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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 Due Process Clause of the Fifth Amendment and for violating the Administrative Procedure Act (5 U.S.C. § 706). This veteran was ... 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 Due Process Clause of the Fifth Amendment and for violating the Administrative Procedure Act (5 U.S.C. § 706). This veteran was deployed post-9/11 to Iraq and Afghanistan, suffered from service-related mental health issues, and was subsequently dismissed with less-than-Honorable discharges. The veteran, represented by the Veterans Legal Services Clinic and Jerome N. Frank Legal Services Organization at Yale Law School and the Connecticut Veterans Legal Center, sought equitable and injunctive relief and attorneys' fees and costs. He claimed that the Army failed to treat and accommodate his mental health conditions, which were a direct result from his service. He subsequently was charged with a variety of infractions, all related to his mental health issues, which led to a less-than-Honorable discharge. Now as a civilian, his less-than-Honorable status impedes his access to the very services and benefits normally available to veterans to enable them to heal their wounds and thrive in civilian life. The case was assigned to Judge Warren W. Eginton.

Approximately five months after the complaint was filed, he amended his complaint to bring a class action suit with an additional class representative. This representative brought the same claims as the original plaintiff with the added allegation of a violation of the Little Tucker Act, claiming that the military recouped 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 characterization of service." Plaintiffs alleged that the ADRB wrongfully denied their applications for discharge upgrades.

The veterans sought directives from 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. They also sought individual statuses to be upgraded to "Honorable" to accurately reflect their service and to recoup any enlistment bonuses redacted in light of their less-than-Honorable discharge.

The Army filed a motion to dismiss the case in March 2017, which was dismissed one month later without prejudice. Three months later, in June 2017, the plaintiffs moved to certify their class; the motion was opposed and eventually dismissed without prejudice. Also in June, the Army filed an additional motion to dismiss or, alternatively, voluntary remand. The court denied the motion to dismiss but granted the voluntary remand that September. Judge Eginton reasoned that a voluntary remand would be the most efficient way for the two representative plaintiffs to have their discharge status corrected (he noted that he would "grant a voluntary remand only to the extent that defendant will revisit the original applications that are the subject of this litigation"), and would be a useful way to complete the record for their larger class action case.

In October, the second representative plaintiff's discharge status was upgraded to honorable, and the Army was prevented from recouping any of her enlistment bonus. The remand efforts for the first, original plaintiff experienced administrative issues and mistakes, delaying the review of his discharge application until March 2018.

On June 4, 2018, the Army filed another motion to dismiss and the veterans filed another motion to certify their class. The Judge granted the motion to certify 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.

On March 6, 2019, the parties began to negotiate proposed discovery plans, and vigorously pursued discovery.

On November 12, 2019, this 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. As of June 12, 2020, the latest settlement conference was held on June 1, 2020. This case is ongoing.

Elise Coletta - 03/14/2019
Bogyung Lim - 06/15/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Content of Injunction
Discrimination Prohibition
Other requirements regarding hiring, promotion, retention
Preliminary relief granted
Defendant-type
Jurisdiction-wide
Disability
Mental impairment
Discrimination-basis
Disability (inc. reasonable accommodations)
Military status discrimination
General
Discharge & termination plans
Government Services (specify)
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
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 None Yet / None
Public Int. Lawyer Yes
Source of Relief Settlement
Form of Settlement Private Settlement Agreement
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 ]

Docket(s)
3:16−cv−02010−WWE (D. Conn.)
PB-CT-0012-9000.pdf | Detail
Date: 06/15/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
PB-CT-0012-0002.pdf | Detail
Date: 12/08/2016
Source: PACER [Public Access to Court Electronic Records]
Amended Complaint [ECF# 11]
PB-CT-0012-0003.pdf | Detail
Date: 04/17/2017
Source: PACER [Public Access to Court Electronic Records]
Order Denying Motion to Dismiss [ECF# 29] (2017 WL 4157527) (D. Conn.)
PB-CT-0012-0004.pdf | WESTLAW | Detail
Date: 09/19/2017
Source: PACER [Public Access to Court Electronic Records]
Memorandum of Decision on Motion [ECF# 74] (D. Conn.)
PB-CT-0012-0001.pdf | Detail
Date: 12/21/2018
Source: PACER [Public Access to Court Electronic Records]
Ruling Denying Motion to Dismiss [ECF# 75] (D. Conn.)
PB-CT-0012-0005.pdf | Detail
Date: 12/21/2018
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-0012-9000
Creelan, Jeremy (New York) show/hide docs
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-0012-9000
Nelson, Sean D (Illinois) show/hide docs
PB-CT-0012-9000
Ramanathan, Ravi (New York) show/hide docs
PB-CT-0012-9000
Tracer, Jacob (New York) show/hide docs
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-0012-9000
Defendant's Lawyers Elicker, Natalie Nicole (Connecticut) show/hide docs
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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