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Case Name Kennedy v. Fanning PB-CT-0012
Docket / Court 3:16-cv-02010-WWE ( D. Conn. )
State/Territory Connecticut
Case Type(s) Public Benefits / Government Services
Attorney Organization Jerome N. Frank Legal Services Organization (Yale)
Case Summary
On December 9, 2016, an army veteran filed this lawsuit in the U.S. District Court for the District of Columbia against the Secretary of the Army for violating the Administrative Procedure Act (5 U.S.C. § 706) and the Due Process Clause of the Fifth Amendment. This veteran was deployed to Iraq and ... read more >
On December 9, 2016, an army veteran filed this lawsuit in the U.S. District Court for the District of Columbia against the Secretary of the Army for violating the Administrative Procedure Act (5 U.S.C. § 706) and the Due Process Clause of the Fifth Amendment. This veteran was deployed to Iraq and Afghanistan after 9/11 and suffered from service-related mental health issues. He was subsequently dismissed with less-than-Honorable discharges. Represented by the Veterans Legal Services Clinic and Jerome N. Frank Legal Services Organization at Yale Law School and the Connecticut Veterans Legal Center, the veteran sought equitable and injunctive relief and attorneys' fees. He claimed that the Army failed to treat and accommodate his mental health conditions, which were a direct result from his service. As a result, the veteran alleged, he was charged with a variety of infractions that led to his less-than-Honorable discharge. The veteran also alleged that his less-than-Honorable discharge status impeded his access to services and benefits that help veterans heal their wounds and thrive in civilian society. The case was assigned to Judge Warren W. Eginton.

About five months later, the veteran amended his complaint to a class-action complaint and added a class representative as a plaintiff. The class representative brought the same claims as the original plaintiff and also alleged that the military violated the Little Tucker Act by recouping her enlistment bonus without cause. Claims for military pay and allowances under $10,000 are actionable under the Little Tucker Act.

Upon discharge, military personnel receive a certificate that characterizes their service, which impacts their eligibility for various benefits and support services administered by the U.S. Department of Veterans Affairs ("VA"). The Army Discharge Review Board ("ADRB") was created by Congress specifically to address unjust and improper discharges. On September 3, 2014, then-Secretary of Defense Chuck Hagel directed all records-correction boards to give "special consideration" to PTSD diagnoses and to consider PTSD and related conditions as "potential mitigating factors" for the misconduct that caused a discharge with "other than honorable conditions." The veterans alleged that the ADRB wrongfully denied their applications for discharge upgrades.

The veterans asked the court to ensure that the Army employs consistent standards in considering the effects of class members' PTSD when determining whether to upgrade their discharge statuses. The veterans also sought individual status upgrades to "Honorable" to accurately reflect their service and to recoup any enlistment bonuses redacted in light of their less-than-Honorable discharges.

The Army filed a motion to dismiss the case in March 2017. This motion was denied one month later without prejudice. Three months later, in June 2017, the veterans moved to certify their class. The Army opposed the motion, and it was eventually denied without prejudice. That same month, the Army filed another motion to dismiss or, alternatively, for voluntary remand. The court denied the motion to dismiss but granted voluntary remand in September. Judge Eginton reasoned that a voluntary remand would be the most efficient way to correct the representative veterans' discharge statuses and to complete the record for the veterans' class-action suit.

In October, the second representative plaintiff's discharge status was upgraded to honorable, and the Army was barred from recouping her enlistment bonus. The original plaintiff's discharge status was not reconsidered until March 2018 due to administrative issues and errors.

On June 4, 2018, the Army filed another motion to dismiss and the veterans filed another motion to certify the class. The Judge granted the veterans' motion in December, 2018, rejecting the Army's arguments regarding redressability, mootness, and exhaustion of administrative remedies, and certifying the class pursuant to FRCP 23. The class was certified as:
All Army, Army Reserve, and Army National Guard veterans of the Iraq and Afghanistan era—the period between October 7, 2001 to present—who:
  1. were discharged with a less-than-Honorable service characterization (this includes General and Other-than-Honorable discharges from the Army, Army Reserve, and Army National guard, but not Bad Conduct or Dishonorable discharges);
  2. have not received discharge upgrades to Honorable; and
  3. have diagnoses of PTSD or PTSD-related conditions or record documenting one or more symptoms of PTSD or PTSD-related conditions at the time of discharge attributable to their military service under the Hagel Memo standards of liberal and special consideration.
A few weeks later, on January 9, 2019, the Court rejected the Army's motion to dismiss, citing the same reasoning discussed in his order certifying the class.

The parties began to negotiate discovery plans. On November 12, 2019, the case was reassigned to Judge Charles S. Haight, Jr. It was then referred to Magistrate Judge Robert Spector on January 7, 2020 for the purpose of considering settlement by the parties. Since then, the parties have participated in a series of settlement conferences.

The parties filed a Joint Motion for Settlement on November 17, 2020. The parties agreed that class members that already applied to reconsideration of their discharge status would be permitted to reapply for reconsideration if their symptoms indicated PTSD or PTSD-related conditions. Veterans that had not already applied for reconsideration would be provided referred to legal and medical assistance to support their reconsideration applications. The defendants also agreed to update their review procedures and provide annual training to the reviewing board that is specifically tailored to mental health conditions. Finally, the defendants agreed to pay $185,000 in attorneys' fees and costs to the plaintiff's counsel.

As the settlement agreement is being implemented, the case remains ongoing.

Elise Coletta - 03/14/2019
Bogyung Lim - 06/15/2020
Becca Rogers - 12/25/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Defendant-type
Jurisdiction-wide
Disability
Mental impairment
Discrimination-basis
Disability (inc. reasonable accommodations)
Military status discrimination
General
Discharge & termination plans
Government Services (specify)
Habilitation (training/treatment)
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Defendant(s) Secretary of the Army
Plaintiff Description All Army, Army Reserve, and Army National Guard veterans of the Iraq and Afghanistan era (between 10/07/2001 to present) who were discharged with a less-than Honorable service characterization, had not received discharge upgrades to Honorable, and had diagnoses of PTSD or PTSD-related conditions.
Indexed Lawyer Organizations Jerome N. Frank Legal Services Organization (Yale)
Class action status sought Yes
Class action status granted Yes
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 12/09/2016
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)
  Kennedy v. Esper
Yale Law School
Date: 2019
By: Yale Law School (Yale)
[ Detail ] [ External Link ]

Court Docket(s)
D. Conn.
12/10/2020
3:16−cv−02010−WWE
PB-CT-0012-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D. Conn.
12/08/2016
Complaint [ECF# 1]
PB-CT-0012-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Conn.
04/17/2017
Amended Complaint [ECF# 11]
PB-CT-0012-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Conn.
09/19/2017
Order Denying Motion to Dismiss [ECF# 29] (2017 WL 4157527)
PB-CT-0012-0004.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Conn.
12/21/2018
Memorandum of Decision on Motion [ECF# 74]
PB-CT-0012-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Conn.
12/21/2018
Ruling Denying Motion to Dismiss [ECF# 75]
PB-CT-0012-0005.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Conn.
11/17/2020
Joint Motion for Preliminary Settlement Approval [ECF# 198]
PB-CT-0012-0006.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Eginton, Warren William (D. Conn.) show/hide docs
PB-CT-0012-0001 | PB-CT-0012-0004 | PB-CT-0012-0005
Garfinkel, William I. (D. Conn.) show/hide docs
PB-CT-0012-9000
Haight, Charles Sherman Jr. (S.D.N.Y.) show/hide docs
PB-CT-0012-9000
Spector, Robert M Court not on record show/hide docs
PB-CT-0012-9000
Plaintiff's Lawyers Burbank, Renee (Connecticut) show/hide docs
PB-CT-0012-0006 | PB-CT-0012-9000
Creelan, Jeremy (New York) show/hide docs
PB-CT-0012-0006 | PB-CT-0012-9000
Goldstein, William S.C (New York) show/hide docs
PB-CT-0012-9000
Kohlmann, Susan J. (New York) show/hide docs
PB-CT-0012-0006 | PB-CT-0012-9000
Montalto, Dana (Connecticut) show/hide docs
PB-CT-0012-0006 | PB-CT-0012-9000
Nelson, Sean D (Illinois) show/hide docs
PB-CT-0012-9000
Ramanathan, Ravi (New York) show/hide docs
PB-CT-0012-0006 | PB-CT-0012-9000
Tracer, Jacob (New York) show/hide docs
PB-CT-0012-0006 | PB-CT-0012-9000
Wenzloff, Aaron Paul (Illinois) show/hide docs
PB-CT-0012-0002 | PB-CT-0012-0003 | PB-CT-0012-9000
Wishnie, Michael J. (Connecticut) show/hide docs
PB-CT-0012-0002 | PB-CT-0012-0003 | PB-CT-0012-0006 | PB-CT-0012-9000
Defendant's Lawyers Elicker, Natalie Nicole (Connecticut) show/hide docs
PB-CT-0012-0006 | PB-CT-0012-9000
McConaghy, Michelle Lynn (Connecticut) show/hide docs
PB-CT-0012-9000
Nelson, David Christopher (Connecticut) show/hide docs
PB-CT-0012-9000

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