, 2019 before Judge Charles S. Haight, Jr.. Court Reporter: Tracy Gow. 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 3/8/2019. Redacted Transcript Deadline set for 3/18/2019. Release of Transcript Restriction set for 5/16/2019. (Gow, T.) (Entered: 02/15/2019)
51 RESPONSE re 36 Report of Rule 26(f) Planning Meeting re Request for Discovery filed by Tyson Manker, National Veterans Council for Legal Redress. (Wishnie, Michael) (Entered: 03/04/2019)
52 RESPONSE re 36 Report of Rule 26(f) Planning Meeting filed by Richard V Spencer. (Nelson, David) (Entered: 03/04/2019)
53 RESPONSE re 36 Report of Rule 26(f) Planning Meeting, 51 Response filed by Richard V Spencer. (Nelson, David) (Entered: 03/11/2019)

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54 RESPONSE re 36 Report of Rule 26(f) Planning Meeting, 52 Response filed by Tyson Manker, National Veterans Council for Legal Redress. (Creelan, Jeremy) (Entered: 03/11/2019)
55 MEMORANDUM AND ORDER (attached), concerning a dispute about pretrial discovery. The Court can only determine if extra−record discovery, and how much discovery, is permitted under the Administrative Procedure Act once Defendant has produced the administrative record. Accordingly:
1. Defendant is directed to produce to counsel for Plaintiffs, on or before May 20, 2019, the full administrative records of the two lead Plaintiffs in this action relating to the application of those Plaintiffs for discharge upgrades.
2. In addition to the records referred to in Paragraph 1 of this Order, Defendant is directed to produce to counsel for Plaintiffs, on or before May 20, 2019, the documents referred to in Defendant's brief, [Doc. 52 ], at page 5 n.1.
3. If any party wishes any document referred to in this Order to be filed under seal or otherwise held in confidence, the parties are directed to agree upon an appropriate order and submit it to the Court, or failing agreement, apply to the Court for resolution of the issue.
Signed by Judge Charles S. Haight, Jr. on 04/05/2019. (Chen, C.) (Entered: 04/05/2019)
56 NOTICE by Richard V Spencer − Filing of the Administrative Record (Attachments: # 1 Certification of the Record, # 2 Table of Contents, # 3 Volume 3 − references)(Nelson, David) (Entered: 05/20/2019)
57 MOTION to Seal − Portions of the Administrative Record by Richard V Spencer. (Nelson, David) (Entered: 05/20/2019)
58 Sealed Document: Volume 1 − Part 1 by Richard V Spencer re 57 MOTION to Seal − Portions of the Administrative Record . (Attachments: # 1 Part 2, # 2 Part 3)(Nelson, David) (Entered: 05/20/2019)
59 Sealed Document: Volume 2 − Part 1 by Richard V Spencer re 57 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)(Nelson, David) (Entered: 05/20/2019)
60 ELECTRONIC ORDER granting 57 Defendant's Motion to Seal. Defendant Richard V. Spencer, Secretary of the Navy, moves the Court to seal the Administrative Record with respect to military veterans Manker and Doe. Defendant represents that these records contain protected information, such as medical information. He further states that the parties are conferring to determine mutually agreeable redactions to later file without seal. Under these circumstances, the Court GRANTS the 57 motion to seal the Administrative Record temporarily to allow the parties sufficient time to propose appropriate redactions. In light of the contents of medical records, Defendant's request for sealing is warranted −− properly supported by "clear and compelling reasons" and "narrowly tailored to serve those reasons," D. Conn. L. Civ. R. 5(e)(3). See, e.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 123 (2d Cir. 2006)); New York Times Co. v. Biaggi, 828 F.2d 110, 116 (2d Cir.1987); Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 96 (2d Cir. 2004). Upon proper request, this District has sealed individuals' medical records, noting that "[f]ederal law generally treats such records as confidential." Tavares v. Lawrence & Mem'l Hosp., No. 3:11−CV−770 (CSH), 2012 WL 5929949, at *5 (D. Conn. Nov. 27, 2012) (quoting Barnwell v. FCI Danbury, No. 3:10−CV−01301 (DJS), 2011 WL 5330215, at *5 (D. Conn. Nov. 3, 2011) and citing the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Pub. L. No. 104191 (1996)). See also Northrop v. Carucci, No. 3:04−CV−103 (RNC), 2007 WL 685173, at *3 n.6 (D. Conn. Mar. 5, 2007) ("[P]laintiff's medical records will be sealed by the Clerk because federal law [HIPAA] treats medical records as confidential"). Because "blanket sealing" of entire documents or sets of document is generally disfavored, the parties must cooperate and use due diligence to propose the necessary redactions in a timely manner. See, e.g., Travelers Indem. Co. v. Excalibur Reinsurance Corp., No. 3:11−CV−1209 (CSH), 2013 WL 4012772, at *3 (D. Conn. Aug. 5, 2013) ("[B]lanket sealing of an entire case is

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disfavored both under rule and case precedent.") (collecting cases). In this case, the parties are proceeding in the proper fashion. This Order for sealing is accordingly temporary and subject to the Court's further Order. Signed by Judge Charles S. Haight, Jr. on May 24, 2019. (Dorais, L.) (Entered: 05/24/2019)
61 RESPONSE re 56 Notice (Other) by Tyson Manker, National Veterans Council for Legal Redress/ Letter Regarding Administrative Record and Discovery. (Kohlmann, Susan) (Entered: 05/31/2019)
62 RESPONSE re 61 Response filed by Richard V Spencer. (Nelson, David) (Entered: 06/18/2019)
63 MOTION for Leave to Appear Law Student Interns Jazmine Buckley and Jared Quigley by Tyson Manker, National Veterans Council for Legal Redress. (Attachments: # 1 Law Student Intern Appearance, # 2 Law Student Intern Appearance)(Wishnie, Michael) (Entered: 06/24/2019)
64 ELECTRONIC ORDER, granting Plaintiffs' 63 Motion for Leave for Law Student Interns to Appear. "Any eligible law student intern may, with the Court's approval, under supervision by a member of the bar, appear on behalf of any person who has consented in writing to the intern's appearance." D. Conn. L. Civ. R. 83.9(a). The interns have the consent of clients and a supervising attorney, and they also certify they are enrolled in good standing in law school, have completed at least two semesters of credit in legal studies, and are neither employed nor receiving compensation from clients in this case. Docs. 63 −1, 63 −2; see also D. Conn. L. Civ. R. 83.9(c). Accordingly, law student interns Jazmine G. Buckley and Jared M. Quigley may appear in this matter on behalf of Plaintiffs, subject to the provisions of Rule 83.9 of the District of Connecticut Local Rules of Civil Procedure and under the supervision of attorney Michael J. Wishnie. Signed by Judge Charles S. Haight, Jr. on 06/25/2019. (Chen, C.) (Entered: 06/25/2019)
65 ELECTRONIC ORDER AND NOTICE. Plaintiffs suggest that the Court reinstate a timeline for Defendant's intended Motion to Dismiss. Doc. 61 at 5 n.1. Defendant also appears to imply that no further delay is warranted for such a motion. Doc. 62 at 1 ("Defendant respectfully requests the Court either deny Plaintiffs' request for extra−record discovery or to stay Plaintiffs' demand for extra−record discovery until after the Court rules on Defendant's anticipated Motion to Dismiss and/or for Remand for de novo adjudication as authorized by the Kurta Memo."). The parties continue to dispute, with vigor, whether pre−trial discovery should exceed the administrative records generated by the two named class representatives. But counsel for Defendant has also said he intends to make a motion to dismiss the Complaint, although he has not yet done so. The Court's governance of the case will be enhanced by considering the motion to dismiss before adjudicating the panoply of issues presented by the plaintiff class's challenged demands for extra−record discovery. Accordingly, Defendant must file a Motion to Dismiss and/or for Remand on or before July 26, 2019. Plaintiffs must file a response by August 6, 2019, and Defendant may file a reply by August 12, 2019. Parties should be prepared to argue the motion on August 14, 2019, at 10:00 a.m. in the Courtroom on the 17th Floor of the Connecticut Financial Building, 157 Church Street, New Haven, Connecticut. All other case deadlines remain stayed. Signed by Judge Charles S. Haight, Jr. on 07/12/2019. (Chen, C.) (Entered: 07/12/2019)
Set Deadlines/Hearings: Motion to Dismiss due by 7/26/2019. (Barry, Donna) (Entered: 07/18/2019)
66 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Oral Argument set for 8/14/2019 at 10:00 AM in Connecticut Financial Center, 17th Flr., 157 Church Street, New Haven, CT before Judge Charles S. Haight Jr. (Barry, Donna) (Entered: 07/18/2019)
67 MOTION to Dismiss by Richard V Spencer.Responses due by 8/16/2019 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A)(Nelson, David) (Entered: 07/26/2019)

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68 Memorandum in Opposition re 67 MOTION to Dismiss filed by Tyson Manker, National Veterans Council for Legal Redress. (Kohlmann, Susan) (Entered: 08/06/2019)
69 REPLY to Response to 67 MOTION to Dismiss filed by Richard V Spencer. (Nelson, David) (Entered: 08/12/2019)
70 Minute Entry. Proceedings held before Judge Charles S. Haight, Jr: Oral Argument held on 8/14/2019 taking under advisement 67 MOTION to Dismiss filed by Richard V Spencer. Total Time: 1 hours and 29 minutes. (Court Reporter Falzarano Court Reporters.) (Freberg, B) (Entered: 08/14/2019)
71 TRANSCRIPT of Proceedings: Type of Hearing: Oral Argument. Held on 8−14−19 before Judge Charles S. Haight. Court Reporter: Falzarano. 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 9/17/2019. Redacted Transcript Deadline set for 9/27/2019. Release of Transcript Restriction set for 11/25/2019. (Falzarano, D.) (Entered: 08/27/2019)
72 NOTICE by Richard V Spencer 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 2, part 1, # 5 Volume 2, part 2, # 6 Volume 2, part 3, # 7 Volume 2, part 4, # 8 Volume 2, part 5, # 9 Volume 2, part 6, # 10 Volume 2, part 7, # 11 Volume 2, part 8, # 12 Volume 2, part 9)(Nelson, David) (Entered: 08/28/2019)
73 NOTICE of Supplemental Authority by All Plaintiffs (Attachments: # 1 Exhibit Exhibit A)(Wishnie, Michael) Modified on 9/13/2019 to correct document title (Nuzzi, Tiffany). (Entered: 09/13/2019)
74 MOTION for Leave to Appear Law Student Intern Appearance Attorney Michael J. Wishnie. by Tyson Manker, National Veterans Council for Legal Redress. (Attachments: # 1 Law Student Intern Appearance)(Wishnie, Michael) (Entered: 10/09/2019)
75 MOTION for Leave to Appear Law Student Intern Appearance Attorney Michael J. Wishnie. by Tyson Manker, National Veterans Council for Legal Redress. (Attachments: # 1 Law Student Intern Appearance)(Wishnie, Michael) (Entered: 10/09/2019)
76 ELECTRONIC ORDER granting Plaintiffs' 74 and 75 Motions for Leave for Law Student Interns to Appear. "Any eligible law student intern may, with the Court's approval, under supervision by a member of the bar, appear on behalf of any person who has consented in writing to the intern's appearance." D. Conn. L. Civ. R. 83.9(a). The interns have the consent of clients and a supervising attorney, and they also certify they are enrolled in good standing in law school, have completed at least two semesters of credit in legal studies, and are neither employed nor receiving compensation from clients in this case. See Docs. 74 −1, 75 −1; see also D. Conn. L. Civ. R. 83.9(c). Accordingly, law student interns Mollie L. Berkowitz and Kayla N. Morin may appear in this matter on behalf of Plaintiffs, subject to the provisions of Rule 83.9 of the District of Connecticut Local Rules of Civil Procedure and under the supervision of attorney Michael J. Wishnie. Signed by Judge Charles S. Haight, Jr. on October 10, 2019. (Gitlin, A.) (Entered: 10/10/2019)
77 Supplemental NOTICE by Tyson Manker, National Veterans Council for Legal Redress re 68 Memorandum in Opposition to Motion, 69 Reply to Response to Motion, 67 MOTION to Dismiss (Wishnie, Michael) (Entered: 10/21/2019)
78 RESPONSE re 77 Notice (Other) filed by Richard V Spencer. (Nelson, David) (Entered: 10/22/2019)

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79 RULING (see attached). Defendant's 67 Motion to Dismiss is DENIED. Defendant's alternative 67 Motion for a Remand is GRANTED IN PART, in that the applications of Plaintiffs Manker and Doe for discharge upgrades are remanded to the Naval Discharge Review Board ("NDRB") for further administrative consideration. The NDRB must issue its decisions following the consideration on remand not later than March 7, 2020. Otherwise, Defendant's Motion for a Remand is DENIED. Additionally, proceedings with respect to the claims of Plaintiffs Manker and Doe are STAYED pending decisions on the remands directed in the attached Order. No other proceedings are stayed. Discovery in this case is not limited to the administrative records generated by the applications of Plaintiffs Manker and Doe; and, discovery will be supervised by Magistrate Judge Spector pursuant to a separate Order of Reference. Signed by Judge Charles S. Haight, Jr. on November 7, 2019. (Gitlin, A.) (Entered: 11/07/2019)
80 ORDER OF REFERRAL TO MAGISTRATE JUDGE (see attached). In accordance with the Court's 79 Ruling on Defendant's Motion to Dismiss or Remand and On Cross−Motions for Discovery, this case is respectfully referred to United States Magistrate Judge Robert M. Spector to supervise discovery and resolve discovery disputes. Signed by Judge Charles S. Haight, Jr. on November 7, 2019. (Gitlin, A.) Modified text on 11/7/2019 (Barry, Donna). (Entered: 11/07/2019)
81 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 11/19/2019 at 9:30 AM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873−8017; access code: 7040261. (Mallon, Kathleen) (Entered: 11/12/2019)
82 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 11/19/2019 at 9:30 a.m. Upon the defendant's request, and with the consent of the plaintiffs, the telephonic status conference currently scheduled for 11/19/2019 at 9:30 a.m. is adjourned to 11/22/2019 at 3:30 p.m. before Judge Robert M. Spector. Please use the following conference call in number: (877) 873−8017; access code: 7040261. (Mallon, Kathleen) (Entered: 11/15/2019)
83 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic status conference was held on 11/22/2019. 20 minutes (Mallon, Kathleen) (Entered: 11/22/2019)
84 MEMORANDUM OF CONFERENCE AND ORDER: As discussed during today's telephonic conference, the parties are directed to meet and confer and file a Joint Status Report by December 6, 2019. 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 disagree, if any; and 3) provide a proposed schedule, including a deadline for close of discovery. The parties shall also indicate in the Joint Status Report whether they intend to proceed with the February 19, 2020 settlement conference jointly with the parties in Kennedy v. Fanning, 16−CV−2010 (CHS). Signed by Judge Robert M. Spector on 11/22/2019.(Mallon, Kathleen) (Entered: 11/22/2019)
85 ORDER: A settlement conference is set on February 19, 2020. Please see the attached Settlement Conference Order for detailed instructions and deadlines. Signed by Judge Robert M. Spector on 11/22/2019. (Mallon, Kathleen) (Entered: 11/22/2019)
86 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 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: 11/22/2019)

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87 Joint STATUS REPORT by Tyson Manker, National Veterans Council for Legal Redress. (Wishnie, Michael) (Entered: 12/06/2019)
88 ORDER: On December 6, 2019, the parties filed a joint status report with a list of the discovery issues on which there is agreement and a list of things that the parties are in the process of discussing or on which they disagree. The parties are not requesting Court intervention at this juncture and instead ask that the Court enter a proposed discovery order. Based on the representations contained in the Joint Status Report, the Court orders that discovery close on July 31, 2020 and that a settlement conference be scheduled in this case and in the related case of Kennedy v. McCarthy, 3:16−CV−2010 (CSH) on February 19, 2020. In addition, the Court directs the parties to submit, by December 13, 2019, a proposed, stipulated discovery order for the Courts review which tracks those areas set out in the Joint Status Report where there is agreement, as there is no such order attached to the Report, and there appear to be areas in Section 1 of the Report which remain unresolved. Signed by Judge Robert M. Spector on 12/9/2019. (Mallon, Kathleen) (Entered: 12/09/2019)
89 NOTICE of Appearance by Natalie Nicole Elicker on behalf of Thomas B. Modley , Acting Secretary of the Navy (Elicker, Natalie) (Entered: 12/11/2019)
90 Joint MOTION for Protective Order by Tyson Manker, National Veterans Council for Legal Redress.Responses due by 1/3/2020 (Attachments: # 1 Exhibit A − Proposed Protective Order)(Kohlmann, Susan) (Entered: 12/13/2019)
91 PROPOSED ORDER re 88 Order,,,, − Proposed Discovery Order by Tyson Manker, National Veterans Council for Legal Redress. (Kohlmann, Susan) (Entered: 12/13/2019)
92 PROTECTIVE ORDER: The parties' Joint Motion for Protective Order (Doc. No. 90) is GRANTED. Please see the attached Protective Order. Signed by Judge Robert M. Spector on 12/16/2019. (Mallon, Kathleen) (Entered: 12/16/2019)
93 DISCOVERY ORDER: Please see attached. Signed by Judge Robert M. Spector on 12/18/2019. (Mallon, Kathleen) (Entered: 12/18/2019)
94 ORDER OF REFERRAL (see attached) referring the case to Magistrate Judge Robert M. Spector for the purpose of considering settlement by the parties. Signed by Judge Charles S. Haight, Jr. on January 7, 2020. (Dorais, L.) (Entered: 01/07/2020)
95 MOTION for Nicole Taykhman to Withdraw as Attorney by Tyson Manker, National Veterans Council for Legal Redress. (Taykhman, Nicole) (Entered: 01/14/2020)
96 ELECTRONIC ORDER. Attorney Nicole Taykhman's 95 Motion to Withdraw Appearance on behalf of Plaintiffs is GRANTED. "Withdrawals of appearances may be accomplished only upon motion, which normally will not be granted except upon a showing that other counsel has appeared." D. Conn. L. Civ. R. 7(e). Attorney Taykhman represents, and the docket reflects, that "[o]ther attorneys from Jenner & Block LLP, as well as from the Veterans Legal Services Clinic of the Jerome N. Frank Legal Services Organization at Yale Law School, will continue to represent Plaintiffs in this action." Doc. 95, at 1. The Court is satisfied that Plaintiffs will not be harmed by withdrawal. Accordingly, Attorney Taykhman's appearance in this matter is hereby TERMINATED. Signed by Judge Charles S. Haight, Jr. on January 15, 2020. (Gitlin, A.) (Entered: 01/15/2020)
97 RESPONSE by Tyson Manker, National Veterans Council for Legal Redress/ Letter to Magistrate Judge Robert M. Spector Regarding Discovery. (Attachments: # 1 Exhibit A)(Kohlmann, Susan) (Entered: 01/15/2020)
98 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 1/17/2020 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: 01/16/2020)

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99 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 1/17/2020 at 4:00 p.m. Upon the request of counsel, the telephonic discovery conference set for January 17, 2020 at 4:00 p.m. is adjourned to January 21, 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: 01/17/2020)
100 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic discovery conference was held on 1/21/2020. 20 minutes (Mallon, Kathleen) (Entered: 01/21/2020)
101 ORDER: Upon the consent of the parties, and as discussed during today's telephonic discovery conference, it is HEREBY ORDERED that the plaintiffs may serve the subpoena attached as Exhibit A to the plaintiffs' January 15, 2020 letter motion (Doc. No. 97−1) on the Department of Defense ("DOD") to allow for a deposition of a DOD representative on January 30, 2020 pursuant to Federal Rule of Civil Procedure 30(b)(6). Signed by Judge Robert M. Spector on 1/21/2020. (Mallon, Kathleen) (Entered: 01/21/2020)
102 NOTICE of Appearance by Renee A. Burbank on behalf of Tyson Manker, National Veterans Council for Legal Redress (Burbank, Renee) (Entered: 01/22/2020)
103 RESPONSE Letter to Magistrate Judge Robert M. Spector Regarding Discovery filed by Tyson Manker, National Veterans Council for Legal Redress. (Wishnie, Michael) (Entered: 01/24/2020)
104 ORDER: The Court is in receipt of the plaintiffs' letter motion. (Doc. No. 103). The plaintiffs' applications are GRANTED. The plaintiffs may serve the subpoena attached as Exhibit A to the plaintiffs' January 15, 2020 letter motion (Doc. No. 97−1) on the Department of Defense ("DOD") to allow for a deposition of a DOD representative on February 5, 2020. The plaintiffs shall serve their settlement demand on defendant by February 7, 2020. Signed by Judge Robert M. Spector on 1/27/2020.(Mallon, Kathleen) (Entered: 01/27/2020)
105 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 2/3/2020 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: 02/03/2020)
106 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 2/4/2020 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: 02/03/2020)
107 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic status conference was held on 2/3/2020. 20 minutes (Mallon, Kathleen) (Entered: 02/04/2020)
108 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic status conference was held on 2/4/2020. 15 minutes (Mallon, Kathleen) (Entered: 02/04/2020)
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 2/7/2020 at 10:30 AM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873−8017; access code: 7040261. (Mallon, Kathleen) (Entered: 02/04/2020)

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110 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 2/19/2020. Because of a discovery dispute that arose on February 3, 2020, the settlement conference currently set for 2/19/2020 is adjourned to 3/17/2020 at 10:00 AM. The settlement conference will be held in Chambers Room 303, 141 Church St., New Haven, CT before Judge Robert M. Spector. The settlement conference in Kennedy v. Fanning, 16CV2010 (CSH) will go forward on February 19, 2020. (Mallon, Kathleen) (Entered: 02/05/2020)
111 ORDER: In light of the adjournment of the settlement conference to 3/17/20 (Doc. No. 110), the telephonic conference set for 2/7/20 at 10:30 a.m. is canceled. Signed by Judge Robert M. Spector on 2/5/2020. (Mallon, Kathleen) (Entered: 02/05/2020)
112 RESPONSE Letter to Magistrate Judge Robert M. Spector Regarding Discovery filed by Tyson Manker, National Veterans Council for Legal Redress. (Wishnie, Michael) (Entered: 02/24/2020)
113 ORDER re 112 Response filed by Tyson Manker, National Veterans Council for Legal Redress: Defendant shall file a response, of no more than five pages, to the plaintiff's brief by 9:00 a.m. on February 28, 2020. A telephonic discovery conference call to address this discovery issue will be held on February 28, 2020 at 4:30 p.m. Signed by Judge Robert M. Spector on 2/25/2020.(Watson, M.) (Entered: 02/25/2020)
114 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 2/28/2020 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)
115 RESPONSE re 112 Response filed by Thomas B Modly. (Elicker, Natalie) (Entered: 02/25/2020)
116 MOTION for Leave to Appear Law Student Intern Bardia Faghihvaseghi Attorney Michael J. Wishnie. by Tyson Manker, National Veterans Council for Legal Redress. (Attachments: # 1 Affidavit Law Student Intern Appearance)(Wishnie, Michael) (Entered: 02/26/2020)
117 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. *PLEASE NOTE CHANGE IN TIME: RESET on Febraury 28, 2020 FROM 4:30 p.m. to 4:00 p.m. The Telephonic Discovery Status Conference set for 2/28/2020 will be held 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: 02/27/2020)
118 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic status conference was held on 2/28/2020. 25 minutes (Mallon, Kathleen) (Entered: 02/28/2020)
119 ORDER: The plaintiff's Motion for Leave to Appear Law Student Intern (Doc. No. 116) is GRANTED. Signed by Judge Robert M. Spector on 2/28/2020. (Mallon, Kathleen) (Entered: 02/28/2020)
120 MEMORANDUM OF CONFERENCE AND ORDER: As discussed at today's discovery conference, and as agreed upon by the parties, the defendant shall produce to the plaintiffs the requested sample of 100 underlying applications by March 9, 2020. The parties shall submit their settlement memorandum by email, copying opposing counsel, to RMS_Settlement@ctd.uscourts.gov, by March 13, 2020.

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Signed by Judge Robert M. Spector on 2/28/2020. (Mallon, Kathleen) (Entered: 02/28/2020)
121 RESPONSE − Letter to Magistrate Judge Robert M. Spector Regarding Discovery filed by Thomas B Modly. (Attachments: # 1 Production agreement letter

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(unsigned))(Elicker, Natalie) (Entered: 03/06/2020)
122 RESPONSE Letter to Magistrate Judge Robert M. Spector Regarding Discovery filed by Tyson Manker, National Veterans Council for Legal Redress. (Wishnie, Michael) (Entered: 03/09/2020)
123 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 3/9/2020 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: 03/09/2020)
124 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic discovery conference was held on 3/9/2020. 25 minutes (Mallon, Kathleen) (Entered: 03/09/2020)
125 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 Conference regarding the March 17, 2020 Settlement Conference is set for 3/13/2020 at 11:00 AM before Judge Robert M. Spector. Please use the following dial in for this call: (877) 873−8017, access code: 7040261. (Watson, M.) (Entered: 03/12/2020)
126 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference was held on 3/13/2020. 20 minutes (Mallon, Kathleen) (Entered: 03/13/2020)
127 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 3/17/20. As discussed during today's telephonic conference, with the parties' consent, in response to the risks posed by COVID−19 and the need to avoid travel, the settlement conference currently scheduled for 3/17/20 is adjourned to 4/14/2020 at 10:00 AM. The settlement conference will be held in Chambers Room 303, 141 Church St., New Haven, CT before Judge Robert M. Spector. (Mallon, Kathleen) (Entered: 03/13/2020)
128 ORDER: A settlement conference is set for 4/14/2020. Please see the attached Settlement Conference Order for detailed instructions and deadlines. Signed by Judge Robert M. Spector on 3/13/2020. (Mallon, Kathleen) (Entered: 03/13/2020)
129 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 4/1/2020 at 9:30 AM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873−8017; access code: 7040261. (Mallon, Kathleen) (Entered: 03/13/2020)
130 NOTICE by Thomas B Modly of decisions on remand, and Defendant travel restriction (Attachments: # 1 Exhibit A − Manker decision, # 2 Exhibit B − Doe decision)(Elicker, Natalie) (Entered: 03/19/2020)
131 MOTION to Expedite Motion for Expedited Supplementation of Administrative Record and to Set a Schedule for Summary Judgment by Tyson Manker, National Veterans Council for Legal Redress. (Wishnie, Michael) (Entered: 03/23/2020)
132 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference was held on 4/1/2020. 15 minutes (Mallon, Kathleen) (Entered: 04/01/2020)
133 ORDER: In light of the risks posed by COVID−19, and the actions taken by the District of Connecticut continuing all in−court civil proceedings scheduled to take place on or before May 15, 2020, the in−person settlement conference set for April 14, 2020 is canceled. As discussed during today's telephonic conference, and agreed to by the parties, the Court will instead conduct the settlement conference through a series of ex parte telephonic conferences. A telephonic conference with the plaintiffs only will

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be held on April 6, 2020 at 2:00 p.m. The plaintiffs shall submit their ex parte settlement memorandum to RMS_Settlement@ctd.uscourts.gov by April 5, 2020. This Order supersedes the previously−issued Settlement Conference Order (Doc. No. 128). Signed by Judge Robert M. Spector on 4/1/2020.(Mallon, Kathleen) (Entered: 04/01/2020)
134 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 plaintiffs only is set for 4/6/2020 at 2:00 PM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873−8017; access code: 7040261. (Mallon, Kathleen) (Entered: 04/01/2020)
135 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference with plaintiffs was held on 4/6/2020. 10 minutes (Mallon, Kathleen) (Entered: 04/06/2020)
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 settlement conference with defendant only is set for 4/7/2020 at 1:00 PM before Judge Robert M. Spector. Please use the following conference call in number: (877) 873−8017; access code: 7040261. (Mallon, Kathleen) (Entered: 04/06/2020)
137 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference with the defendant was held on 4/7/2020. 30 minutes (Mallon, Kathleen) (Entered: 04/07/2020)
138 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 4/15/2020 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: 04/14/2020)
139 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference with defendant was held on 4/15/2020. Total Time: 1 hours and 15 minutes (Mallon, Kathleen) (Entered: 04/15/2020)
140 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 5/6/2020 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: 05/05/2020)
141 Minute Entry for proceedings held before Judge Robert M. Spector: A telephonic settlement conference with plaintiffs was held on 5/6/2020. 25 minutes (Mallon, Kathleen) (Entered: 05/07/2020)

 
 Case 3:18-cv-00372-CSH Document 33 Filed 11/15/18 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

TYSON MANKER, on behalf of himself and all others similarly situated, and NATIONAL VETERANS COUNCIL FOR LEGAL REDRESS, on behalf of itself, its members, and all others similarly situated,
Plaintiffs, v.
RICHARD V. SPENCER, Secretary of the Navy,
Defendant.

Civil Action No. 3:18-cv-372 (CSH)
NOVEMBER 15. 2018

RULING ON PLAINTIFFS' MOTION FOR CLASS CERTIFICATION HAIGHT, Senior District Judge:
Plaintiffs bring this class action on behalf of Navy and Marine Corps veterans who were allegedly denied discharge upgrades by the Naval Discharge Review Board in a manner violative of the Administrative Procedure Act and the Fifth Amendment. Plaintiffs move this Court to certify "a proposed class consisting of all Navy, Navy Reserve, Marine Corps, and Marine Corps Reserve veterans of the Iraq and Afghanistan Era who: (a) were discharged with less than honorable discharges[;] (b) have not received discharge upgrades to Honorable; [and] (c) have diagnoses of PTSD, TBI, or PTSD-related conditions, or records documenting one or more symptoms of PTSD, TBI, or PTSD-related conditions at the time of discharge, attributable to their military service." Doc. 12 at 1. This Ruling resolves the motion.

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I. STANDARD OF REVIEW "The party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23's requirements has been met." Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010). The Court may "accept the complaint allegations as true in a class certification motion." Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656, 661 n.15 (2d Cir. 1978). "[A] district court may only certify a class if it 'is satisfied, after a rigorous analysis,' that the requirements of Rule 23 are met." In re Am. Int'l Grp., Inc. Sec. Litig., 689 F.3d 229, 237–38 (2d Cir. 2012) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011)). However, "[r]ule 23 is given liberal rather than restrictive construction, and courts are to adopt a standard of flexibility." Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997) (internal citation omitted). "In determining whether class certification is appropriate, a district court must first ascertain whether the claims meet the preconditions of Rule 23(a) of numerosity, commonality, typicality, and adequacy." Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201–02 (2d Cir. 2008). A court must then determine whether one of three conditions listed under Rule 23(b) is met. Fed. R. Civ. P. 23(b). Plaintiffs seek certification under Rule 23(b)(2), [Doc. 12-1 ("Pls. Mem.") at 15], which applies where "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." Fed. R. Civ. P. 23(b)(3). "Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class." Dukes, 564 U.S. at 360–61.
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II. FACTUAL BACKGROUND The following is derived from Plaintiffs' complaint, [Doc. 1 ("Compl.")], allegations of which are taken as true for the purposes of this Ruling. Upon discharge, military personnel receive a certification characterizing their service, e.g., "Honorable" or "Dishonorable," which affects their eligibility for veterans' benefits and services. Compl. ¶¶ 6–7. Veterans may apply to a review board, such as the Naval Discharge Review Board ("NDRB"), to upgrade their discharge characterization. Id. ¶ 9. In 2014, then-Secretary of Defense Chuck Hagel instructed the NDRB and other boards to give "special" or "liberal" consideration to applications from veterans diagnosed with post-traumatic stress disorder ("PTSD") and to consider PTSD and PTSD-related conditions as "potential mitigating factors in the misconduct that caused" a lesser characterization than "Honorable." Id. ¶¶ 11–12; see also Doc. 1-1 ("Hagel Memo"). Congress codified the "liberal consideration" policy in 2016. See 10 U.S.C. § 1553(d)(3)(A)(ii) (2016); Compl. ¶ 13. Notwithstanding the policy change, the NDRB granted discharge upgrades in only 15 percent of cases in which PTSD was alleged to have been a factor in characterization. Id. ¶ 180. This is in stark contrast to rates, 45 percent and 37 percent, respectively, by the Army Discharge Review Board and Air Force Discharge Review Board. Id. ¶ 180. Plaintiffs allege that the NDRB inconsistently applies the policy as first set forth by the Hagel Memo, often without sufficient explanations to back up its decisions denying an upgrade. Id. ¶¶ 183–86. Moreover, the NDRB fails to timely publish or publish at all these decisions despite legal obligations to make this information public. Id. ¶ 188. The lack of clear precedent, in terms of both quality and quantity, causes confusion about the NDRB's standards for upgrading characterizations. Id. ¶ 189.
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In the case at bar, it is not clear whether the NDRB denied Named Plaintiff Tyson Manker's application to upgrade his discharge characterization from the Marine Corps notwithstanding his PTSD diagnosis, which under the Hagel Memo should have worked in his favor. Id. ¶¶ 26, 58, 60–61, 84–94. In addition to failing to provide adequate explanations, the NDRB's decision also made multiple factual errors and misapplied decision-making rules. Id. ¶¶ 84–94.
The other Named Plaintiff, the National Veterans Council for Legal Redress ("NVCLR"), is a non-profit that assists veterans with less-than-Honorable discharges, such as John Doe, and educates the public about veterans issues. Id. ¶¶ 96–101. Like Manker, Doe also developed PTSD from his time at war but was denied an upgrade discharge by the NDRB. Id. ¶¶ 118, 127, 140, 146. The NDRB most recently denied Doe an upgrade in a 2017 decision that acknowledged his PTSD status, but nonetheless stated that it did not excuse or mitigate the misconduct that led to his characterization. Id. ¶ 147.
Plaintiffs file this action against Defendant Richard V. Spencer, in his official capacity as United States Secretary of the Navy, to challenge the NDRB's characterization upgrade decisionmaking procedures, which are allegedly in violation of the Administrative Procedure Act and the Fifth Amendment's due process protections. Id. at 3–4.
III. DISCUSSION Pending before the Court is Plaintiffs' Motion for Class Certification. Doc. 12. They seek certification of a proposed class of "all Navy, Navy Reserve, Marine Corps, and Marine Corps Reserve veterans who served" between October 7, 2001, and the present, and who:
(a) were discharged from the Navy, Navy Reserve, Marine Corps, or Marine Corps Reserve with less-than-Honorable statuses, including General and Other-than-Honorable discharges but excluding Bad
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Conduct or Dishonorable discharges; (b) have not received upgrades of their discharge statuses to Honorable; and (c) have diagnoses of PTSD, [traumatic brain injury ("TBI")], or other related mental health conditions, or records documenting one or more symptoms of PTSD, TBI or other related mental health conditions at the time of discharge, attributable to their military service under the Hagel Memo standards of liberal or special consideration. Pls. Mem. at 16. A. Standing and Exhaustion Defendant asserts that the Court cannot even consider class certification because it lacks jurisdiction to grant injunctive relief sought by Plaintiffs. Doc. 19 ("Def. Mem.") at 9. Specifically, Defendant asserts that this Court lacks jurisdiction because Plaintiffs cannot establish Article III standing—they purportedly cannot show an injury in fact nor can this Court provide the relief sought. Id. at 9–10; see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (outlining elements of standing: injury in fact, causation, and redressability). Defendant also argues that the Court should not consider this case because Plaintiffs have not exhausted administrative remedies. Def. Mem. at 14–15. "A motion for class certification is not an occasion for examination of the merits of the case." Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999), overruled by In re IPO, 471 F.3d 24, 42 (2d Cir. 2006) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974)). Since Claridad and Eisen, this rule has evolved to recognize that class certification analysis may sometimes require a Court to resolve a merits dispute. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) (noting "rigorous analysis" of Rule 23 requirements will often entail "some overlap
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with the merits of the plaintiff's underlying claim"). "If any factual disputes arose as to any of the requirement elements of Rule 23, such questions could be resolved at this early stage of the proceedings." Butto v. Collecto Inc., 290 F.R.D. 372, 379–80 (E.D.N.Y. 2013) (clarifying what remains of the Caridad decision, including legal proposition that it is improper for a court to assess merits unrelated to a Rule 23 requirement). However, the Court is limited when answering merits dispute within the context of determining class certification. See Amgen, Inc. v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013) ("Rule 23 grants courts no license to engage in freeranging merits inquiries at the certification stage. Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.").
This Court understands its responsibility at this stage to resolve factual disputes if they concern one of the requirements for a class action under Rule 23 of the Federal Rules of Civil Procedure. However, to the extent a merits issue does not involve a Rule 23 requirement, resolution of the issue at this time is neither necessary nor appropriate. The Court also cautions that any factual determinations made in this ruling are not "binding on the trier of fact in its determination of the merits." Johnson v. Nextel Comms. Inc., 780 F.3d 128, 138 (2d Cir. 2015).
Defendant seems to frame standing as a jurisdictional issue that ought to be resolved immediately by raising merits disputes within his argument regarding lack of standing, e.g., when contending there is no injury in fact. However, he cites no precedent that the Court must decide on standing before class certification when these issues are not interdependent. See Def. Mem. at 13–14 (citing cases standing for proposition that sometimes a court may need to resolve mixed questions of merits and class certification at the certification stage). Indeed, this Court granted parties' joint
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request to allow Defendant to file his answer to Plaintiffs' complaint, in which he would presumably first raise defenses like jurisdictional ones, until after the class certification issue was resolved. See Doc. 10 at 1 ("Parties wish to resolve issues regarding class certification prior to briefing the Defendant's Answer, Motion to Dismiss, or other responsive pleading."); Doc. 11. Defendant will have the opportunity to raise such defenses and other issues outside of this present motion. The Court thus declines to address issues that are wholly unrelated to class certification at the moment. Accordingly, the Court will address factual disputes raised by Defendant's standing and exhaustion arguments only when and if they arise in the Court's Rule 23 analysis, detailed infra. B. Rule 23(a) Requirements
Rule 23(a) of the Federal Rules of Civil Procedure sets forth the conditions, all of which must be met, to certify a class: "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). The Court will examine each of these requirements in detail, and then, if satisfied, proceed with a Rule 23(b) analysis.
1. Numerosity The first factor for class certification is numerosity, which refers to the prerequisite that the proposed class of plaintiffs must be so large that joinder is "impracticable." Fed. R. Civ. P. 23(a)(1). See also Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Medco Managed Care, L.L.C., 504 F.3d 229, 244–45 (2d. Cir. 2007) ("The numerosity requirement in Rule 23(a)(1) does not mandate that joinder of all parties be impossible—only that the difficulty or inconvenience
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of joining all members of the class make use of the class action inappropriate."). "Numerosity is presumed for classes larger than forty members." Pennsylvania Pub. Sch. Emps.' Ret. Sys. v. Morgan Stanley & Co., Inc., 772 F.3d 111, 120 (2d Cir. 2014) (citing Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995)).
Defendant does not appear to contest that Plaintiffs' proposed class satisfies the numerosity requirement. Def. Mem. at 18. However, it is the Plaintiffs' affirmative burden to demonstrate all class action factors, and so the Court will examine Plaintiffs' arguments. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Plaintiffs submit that the NDRB has denied more than 85 percent of applications from hundreds of veterans with PTSD since issuance of the Hagel Memo. Pls. Mem. at 17. These applications were improperly subjected to the "presumption of regularity in governmental affairs," which unfairly disadvantaged them Id. at 17–18. Plaintiffs also cite additional statistics concerning the number of Navy and Marine Corps veterans with less-thanHonorable discharges and those with PTSD, TBI, or related diagnoses. Id. at 18.
The Second Circuit presumption for numerosity has been met. Even if the NDRB denied 85 percent of only a hundred PTSD-affected Navy and Marine Corps veterans' applications, there would be at least eighty-five applicants who may have a claim. See Pennsylvania Pub. Sch. Emps.' Ret. Sys., 772 F.3d at 120 (holding forty members meets the presumption for numerosity). Joinder would likely be burdensome and impracticable.
2. Commonality The commonality prong asks whether "there are questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). "Commonality requires the plaintiff to demonstrate that the class members 'have suffered the same injury.'" Dukes, 564 U.S. at 349–50 (quoting Gen. Tel. Co. of Sw.
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v. Falcon, 457 U.S. 147, 157 (1982)). This requirement goes beyond having "suffered a violation of the same provision of law." Dukes, 564 U.S. at 350. Rather, the claims of the class "must depend upon a common contention . . . of such nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. What matters is "the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation." Id.
As Plaintiffs point out, "for the purposes of Rule 23(a)(2), [e]ven a single [common] question will do." Pls. Mem. at 19 (quoting Dukes, 564 U.S. at 359 (internal quotation marks omitted)). Nonetheless, Plaintiffs offer five potential common questions. Pls. Mem. at 19–21. These questions concern, in brief, whether Defendant acted arbitrarily and capriciously without supporting evidence, frustrated class members' ability to prepare successful applications, failed to maintain important records, improperly practiced a policy of presuming regularity in government affairs, and demonstrated a systemic institutional bias against class members. Id. Defendant maintains the answer to all these questions is "no." Def. Mem. at 19–22. He asserts that "Plaintiffs have provided no evidence establishing commonality or typicality about the claims in this case that would make class certification appropriate." Id. at 21.
Before delving into the commonality analysis, the Court finds it appropriate to first examine Defendant's injury-in-fact argument. Deciding on whether class members have suffered the "same injury" necessarily asks whether there is an injury in the first place. Defendant contends that the Hagel Memo did not apply to Named Plaintiffs at the time of their applications, so "no injury in fact to the Plaintiffs or the purported class []is traceable to the actions of the Defendant." Id. at 10–11. Plaintiffs believe otherwise and point to multiple alleged facts that suggest the Hagel Memo did
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apply, or, at least, the NDRB referred to the Hagel Memo during the relevant time period. Doc. 25 ("Pls. Reply") at 3.
On the basis of the limited facts known to the Court so far, Plaintiffs have demonstrated an injury in fact that is a "concrete and particularized harm" to a "legally protected interest." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). The proposed class of veterans appears to have suffered an injury—a denied upgrade of their discharge certification—which, in turn, affected their eligibility for benefits like the GI Bill program, and, ironically, PTSD treatment from the Department of Veterans Affairs. Compl. ¶¶ 7–8, 62–63. Moreover, their injury seems traceable to the Department of the Navy's alleged misapplication of the Hagel Memo and related policy. Defendant acknowledges that the "NDRB referenced the Hagel Memo without indicating how or to what extent it was applying the memo's guidance." Def. Mem. at 11. Defendant also acknowledges that the NDRB began applying the liberal consideration standard after Congress codified the standard in December 2016, but Under Secretary Andrew Kurta had to issue "clarifying guidance" in August 2017. Id. at 6–7; see also Doc. 12-2 ("Kurta Memo"). All of this seems to suggest, at the very least, internal confusion within the NDRB about the Hagel Memo's applicability during and after the consideration of applications from veterans with PTSD, raising the common question of when exactly veterans were legally entitled to a more generous review standard. Defendant appears to point to issuance of the Kurta Memo as the operative date, [Def. Mem. at 7], whereas Plaintiff believes it to be much earlier, [Pls. Reply at 3]. At this point of litigation, the evidence that Plaintiff has presented before discovery, e.g., invocation of the Hagel Memo in NDRB decisions and implementation of de novo review for previously denied applications, is enough to suggest the actual operative date could have been before the Kurta Memo, and thus, the proposed class may have
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suffered an injury in fact traceable to the Defendant during the relevant time period. Returning to the heart of parties' commonality arguments, the Court first looks at Defendant's
contention that Plaintiffs have failed to satisfy the burden of proof to show commonality, and so their proposed common questions must be answered in the negative. Def. Mem. at 19–22. Defendant is correct when asserting that Plaintiffs "must be prepared to prove that there are in fact [ . . . ] common questions of law or fact." Def. Mem. at 19 (quoting Dukes, 564 U.S. at 350). However, Defendant misunderstands the evidentiary burden at this stage. In his analysis of each of Plaintiffs' proposed questions, Defendant is in effect contending that Plaintiffs must be able to provide evidence in support of their answers to the proposed questions at the class certification stage. That is only one way of approaching the commonality question. Dukes, 564 U.S. at 352–354 (describing Falcon's two ways of bridging the conceptual gap between an individual's claim and the existence of a class suffering the same injury). Moreover, although applied to Rule 23(b)(2), the Supreme Court has stated that class certification "requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class." Amgen, Inc. v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455, 459 (2013). This is because the purpose of class certification is "not to adjudicate the case; rather it is to select the method best suited to adjudication of the controversy fairly and efficiently." Id. at 460 (citations and internal quotation marks omitted). See also In Re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litig., 256 F.R.D. 82, 90 (D. Conn. 2009) ("[T]he pertinent legal inquiry at class certification is not whether the plaintiffs have proven [] the merits . . . but rather whether class-wide impact may be proven by evidence common to all class members." (citing In re Urethane Antitrust Litig., 251 F.R.D. 629, 636 (D. Kansas 2008) (internal quotation marks omitted))).
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The Court accordingly turns to whether resolving Plaintiffs' proposed common questions will result in common answers that are "central to the validity of each one of the claims in one stroke." Dukes, 564 U.S. at 350. That appears to be so. Plaintiffs' questions challenge the NDRB's procedures and standards in place when evaluating applications from PTSD-affected veterans, not the NDRB's denials themselves. This approach strikingly echoes the Supreme Court's approval of a way by which courts can approach the commonality issue: "if the employer 'used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).'" Dukes, 564 U.S. at 353 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 159 n.15 (1982)). For example, one of Plaintiffs' allegations is that the NDRB presumed regularity in government affairs, which biased the proposed class because of the "widespread systemic irregularities in mental health treatment and administrative separation processes within the Navy and Marine Corps." Pls. Mem. at 20. Finding common answers to Plaintiffs' questions would consequently aid resolution of class members' claims "in one stroke," e.g., by helping to determine whether the NDRB's adjudication process under presumed regularity indeed disadvantaged them even though such veterans were supposed to have been entitled to a more generous standard. See Dukes, 564 U.S. at 350. The centralized decision-making process, in which one panel of five members decides on all applications for discharge upgrades, also favors one lawsuit for all class members over multiple lawsuits for multiple members. See Pls. Mem. at 25.
Defendant stresses that the discharge process is a highly individualized review, with the outcome dependent upon the applicant's unique circumstances. Def. Mem. at 22. However,
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Plaintiffs are not challenging the outcome of any individual case. Rather, they are challenging the general policies that allegedly disadvantage the proposed class members' applications, regardless of their applications' individual merits. The low approval rates of discharge upgrades by the NDRB, in contrast to those of their counterparts in the Army and the Air Force, suggest a systemic difference in overall practice by the NDRB. See Compl. at 181. Plaintiffs' proposed questions home in on this systemic difference by asking what exactly was the NDRB's policy and how did it differ from the guidance that the NDRB should have followed. There may well be applications from PTSD-affected veterans who would still be denied an upgrade under a "liberal consideration" standard, but the merits of any individual NDRB characterization review is not at issue in this lawsuit. The process is what is at issue.
Defendant also points out that there are varying due process rights that apply to the different ways a service member can separate from the Navy or Marine Corps. Def. Mem. at 23. For example, a Sailor or Marine who "meets requisite service requirements or is recommended for an other than honorable discharge" will go through an administrative separation board or a Board of Inquiry. Id. Plaintiffs do not appear to argue this point, and indeed, their grievances are aimed at the NDRB, not any other adjudicatory board. This can be remedied by narrowing the proposed class definition. Accordingly, the Court will revise the proposed class definition, in part, to limit the class to those who "have not received upgrades of their discharge statuses to Honorable" from the NDRB only, to avoid a blanket inclusion of those denied upgrades to Honorable from all Navy recordscorrection boards.
With this limitation in place, the proposed class of members fulfill the requirements of the commonality prong. They share the "same injury" of being subject to the NDRB's purportedly unfair
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review process for characterization upgrade applications. A single lawsuit on their behalf would answer the questions raised by Plaintiffs, and likely other questions, common to all members' individual claims and conclude with a result appropriate for all members.
3. Typicality Typicality is similar to commonality and asks if "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3); Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). As with commonality, typicality helps determine "whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Falcon, 457 U.S. at 157 n.13. "Typicality requires that the disputed issue[s] of law or fact occupy essentially the same degree of centrality to the named plaintiff's claim as to that of other members of the proposed class." Mazzei v. Money Store, 829 F.3d 260, 272 (2d Cir. 2016); see also Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993) ("[T]ypicality requirement is satisfied when each class member's claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant's liability."). The "mere fact that an aggrieved private plaintiff is a member of an identifiable class of persons . . . is insufficient to establish his standing to litigate on their behalf of all possible claims of discrimination against a common employer." Falcon, 457 U.S. at 159 (discussing a class action brought by a MexicanAmerican employee against employer for racially discriminatory hiring and promoting practices). A plaintiff must show more for a court to infer that his treatment was typical of the defendant's practices. Id. at 158. "When it is alleged that the same unlawful conduct was directed at or affected
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both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims." Robidoux, 987 F.2d at 936–37.
Plaintiffs present two veterans' experiences as representative of the NDRB's general treatment of certification upgrade applications from those with PTSD, TBI, or PTSD-related conditions. Named Plaintiff Manker had presented evidence to the NDRB of his PTSD diagnosis, but the NDRB's rejection of his application purportedly failed to apply the "liberal consideration" standard. Compl. ¶ 86. Doe, a member of Named Plaintiff NVCLR, also developed PTSD from his military service, but was denied an upgrade from the NDRB for each of his three applications. Id. ¶ 146.
The Court has examined the NDRB "Discharge Review of Decisional Document[s]" for Manker and Doe. Docs. 1-3, 1-4, 1-5. It is arguably unclear from the NDRB's explanation of their denials what standard is being used nor when PTSD would mitigate misconduct. For example, the NDRB concluded that although Manker "may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service." Doc. 1-3 at 8. Manker, who was discharged for drug use and failing to prevent two junior Marines from using drugs, allegedly turned to illegal substances to soothe his PTSD symptoms. Compl. ¶¶ 54–56. This all occurred before Manker's PTSD diagnosis. Id. ¶¶ 60–61. It seems quite plausible to the Court that someone could suffer symptoms or decline to seek treatment for a yet-tobe-diagnosed condition, and indeed, this is something that the Hagel Memo acknowledged, especially for Vietnam veterans who served before PTSD was recognized as a legitimate medical condition, as a reason to implement a "liberal consideration" policy. Doc. 1-1 at 1 ("Quite often, however, the records of Service members who served before PTSD was recognized, including those
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who served in the Vietnam theater, do not contain substantive information concerning medical conditions in either Service treatment records or personnel records."). And yet, the NDRB's decision appears to use a stricter standard that seems to disbelieve that Manker could have suffered from PTSD without an official diagnosis and that his PTSD could have influenced his "willful" actions.
The two NDRB explanations for denying Doe's applications, attached as exhibits to the Complaint, also include the same or similar lines about how, despite the applicant's belief, PTSD did not excuse his "willful misconduct." See Docs. 1-4 at 4, 1-5 at 6. Along with other similarities between Manker and Doe's experiences, this suggests that the NDRB may have used the same standard to decide on applications for certification upgrades, but it was likely not the "liberal consideration" standard that Plaintiffs allege should have been used instead. This is also the chief contention of this class action suit. Manker and Doe both allegedly suffered the same injury of having been subject to the NDRB's usage of an incorrect standard, which is also the injury that they allege applies to proposed class members. Resolution of their claims would seem to resolve class members' claims because all of the claims arise from the NDRB's general policies and practices. See Robidoux v. Celani, 987 F.2d 931, 936–37 (2d Cir. 1993) (explaining the typicality requirement is met when named plaintiffs and the proposed class suffer from the same unlawful conduct). Hence, Plaintiffs' claims are typical of the class. For this reason too, the Court rejects Defendant's argument that review of certification upgrades is too individualized for a class-wide resolution. As explained supra, Plaintiffs' claims challenge the general policies allegedly disadvantaging both Named Plaintiffs' and the proposed class members' applications, regardless of their applications' individual merits. The Court is satisfied that the legal arguments Named Plaintiffs would be making are those that other proposed class members would be making as well because they have suffered the same
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injury from the NDRB, and thus finds that Plaintiffs have satisfied the requirements of the typicality prong.
4. Fair and Adequate Representation The fourth and final requirement of Rule 23(a) states that "the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). The rule "'serves to uncover conflicts of interest between named parties and the class they seek to represent,' as well as the 'competency and conflicts of class counsel.'" In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 827 F.3d 223, 231 (2d Cir. 2016) (quoting Amchen Prods., Inc. v. Windsor, 521 U.S. 591, 625, 626 n.20 (1997)). "Adequacy is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members." In re Payment Card, 827 F.3d at 231 (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006)).
To assure vigorous prosecution, courts consider whether the class representative has adequate incentive to pursue the class's claim, and whether some difference between the class representative and some class members might undermine that incentive. To avoid antagonistic interests, any fundamental conflict that goes to the very heart of the litigation, must be addressed with a structural assurance of fair and adequate representation for the diverse groups and individuals among the plaintiffs. In re Payment Card, 827 F.3d at 231 (2d Cir. 2016) (citations and internal quotation marks omitted). The Court should also consider whether "plaintiff's attorneys are qualified, experienced and able to conduct the litigation." Baffa v. Donaldson, Lufkin & Jenrette Sec.Corp., 222 F3.d 52, 60 (2d Cir. 2000) (citing In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1991)). Named Plaintiffs appear to have adequate incentive to pursue claims on behalf of the class,
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fulfilling the "vigorous prosecution" requirement. They seek fairer adjudication procedures, under which they believe they would qualify for certification upgrades. A change in procedures would benefit both Named Plaintiffs and proposed class members by at least affording them the belief that their applications will be held up to the correct standards. See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 171 (2d Cir. 2001), abrogated on other grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (explaining the "vigorous prosecution" requirement is met when plaintiffs "stand to benefit from any class-wide injunctive relief that may be ordered").
Defendant's arguments with respect to the adequate representation prong are mainly aimed at the second requirement of having no antagonistic fundamental interests. He claims that Plaintiffs, by seeking judicial intervention, delay proposed class members from receiving relief because they would otherwise get relief from immediately re-applying to the NDRB. Def. Mem. at 24. This claim has two fatal weaknesses. First, this assumes that the NDRB has already remedied its review process, a fact that the parties dispute. Pls. Reply at 9–10; Def. Mem. at 24. Second, even if it were true the NDRB process was already fixed, Defendant has not explained how Plaintiffs' and proposed class members' interests are fundamentally antagonistic to one another. Plaintiffs seek relief in the form of having the NDRB adhere to the proper procedures and standards—a fundamental interest of both Plaintiffs and class members. "In this regard, the interests of the class members are identical." Marisol A v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997) (discussing how interests of children in the custody of the child welfare system and of those outside the system were identical because plaintiffs sought "broad based relief" requiring improvement of all of the system's services). The Court fails to see how interests would be in conflict here. If the Plaintiffs ultimately prevail, then class members will benefit from a properly reformed NDRB review process. If the Defendant
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prevails, then class members will have confidence that their upgrade applications are being reviewed fully and fairly.
As for the qualifications of counsel, the Court is satisfied. Plaintiffs' attorneys, Yale Law School's Veterans Legal Services Clinic and Jenner & Block LLP, have had significant experience litigating class actions, some on behalf of veterans, and litigating individual veterans' claims against military review boards. See Docs. 12-2, 12-3. The Court finds that Plaintiffs have adequately fulfilled the fair and adequate representation requirement. Accordingly, Plaintiffs have met the prerequisites for class certification under Rule 23(a) of the Federal Rules of Civil Procedure. C. Rule 23(b)(2) Requirements
The Court has concluded that the four requirements of Rule 23(a) are satisfied, and so it now turns to the second step as detailed in Rule 23(b). Although Rule 23(b) allows for three different types of class actions, Plaintiffs seek class certification under only one of them: Rule 23(b)(2). Pls. Mem. at 15. Rule 23(b)(2) allows for class certification 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." Fed. R. Civ. P. 23(b)(2). The Court will thus only apply a Rule 23(b)(2) analysis.
"Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages." Wal-Mart Stores v. Dukes, 564 U.S. 338, 360–61 (2011). "The key to the (b)(2) class is 'the indivisible nature of the injunctive or declaratory
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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. at 360 (internal citation omitted).
Plaintiffs seek injunctive relief, asking the Court on behalf of the class to direct "measures sufficient to ensure that Defendant establishes constitutionally and statutorily compliant adjudication procedures," and "measures sufficient to ensure that Defendant meaningfully and consistently applies its own procedural standards in considering the effects of class members' PTSD when determining whether to upgrade their discharge statutes." Compl. at 41. Defendant contends that such injunctive relief is unneeded because the NDRB is already following the proper policy, and, in any case, classwide relief is inappropriate for the individualized nature of the NDRB review process. Def. Mem. at 25. These issues have been addressed supra; the parties dispute whether the NDRB is currently following policy as set forth by the Hagel Memo, and Plaintiffs are challenging the general procedures governing the NDRB's evaluation of upgrade applications, not individual determinations. The Court agrees with Plaintiffs that "[w]hile the outcome of any single NDRB proceeding may depend to some extent on individual facts, Defendant's [alleged] systemic failure to apply its own official standards is a general course of conduct uniting the proposed class." Pls. Mem. at 33. The injunctions sought would provide relief to each member of the class because, although they would not guarantee each member an upgrade to an "Honorable" disposition, they would ensure that their applications are being reviewed under the standard that both Plaintiffs and Defendant say applies to the NDRB. Accordingly, the Court finds that Plaintiffs have met the threshold for a class action under Rule 23(b)(2).
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IV. CONCLUSION For the foregoing reasons, Plaintiffs' motion for class certification, [Doc. 12], is GRANTED. In accordance with Rule 23(c)(1) of the Federal Rules of Civil Procedure, the Court certifies the following class: Veterans who served during the Iraq and Afghanistan Era—defined as the period between October 7, 2001, and the present—who:
(a) were discharged from the Navy, Navy Reserves, Marine Corps, or Marine Corps Reserve with less-than-Honorable statuses, including General and Other-than-Honorable discharges but excluding Bad Conduct or Dishonorable discharges; (b) have not received upgrades of their discharge statuses to Honorable from the NDRB; and (c) have diagnoses of PTSD, TBI, or other related mental health conditions, or records documenting one or more symptoms of PTSD, TBI, or other related mental health conditions at the time of discharge, attributable to their military service under the Hagel Memo standards of liberal or special consideration. The representatives of the class will be all Named Plaintiffs, and class counsel will be the Yale Law School's Veterans Legal Services Clinic and Jenner & Block LLP. This order may be altered or amended before final judgment. Fed. R. Civ. P. 23(c)(1)(C). The Court also reminds parties of its [14] previous order, directing Defendant to file a responsive pleading within 30 days of this decision and parties to exchange initial disclosures and
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file a proposed schedule for remaining deadlines within 45 days of this decision. A proposed interim schedule is due within 30 days if either party appeals this decision.
It is SO ORDERED. Dated: New Haven, Connecticut
November 15, 2018

/s/ Charles S. Haight, Jr.

.

CHARLES S. HAIGHT, JR.

Senior United States District Judge

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 Case 3:18-cv-00372-CSH Document 79 Filed 11/07/19 Page 1 of 41

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

TYSON MANKER, on behalf of himself and all others similarly situated, and NATIONAL VETERANS COUNCIL FOR LEGAL REDRESS, on behalf of itself, its members, and all others similarly situated,
Plaintiffs, v.
RICHARD V. SPENCER, Secretary of the Navy,
Defendant.

Civil Action No. 3:18-cv-372 (CSH)
NOVEMBER 7, 2019

RULINGS ON DEFENDANT’S MOTION TO DISMISS OR REMAND AND ON CROSS-MOTIONS FOR DISCOVERY
HAIGHT, Senior District Judge: This is a class action on behalf of United States Navy (the “Navy”) and United States Marine
Corps (the “Marine Corps” or “Marines”) veterans who were allegedly denied discharge upgrades by the Naval Discharge Review Board (“NDRB”) in a manner violative of the Administrative Procedure Act (“APA”) and the Fifth Amendment. This Ruling resolves several pending motions.
I. INTRODUCTION Class certification was sought by two named Plaintiffs: Tyson Manker and the National Veterans Council for Legal Redress (“NVCLR”). Manker is a Marine Corps veteran who was deployed in Iraq during 2003 in support of the military action denominated “Operation Iraqi Freedom.” Doc. 1 (Complaint), at 2. The record also refers to an individual called “John Doe,” a Marine Corps veteran and member of NVCLR who was also deployed in Iraq during 2003. Id. For
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reasons that will become apparent, the events relating to John Doe are relevant to the issues in the case, though the NVCLR—not its member Doe—is a named party Plaintiff, together with Manker.
Manker and Doe were both discharged from the Marines with less-than-Honorable discharges, and have subsequently attempted without success to obtain from the Navy upgrades to Honorable discharges. Doc. 1, at 3.
The class sought to be certified by the named Plaintiffs consisted of Navy, Navy Reserve, Marine Corps, and Marine Corps Reserve veterans of the Iraq and Afghanistan era who (a) were discharged from service with less-than-Honorable discharges; (b) have not received discharge upgrades to Honorable; and (c) have diagnoses of Post Traumatic Stress Disorder (“PTSD”), traumatic brain injury (“TBI”), PTSD-related conditions, or records documenting one or more symptoms of PTSD, TBI, or PTSD-related conditions at the time of discharge, those conditions or symptoms being attributable to their military service.
The Defendant is the Secretary of the Navy, the Executive Branch individual responsible for the NDRB. The gravamen of Plaintiffs’ complaint is that the NDRB fails to follow the directive of a memorandum issued by then-Secretary of Defense Charles Hagel mandating that “liberal consideration” be given to diagnoses of PTSD and similar mental health conditions; and, to records indicating symptoms of those conditions. Doc. 1, at 3. Plaintiffs seek a class-wide injunction whose purpose is to correct the Navy’s conduct in that regard. Doc. 1, at 41. The only relief sought by Plaintiffs is equitable in nature.
Plaintiffs moved for certification of the designated class pursuant to Federal Rule of Civil Procedure 23(b)(2), which allows a class action in a case where “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Doc. 12. The Court
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certified the class in a previous opinion, familiarity with which is assumed. See Manker v. Spencer, 329 F.R.D. 110 (D. Conn. 2018). The class, as certified, includes veterans who served between October 7, 2001, and the present, were discharged from the Navy, Navy Reserves, Marine Corps, or Marine Corps Reserve with less-than-Honorable statuses, have not received upgrades of their discharge statuses to Honorable from the NDRB; and,
have diagnoses of PTSD, TBI, or other related mental health conditions, or records documenting one or more symptoms of PTSD, TBI, or other related mental health conditions at the time of discharge, attributable to their military service under the Hagel Memo standards of liberal or special consideration. Id. at 123. The case is now before the Court on Defendant’s motion to dismiss the Complaint, or in the alternative, to remand the case to the Navy for further administrative action. Doc. 67. The Plaintiff class opposes that motion in its entirety. Doc. 68. In addition, the parties have filed cross-motions to govern the nature, scope, and effect of pre-trial discovery. Docs. 61, 62. The questions concerning discovery, which are substantial and vigorously litigated, arise only if the Defendant’s motion to dismiss fails. This Ruling considers those motions in that order. II. DEFENDANT’S MOTION TO DISMISS OR REMAND Defendant moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction; and under Rule 12(b)(6) for failure to state a claim. Doc. 671, at 14–29. I consider those grounds for dismissal in Parts II.A and II.B. Defendant’s alternative motion for a remand is considered in Part II.C.
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A. Lack of Subject Matter Jurisdiction 1. Preliminary Discussion Rule 12 allows a defendant to move to dismiss a complaint for “lack of subject-matter
jurisdiction.” Fed. R. Civ. P. 12(b)(1). The Supreme Court equates a district court’s subject matter jurisdiction with the court’s authority to adjudicate the case. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 425 (2007) (noting that “a court need not resolve whether it has authority to adjudicate the cause (subject-matter jurisdiction)” before dismissing the action for forum non conveniens). A federal district court’s authority to adjudicate is not self-executing; it must be derived from the Constitution or a statute. “Determining the existence of subject matter jurisdiction is a threshold inquiry and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff’d, 561 U.S. 247, 130 (2010) (citation and internal quotation marks omitted). “Only Congress may determine a lower federal court’s subject-matter jurisdiction.” Kontrick v. Ryan, 540 U.S. 443, 452 (2004) (citing U.S. Const., Art. III, § 1). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). On occasion, such proof requires discovery beyond the pleadings. See, e.g., State Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007) (“[W]e have held that, in adjudicating a motion to dismiss for lack of subject-matter jurisdiction, a district court may resolve disputed factual issues by reference to evidence outside the pleadings.”). In deciding a motion to dismiss under Rule 12(b)(1), a district court may resolve disputed jurisdictional facts on the basis of evidence outside the pleadings. See Zappia Middle E. Construction Company v. Emirate
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of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). In the case at bar, Defendant’s Brief in support of his Rule 12(b)(1) motion begins its
discussion with the following assertion: “As a threshold matter, the Court lacks jurisdiction to review Plaintiffs’ claims for five reasons.” Doc. 67-1, at 3. The Brief lists those reasons as follows:
• Plaintiffs’ challenges to their discharges and characterizations of service are not reviewable, and thus nonjusticiable, under the intramilitary immunity doctrine.
• To the extent Plaintiffs claim the NDRB failed to follow Department of Defense and Navy regulations, they must first exhaust their administrative remedies.
• Plaintiffs may seek judicial review under the APA only for an adverse decision by the Navy’s civilian review board, which Plaintiffs have not sought.
• Plaintiffs’ claims are moot, because a subsequent Department of Defense directive made the Hagel memo explicitly applicable to discharge review boards.
• Plaintiffs “lack standing to launch a broad programmatic attack against the NDRB under the APA.”
Id. at 3–4. A striking aspect of these bases for a lack of subject matter jurisdiction is that, explicitly or
by implication, they all seem to relate exclusively to the individual circumstances of Tyson Manker and John Doe. Manker and Doe play important roles in this opera, but there are other soloists, a chorus, and a full orchestra—a fair analogy, given that the Court has certified a class of Navy and Marine Corps veterans whose claims satisfy the commonalty and typicality requirements of Rule 23.
The Complaint contains five claims. Claims I, II, and III are collected under the caption “Legal Claims of the Class.” Doc. 1. Each claim is captioned “Violations of the Administrative
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Procedure Act” and cites one or another of the several sub-sections found in section 10(e) of the Act, 5 U.S.C. § 706.
Specifically, class members allege in Claim I that “Defendant’s denials of class members’ discharge upgrade applications are final agency actions.” Doc. 1 ¶ 201. The class members assert in Claim I that those denials constitute “arbitrary and capricious agency action,” in violation of 5 U.S.C. § 706(2)(A). Id. ¶ 206. That section provides that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
Class members allege in Claim II that constitutional Fifth Amendment due process protections “require that federal administrative agencies follow their own regulations and subregulatory guidance in conducting their adjudications and that they conduct adjudications in a fair and orderly manner.” Doc. 1 ¶ 211. The class members claim that “[b]y not meaningfully applying the Hagel Memo to class members’ applications, Defendant has failed to follow its own rules, in violation of its constitutional obligations and the [APA], 5 U.S.C. § 706(2)(B).” Doc. 1 ¶ 212. That section of the APA provides that a court shall hold unlawful agency action found to be “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B).
Class members allege in Claim III that Congress’ intent “in establishing review boards such as the NDRB was to protect veterans with Other-than-Honorable discharges from being unjustly burdened” with life-time disadvantages attendant upon such discharges. Doc. 1 ¶ 224. The class members assert in Claim III that “Sailors and Marines are being denied their statutorily-mandated access to the discharge upgrade procedures set forth by Congress and implemented by the Department of Defense,” with the result that “Defendant has failed to carry out Congress’ intent in
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establishing the Discharge Review Boards and setting forth their governing standards.” Id. ¶¶ 226–27. According to the class members, Defendant has “thereby exceed[ed] its authority, and has fallen short of vindicating the statutory right Congress created for veterans, in violation of the [APA], 5 U.S.C. § 706(2)(c).” Id. ¶ 227. Section 706(2)(c) provides that a court shall hold unlawful agency action found to be “in excess of statutory jurisdiction, authority, or short of statutory right.” 5 U.S.C. § 706(2)(c).
Claim IV is captioned as “Legal Claims of Tyson Manker.” Id. ¶¶ 228–34. Claim V is captioned “Legal Claims of NVCLR on Behalf of John Doe.” Id. ¶¶ 235–41. The substantive allegations are the same. Each claim is sub-captioned “Violations of the Administrative Procedure Act.” Those violations are alleged to consist of Defendant’s failure to apply the Hagel Memo to that individual’s application for a discharge upgrade; failure to consider important evidence concerning the individual’s mitigation of misconduct by PTSD and TBI affliction; Defendant’s failure to follow its own rules requiring responding to all relevant facts and issues; and Defendant’s wrongful application of the presumption of regularity in government affairs. Id. ¶¶ 228–41.
I have set forth these several claims pleaded in the Complaint at some length because in adjudicating the Defendant’s jurisdictional challenge, the Court’s consideration must include the case’s class status and the circumstances of the class members. That is to say, in order for Defendant to succeed on his Rule 12(b)(1) motion to dismiss the Complaint in its entirety, he must demonstrate that as a matter of law this Court lacks subject matter jurisdiction over each and every claim plausibly pleaded in the Complaint on behalf of Manker, Doe, or any member of the certified Plaintiff class.
That group of veterans is of substantial size. While the number of class members cannot be
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stated on the present record, the Complaint’s allegations demonstrated that the numerosity requirement imposed by Rule 23 for class certification was met. According to the Complaint:
Over 100,000 Sailors and Marines have received less-than-Honorable discharges since 2002. Thousands of these former service members suffered combat-related PTSD or PTSD-related conditions, TBI, or MST but received a less-than-Honorable discharge for misconduct attributable to these conditions. Nearly all who applied for a discharge upgrade to the NDRB were denied. Doc. 1 ¶¶ 193–94. Given these allegations, which are not contradicted by anything in the present record, it is likely that the class is comprised of at least hundreds, more likely several thousand, Navy and Marine Corps veterans, arrayed within the ranks of the class certified by the Court. That certification adopts the Complaint’s allegations and, as noted supra, creates a class of Navy and Marine Corps veterans who served from 2001 to the present, received less-than-Honorable discharges, were denied upgrades by the NDRB, and had diagnoses of PTSD, TBI, or other related mental health conditions attributable to their military service. See Manker, 329 F.R.D. at 123. If the Complaint survives Defendant’s motion to dismiss and discovery takes place, the number of class members may appear with more precision, and the circumstances of additional individual veterans may be elucidated. But that possibility does not affect the present motion to dismiss the entire Complaint for lack of subject matter jurisdiction. To dismiss the action on that ground, the Second Circuit teaches in Morrison that Defendant must demonstrate that this Court “lacks the statutory or constitutional power to adjudicate it,” thereby rendering the Court powerless to adjudicate any claims of Manker, Doe, or all class members. Morrison, 547 F.3d at 170. In the case at bar, Defendant Secretary of the Navy cannot make that showing. The reasons he cites for a lack of subject matter jurisdiction do not, separately or in the aggregate, lead to that
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conclusion. They fail in that regard because this Court’s statutory power to adjudicate this case is explicitly conferred by the APA.
2. Justiciability and the Intramilitary Immunity Doctrine Defendant’s first-cited basis for lack of jurisdiction is that “under the intramilitary immunity doctrine, Plaintiffs’ challenges to military personnel decisions are generally nonjusticiable.” Doc. 67-1, at 15. Defendant seeks to apply that judge-made doctrine to the present Plaintiffs’ APA action by arguing: “To the extent that Plaintiffs’ claims require the Court to make an individualized inquiry into a discrete personnel action, any such claim is nonjusticiable. The justiciability of military personnel decisions is limited by the fundamental and highly salutary principle that Judges are not given the task of running the Army.” Id. (citations and internal quotation marks omitted). One may acknowledge the existence and beneficence of that principle, embodied in the intramilitary immunity doctrine. But the doctrine has nothing to do with the case at bar, which is not “an individualized inquiry into a discrete personnel action” which turns upon “military personnel decisions.” Id. Rather, this is an action where the plaintiff class invokes the APA to challenge the legality and validity of the process by which the NDRB has denied discharge upgrades to allegedly afflicted veterans. The APA confers jurisdiction on this Court to entertain that action. Even Defendant quotes with apparent approval Pettiford v. Secretary of the Navy, 774 F. Supp. 2d 173, 182 (D.D.C. 2011), stating that “a court’s role in reviewing the decision of a military corrections board is to determine whether the decision making process was deficient, not whether [the] decision was correct.” Id. at 17 (internal quotation marks omitted). That distinction is illustrated by Kreis v. Secretary of Air Force, 866 F.2d 1508 (D.C. Cir. 1989), relied upon by Defendant, where the plaintiff, an air force officer who was denied promotion, sued the Secretary
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under the APA. In that case, the plaintiff asserted “a claim to a military promotion and distinct claims for the correction of military records.” Kreis, 866 F.2d at 1511. The D.C. Circuit, reversing in part the district court’s dismissal of the action, held that while plaintiff’s “request for retroactive promotion falls squarely within the realm of nonjusticiable military personnel decisions,” a viable claim lay under the APA to challenge, “in light of familiar principles of administrative law, the reasonableness of the Secretary’s decision not to take certain corrective action with respect to appellant’s record.” Id.
The gravamen of the present Plaintiffs’ claim against the Navy Secretary is that the process by which the Navy decided not to upgrade class members’ discharges was deficient. Kreis holds that to be a justiciable claim under the APA. To the same effect, judges in this District routinely hold that the APA grants district courts jurisdiction to consider whether military review boards’ classifications of individuals were arbitrary or capricious under section 706(2)(A). See, e.g., Cowles v. McHugh, No. 13-cv-1741 (JCH), 2014 WL 12767682, at *5–6 (D. Conn. Sept. 30, 2014). In Cowles, the plaintiff challenged the Army Board for Correction of Military Records’ refusal “to correct [the plaintiff’s] records to reflect that he was separated for PTSD rather than for [Adjustment Disorder].” Id. at *1. In denying a motion to dismiss, Judge Hall said that, “[t]his relief is all within the traditional scope of ‘equitable’ relief, is not merely ‘incidental’ to the money damage claim, and would thus normally be the appropriate subject of a suit under the APA.” Id. at *6 (citation omitted).
On the present record, there is no substance to Defendant’s contention that the claims asserted against the Secretary of the Navy in this class action are nonjusticiable.
3. Failure to Exhaust Administrative Remedies Defendant’s second jurisdictional challenge is that to the extent Plaintiffs (Manker, Doe, and
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the class members) claim the NDRB failed to follow agency regulations in denying them discharge upgrades, Plaintiffs must first exhaust their administrative remedies. Doc. 67-1, at 17–21. That contention is precluded by the Supreme Court’s decision in Darby v. Cisneros, 509 U.S. 137 (1993), where a real estate developer filed an APA suit against the Secretary of the United States Department of Housing and Urban Development (“HUD”), alleging that sanctions imposed by HUD violated the agency’s regulations. A HUD administrative law judge imposed those sanctions, and agency regulations gave the developer the option of asking the Secretary to review that adverse decision. See Darby, 509 U.S. at 141. The developer chose not to exercise the option, however, and simply filed his APA action. See id. at 142. The Secretary and HUD “moved to dismiss the complaint on the ground that petitioners, by forgoing the option to seek review by the Secretary, had failed to exhaust administrative remedies.” Id.
Darby rejects that contention. The decision focuses upon section 10(c) of the APA, which enables judicial scrutiny of “final agency action for which there is no other adequate remedy in a court,” and further provides that “[e]xcept as otherwise expressly required by statute,” agency action “is final for the purposes of this section whether or not” there is an application “for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.” 5 U.S.C. § 704. The Darby opinion notes that “appropriate deference to Congress’ power to prescribe the basic procedural scheme under which a claim may be heard in a federal court requires fashioning of exhaustion principles in a manner consistent with congressional intent and any applicable statutory scheme.” 509 U.S. at 153 (quoting McCarthy v. Madigan, 503 U.S. 140, 144 (1992)). The Court then reasoned in Darby:
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Appropriate deference in this case requires the recognition that, with respect to actions brought under the APA, Congress effectively codified the doctrine of exhaustion of administrative remedies in § 10(c). Of course, the exhaustion doctrine continues to apply as a matter of judicial discretion in cases not governed by the APA. But where the APA applies, an appeal to “superior agency authority” is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review. Courts are not free to impose an exhaustion requirement as a rule of judicial administration where the action has already become “final” under § 10(c).
509 U.S. at 153–54. “In other words, under Darby”—as District Judge Bianco (as he then was) aptly
distilled of the Supreme Court’s decision—a plaintiff need not seek further review of a final action
within the agency before filing suit, unless a specific statute or rule expressly requires otherwise.”
Brezler v. Mills, 220 F. Supp. 3d 303, 322 (E.D.N.Y. 2016).
In the case at bar, Defendant’s Reply Brief argues that “Plaintiffs did not file a complaint
with the JSRA even though the NDRB explicitly informed them of their right to do so. . . .
Therefore, Plaintiffs failed to exhaust their administrative remedies by not filing a complaint with
the JSRA.” Doc. 69, at 6 (emphasis added). The JSRA remedy is created by a Department of
Defense instruction that an individual’s disagreeing with agency action “may submit a complaint
. . . to the Joint Service Review Activity.” Id. Defendant also argues that “Second Circuit precedent
requires them to exhaust their administrative remedies by presenting such claims to the BCNR.” Id.
These exhaustion contentions are precluded by Darby, as correctly interpreted by Brezler.
No statute or rule expressly required Plaintiffs to invoke JSRA or BCNR remedies before filing this
APA action. Defendant does not contend otherwise.
Defendant’s theory is that exhaustion is required here because Plaintiffs challenge military
personnel decisions. Id. Defendant places primary reliance upon Guitard v. United States Secretary
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of the Navy, 967 F.2d 737 (2d Cir. 1992), where the Second Circuit reversed a preliminary injunction barring the Navy from discharging a member of the Naval Reserve on the ground that the plaintiff had failed to exhaust his administrative remedies. The Second Circuit reasoned that “[u]nder the exhaustion rule, a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself,” emphasizing that “[t]he imperatives concerning military discipline require the strict application of the exhaustion doctrine in discharge cases.” Id. at 740 (emphasis added). The Guitard plaintiff does not appear to have filed his action under the APA. Id. Defendant also relies upon Jones v. New York State Division of Military and Naval Affairs, 166 F.3d 45, 54–55 (2d Cir. 1999)—a non-APA, 42 U.S.C. § 1983 case—where the Second Circuit cited Guitard. In that case, the Court of Appeals held that the plaintiff’s exhaustion of administrative remedies was a prerequisite to his § 1983 action challenging his removal from service based on the Army National Guard’s alleged failure to comply with its own regulations. See id. at 55.
Defendant’s reliance upon Guitard and Jones is misplaced. Unlike those cases, Plaintiffs at bar are suing under the APA; and, the Second Circuit’s decisions in Guitard and Jones antedate the Supreme Court’s decision in Darby limiting the exhaustion of remedy doctrine in APA cases. In Brezler, an APA-based action where plaintiff challenged a military disciplinary proceeding against him and separation recommendation, “the government urge[d] the Court to disregard Darby and apply Jones . . . because the military enjoys a special status reflected in the existence of two systems of justice . . . one for civilians and one for military personnel.” 220 F. Supp. 3d at 324 (citation and internal quotation marks omitted). Judge Bianco rejected the Navy’s invitation:
This Court declines to do so. Although the law accords the sui generis nature of military life unique deference, the plain language of
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the statute and Darby’s dictate, which governs “where the APA applies,” 509 U.S. at 154, are dispositive. The Court will not require plaintiff to exhaust all avenues of administrative review of a final agency decision where Congress and the military have not imposed such a requirement. . . . Though the government argues that Jones stands for the proposition that exhaustion is required for any claim based on the military’s failure to follow regulations even where the statute under which relief is sought does not require it, the better view is that Jones merely reflects that Darby, by its own terms, is limited to APA cases. See Darby, 509 U.S. at 153–54 (“Of course, the exhaustion doctrine [recognized by the Second Circuit] continues to apply as a matter of judicial discretion in cases not governed by the APA.”). . . . Jones and Guitard are of no moment here because Darby and the APA preclude imposition of an exhaustion requirement not found in statute or rule.
Id. at 324 (some citations and internal quotation marks omitted).
I agree with Judge Bianco’s analysis in Brezler.1 I hold in this case that the Supreme Court’s
decision in Darby and the plain language of the APA preclude the Defendant Secretary of the Navy
from imposing an exhaustion of administrative remedy requirement upon Manker, Doe, or members
of the Plaintiff class.
4. Failure to Seek Review by Civilian Review Board
Defendant specifies as a separate basis for lack of subject matter jurisdiction the fact that
Plaintiffs have not sought review of a civilian review board decision. Doc. 67-1, at 21. Defendant’s
Brief demonstrates that Defendant is referring to the Board for the Correction of Naval Records
(“BCNR”), which the Navy established as “the highest level of administrative review within the
Department of the Navy,” generally composed of a “three-member panel of rotating civilians,” with
1 Judge Bianco filed his district court opinion in Brezler on December 6, 2016, a time when his opinions were not binding upon me. I agree with Brezler because it is persuasive. Judge Bianco was elevated to the Second Circuit on May 17, 2019.
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the power to “review an NDRB decision and provide further relief.” Id. at 6. Defendant’s reference to a BCNR review, while stated separately, is in effect a further
invocation of the non-justiciable and exhaustion of remedies doctrines that run through Defendant’s briefs like leitmotivs. That persistence emerges clearly in Defendant’s Reply Brief, where Defendant argues that “[f]ollowing the rationale in Guitard, Plaintiffs should have first addressed any of the NDRB’s alleged constitutional infirmities with the BCNR before invoking this Court’s jurisdiction.” Doc. 69, at 6. “Guitard” is a reference to Guitard, 967 F.2d at 737, which Judge Bianco noted in Brezler was “of no moment” since the later-decided Darby and the APA “preclude imposition of an exhaustion requirement not found in statute or rule.” 220 F. Supp. 3d at 324.
Defendant professes to find, in Navy and Department of Defense regulations, provisions requiring the exhaustion of administrative remedies before judicial review of agency action may be sought. Thus, Defendant’s Reply Brief states that “Plaintiffs failed to exhaust their administrative remedies by not seeking review by the BCNR,” and “the applicable regulations dictate that the Plaintiffs should have sought relief from the JSRA and the BCNR, not just the prudential considerations already detailed in the Defendant’s [Main] Brief.” Doc. 69, at 7. The regulations in question do nothing of the kind. The Navy regulation, quoted in Defendant’s Reply Brief, advises an applicant for agency action that if he or she has “otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records . . . for further review.” Id. (alterations omitted). That sort of permissive internal agency review falls well short of the “expressly required” judicial restrictions specified by the APA, in which, as the Supreme Court noted in Darby, “Congress effectively codified the doctrine of exhaustion of administrative remedies in § 10(c).” 509 U.S. at 153.
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In the instant case, the Defendant Secretary is contending for what we may call a “military exception” to the decision announced in Darby. That exception found favor with the district court in Saad v. Dalton, 846 F. Supp. 889 (S.D. Cal. 1994), which dismissed a Naval Reserve officer’s action seeking to enjoin her involuntary separation from the military service. That plaintiff could have petitioned the BCNR for relief, but did not do so before filing suit, a failure to act that led to the court dismissing the action. Id. at 891. The district court said that “[u]ntil the plaintiff proceeds before a Board established by Congress to resolve military personnel disputes, this court will not address (1) whether the court has the authority to review the claims or (2) if so, the merits of those claims.” Id. The plaintiff in Saad cited Darby for the proposition that she “need not exhaust her available remedies” before filing suit, but the court disregarded Darby as “clearly distinguishable.” Id. The court reasoned:
The Darby case involved the interpretation of the Administrative Procedure Act in the context of a Department of Housing and Urban Development administrative ruling. Review of military personnel actions, however, is a unique context with specialized rules limiting judicial review. Chappell, 462 U.S. at 301–04.2 Accordingly, the court dismisses the plaintiff’s complaint for failure to exhaust available administrative remedies. Id. Saad holds that military personnel cases fall outside of, or constitute a military exception to, the narrow boundaries of mandated remedy exhaustion the Court specified in Darby. I am asked to reach the same conclusion in the case at bar. I decline to do so because the distinct weight of authority is squarely to the contrary. Judge Bianco dealt with that issue in Brezler, a military personnel case where “the government urge[d] the
2 Chappell v. Wallace, 462 U.S. 296 (1983). -16-

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Court to disregard Darby and apply Jones3 to [an] APA action because the military enjoys a ‘special status’ reflected in the existence of ‘two systems of justice . . . one for civilians and one for military personnel.” 220 F. Supp. 3d at 324 (quoting Chappell, 462 U.S. at 303–04). Judge Bianco declined that invitation, and refused to “require plaintiff to exhaust all avenues of administrative review of a final agency action where Congress and the military have not imposed such a requirement.” Id. He then reasoned:
This holding is in harmony with the weight of post-Darby case law finding that there is no “military exception” to Darby. See, e.g., . . . Crane v. Sec’y of Army, 92 F. Supp. 2d 155, 161 (W.D.N.Y. 2000) (collecting cases and observing that, “[a]lmost without exception, federal courts throughout this country have also declined to create a military exception to the Court’s decision in Darby”). But see Saad v. Dalton, 846 F. Supp. 889, 891 (S.D. Cal. 1994). Id. While Judge Bianco acknowledged in Brezler that the Saad opinion in the Southern District of California went the other way (preceding his citation to that case with the telltale phrase, “But see”), he agreed with those federal courts which, following Darby, have “almost without exception” refused to fashion a “military exception” to Darby, if the effect of the exception would be to impose upon APA plaintiffs an exhaustion requirement which neither the statute nor the underlying agency regulations contained. Id. The conclusion I reach in this case is in accord with that greater weight of authority. In short, the plain language of section 10(c) of the APA, cast in the broadest possible terms, means just what it says. The case at bar is brought pursuant to the APA. The statute’s wording in section 10(c) and the Supreme Court’s decision in Darby create and define the boundaries of the
3 Jones v. New York State Div. of Military & Naval Affairs, 166 F.3d 45 (2d Cir. 1999). -17-

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