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Case Name Manker v. Spencer PB-CT-0011
Docket / Court 3:18-cv-00372-CSH ( D. Conn. )
State/Territory Connecticut
Case Type(s) Public Benefits / Government Services
Attorney Organization Jerome N. Frank Legal Services Organization (Yale)
Case Summary
Thousands of United States Sailors and Marines are deployed to combat zones across the globe, and return home suffering from the invisible wounds of war, including Post-Traumatic Stress Disorder (PTSD) or traumatic brain injury (TBI). Sometimes these mental health issues indirectly lead to less- ... read more >
Thousands of United States Sailors and Marines are deployed to combat zones across the globe, and return home suffering from the invisible wounds of war, including Post-Traumatic Stress Disorder (PTSD) or traumatic brain injury (TBI). Sometimes these mental health issues indirectly lead to less-than-Honorable discharges, resulting in permanent stigma and preventing veterans from accessing essential benefits like the GI bill and much-needed mental health care. The Naval Discharge Review Board adjudicates discharge upgrade applications from veterans seeking an appeal of their less-than-Honorable discharge. In 2014, then-Secretary of Defense Chuck Hagel directed these boards to consider PTSD and related conditions as “potential mitigating factors in the misconduct that caused the under-other-than-honorable-conditions characterization of service.” This Hagel Memo was codified by Congress in 2016, statutorily requiring Discharge Review Boards to grant “liberal consideration” to the discharge upgrade applications of veterans with symptoms related to PTSD or TBI. 10 U.S.C. §1553(d)(3)(A)(ii).

On March 2, 2018, Tyson Manker and the National Veterans Council for Legal Redress (NVCLR), represented by the Veterans Legal Services Clinic at Yale Law School and private counsel, filed a class-action complaint in the U.S. District Court for the District of Connecticut on behalf of a class of Navy and Marine Corps veterans. The complaint was filed against the Secretary of the Navy. According to the plaintiffs, the Naval Discharge Review Board rejected almost 90% of discharge upgrade applications based on credible claims of service-connected PTSD, without clearly explaining what a veteran must show to prevail, and without applying the proper legal standards. The plaintiffs alleged that the Board violated the Administrative Procedure Act by issuing arbitrary and capricious decisions that were inconsistent with relevant statutory law, and deprived applicants of their Fifth Amendment rights to due process of law. They argued that the Board’s actions, in violation of binding Department of Defense guidance, evidenced an unconstitutional secret policy against granting discharge upgrades: the Board had set an unachievable and sometimes unknown evidentiary burden for applicants alleging PTSD as a basis for a discharge upgrade.

The plaintiffs requested that the Court set aside and hold unlawful the Board’s improper denials of veterans’ discharge upgrade applications, order the applications' approval, and issue injunctive relief to ensure that all Navy and Marine Corps veterans had their discharge upgrade applications considered according to the Constitution and as intended by Congress. The case was assigned to Judge Charles S. Haight, Jr.

On November 15 2018, the court granted a motion to certify a class of veterans who served during the Iraq and Afghanistan Era (between October 7, 2001 and the present) and who:
  1. 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;
  2. have not received upgrades of their discharge statuses to Honorable from the NDRB; and
  3. 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.
On December 27, 2018, the Court ordered a scheduling conference to resolve the issue of whether the federal and local rules of civil procedure exempted this case from the usual discovery procedures, the scope of discovery, and discovery deadlines.

On July 26, 2019, the Navy sought to dismiss the case, claiming that the court lacked jurisdiction and that the plaintiffs failed to state a claim for which relief could be granted. The court denied the motion on November 7, 2019, holding that in order for the motion to dismiss to prevail, the defendant “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." The court found that the Navy failed to so demonstrate, also stating that whether “the [Board] 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.” 2019 WL 5846828.

Following this order, the parties engaged in settlement talks. On September 16, 2021, the parties filed a settlement agreement with the court. Under the terms of the settlement, the U.S. Navy agreed to reconsider decisions that resulted in less-than-honorable discharges for Iraq and Afghanistan era veterans.

On October 12, 2021, the court preliminarily approved the parties' settlement agreement. The agreement stipulated that the NDRB would automatically reconsider decisions for Group A Applicants: veterans who were special cases (who had less than honorable discharge statuses), had decisions issued on or after March 2, 2012 until the effective date of the settlement, and whose "grant state" showed they did not receive full upgrade to Honorable. The NDRB also agreed to provide information to plaintiffs to notify Group B Applicants (same criteria as Group A, but whose decisions were issued between October 7, 2001 and March 1, 2012) that they may apply for reconsideration. Applicants whose decisions were issued more than 15 years prior were required to apply to Board Correction of Naval Records because of the 15-year statute of limitations for NDRB decision amendments. The settlement also imposed additional obligations on the defendant, including the publication of this information on their website, changes to NDRB procedures, and trainings for NDRB members specifically tailored to special cases. Attorney's fees were also awarded to class counsel.

As of November 16, 2021, the settlement remains subject to final approval after a Fairness Hearing scheduled for December 16, 2021.

Esther Vinarov - 02/04/2019
Bogyung Lim - 06/16/2020
Jordan Schuler - 11/06/2021


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Content of Injunction
Implement complaint/dispute resolution process
Training
Defendant-type
Jurisdiction-wide
Disability
Mental impairment
Discrimination-basis
Disability (inc. reasonable accommodations)
General
Classification / placement
Discharge & termination plans
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Plaintiff Type
Non-profit NON-religious organization
Private Plaintiff
Type of Facility
Government-run
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Defendant(s) Secretary of the Navy
Plaintiff Description Navy and Marine Corps veterans who unsuccessfully applied to the Navy Discharge Review Board for a discharge upgrade based on service-related PTSD.
Indexed Lawyer Organizations Jerome N. Frank Legal Services Organization (Yale)
Class action status sought Yes
Class action status outcome Granted
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Filed 03/02/2018
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Manker v. Spencer
Yale Law School
Date: Mar. 2, 2018
By: Yale Law School
[ Detail ] [ External Link ]

  Manker v. Del Toro
JND Legal Administration
Date: Oct. 7, 2001
By: JND Legal Administration
[ Detail ] [ External Link ]

Court Docket(s)
D. Conn.
10/13/2021
3:18-cv-00372-CSH
PB-CT-0011-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D. Conn.
11/15/2018
Ruling on Plaintiffs' Motion for Class Certification [ECF# 33] (329 F.R.D. 110)
PB-CT-0011-0001.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Conn.
11/07/2019
Rulings on Defendant's Motion to Dismiss or Remand and on Cross-Motions for Discovery [ECF# 79] (2019 WL 5846828)
PB-CT-0011-0002.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Conn.
09/16/2021
Stipulation and Agreement of Settlement [ECF# 211-2]
PB-CT-0011-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Haight, Charles Sherman Jr. (S.D.N.Y.) show/hide docs
PB-CT-0011-0001 | PB-CT-0011-0002 | PB-CT-0011-9000
Plaintiff's Lawyers Bullock, Thomas J (New York) show/hide docs
PB-CT-0011-0003
Burbank, Renee (Connecticut) show/hide docs
PB-CT-0011-9000
Creelan, Jeremy (New York) show/hide docs
PB-CT-0011-0003 | PB-CT-0011-9000
Ershow, Jeremy H. (New York) show/hide docs
PB-CT-0011-0003 | PB-CT-0011-9000
Kohlmann, Susan J. (New York) show/hide docs
PB-CT-0011-0003 | PB-CT-0011-9000
Martinez, Jessica A. (New York) show/hide docs
PB-CT-0011-9000
Taykhman, Nicole (New York) show/hide docs
PB-CT-0011-9000
Wenzloff, Aaron Paul (Illinois) show/hide docs
PB-CT-0011-9000
Wishnie, Michael J. (Connecticut) show/hide docs
PB-CT-0011-0003 | PB-CT-0011-9000
Defendant's Lawyers Elicker, Natalie Nicole (Connecticut) show/hide docs
PB-CT-0011-0003 | PB-CT-0011-9000
Hogue, Robert D (District of Columbia) show/hide docs
PB-CT-0011-0003
Nelson, David Christopher (Connecticut) show/hide docs
PB-CT-0011-0003 | PB-CT-0011-9000

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