Veterans Obtain Class Certification over Discharge Policy
Jenner & Block is proud of its 2018 pro bono results:
On November 16, the firm won a pro bono victory on behalf of thousands of veterans when a judge certified a nationwide class-action lawsuit against the Navy Discharge Review Board (NDRB) and the US Department of Defense. The lawsuit challenges the NDRB’s process for granting upgrades when a veteran has been given a “less-than-honorable,” or “bad paper,” discharge. Acting as co-counsel with Yale Law School’s Legal Services Organization Veterans Clinic, the firm represents veterans who say they were denied the upgrade because they had undiagnosed mental health issues, such as PTSD.
The newly certified class in Manker v. Spencer will consist of thousands of Marines or sailors who have or would be subjected to unfair procedures in front of the NDRB. The veterans seek a change in their review process.
Since 2001, more than 2 million Americans have served in either Iraq or Afghanistan, and nearly a third of them suffer from PTSD and related mental health conditions, according to a press release issued by Yale about the judge’s decision. In 2014, the Defense Department ordered the US armed services to consider PTSD as a mitigating factor in the misconduct that causes bad paper discharges. But in 2017, the Navy review board granted upgrades to only 16 percent of applications—far fewer than the approximately 51 percent of upgrades given by Army and Air Force review boards, according to the press release.
Veterans who suffer from mental health conditions were not only denied upgrades to their discharges, but that denial “affected their eligibility for benefits like the GI Bill program, and, ironically, PTSD treatment from the Department of Veterans Affairs,” wrote Judge Haight of the Connecticut district court.
The team included Partners Jeremy M. Creelan and Susan J. Kohlmann and Associates Jeremy H. Ershow and Jessica A. Martinez. In 2015, the New York Law Journal named Mr. Creelan among the “Lawyers Who Lead by Example,” in part because of his work on this case.
Several media outlets, including Law360, covered the judge's decision.
In Celebrating Its 225th Year Anniversary, University of North Carolina Notes Alum and Partner Andrew Vail’s Contribution
The university is sharing profiles of some of the many “Tar Heels who have left their heelprint on the campus, their communities, the state, the nation and the world.” On November 14, the university featured a profile of 1929 graduate Henry Owl, a member of the Eastern band of Cherokee Indians who was the first person of color to be admitted to –– and graduate from –– the university. At UNC, Mr. Owls’ master’s thesis was titled “The Eastern Band of Cherokee Indians: Before and After the Removal.” In 1930, Mr. Owl was denied the right on the grounds that Indians were illiterate; he presented his thesis to the county voting registrar. But he was denied a second time on the grounds that Cherokees were wards of the government and not US citizens, in opposition to a 1924 law. Owl later testified before Congress, which then passed a law guaranteeing the Eastern Band of Cherokee Indians citizenship and the right to vote.
The profile of Mr. Owl notes that Jenner & Block Partner Andrew W. Vail, a 1999 UNC graduate who concentrated in American Indian history, established the Henry Owl Scholarship Fund for Undergraduate Students. The scholarship provides need-based funds to one or more undergraduate majors in the American studies department, with a preference for students in American Indian and indigenous studies.
“My major concentration was in Native American history, so I felt an immediate connection to Owl’s background,” Mr. Vail said in a 2014 interview with the university. “The distinction of being the first person of color to get a degree from Carolina is extremely significant and something that should be recognized. Also, Owl’s lifelong dedication to education –– to building a better life for himself, his family and community and those around him –– it all struck a chord in me.”
Settlement Ensures that Medicaid Participants Get Access to Hepatitis Treatment
Jenner & Block represented the Legal Council for Health Justice in its successful effort to end Illinois' policy of rationing Medicaid participants’ coverage of life-saving drugs to cure hepatitis C (HCV).
The deadliest infectious disease in the United States, HCV affects an estimated 3.5 million Americans, including 68,400 Illinoisans. Previously, individuals enrolled in Medicaid were required to have severe liver damage before receiving coverage for treatment that would cure them of HCV. Additionally, some Medicaid participants were required to provide proof of sobriety for six months.
In October 2018, Jenner & Block joined the Legal Council for Health Justice and the Center for Health Law and Policy Innovation at Harvard Law School in sending a formal demand letter to Illinois officials on behalf of Medicaid participants.
On November 7, 2018, the Illinois Department of Health and Family Services announced it would change its policy. Now, a recognized HCV cure – direct acting antivirals, or DAAs – is accessible to thousands of Illinoisans, many of whom were previously denied treatment until they reached end-stage disease.
Associates D. Matthew Feldhaus, Alexander J. Bandza and Lindsey A. Lusk represented the council, with supervision from Partner Michael T. Brody.
Jenner & Block Partners with Lawyers’ Committee for Better Housing, Secures Housing Settlement for Pro Bono Client
Earlier this year, the Lawyers’ Committee for Better Housing (LCBH) contacted Jenner & Block about a complex bankruptcy case. LCBH represented a Chicago renter whose apartment building, unbeknownst to her, had been sold in foreclosure. After she was threatened with eviction, LCBH began drafting a complaint against TD REO, the California-based company that purchased the building. The complaint asserted multiple violations of the Keep Chicago Renting Ordinance, which provides protections and statutory damages for tenants renting foreclosed properties. But as they prepared the complaint, LCBH discovered that TD REO had filed bankruptcy in California, preventing LCBH from filing its lawsuit in Chicago.
With complexities mounting, LCBH contacted Jenner & Block to combine pro bono efforts. Led by Partner Todd C. Toral and Associate John D. VanDeventer, with assistance from Partners Landon S. Raiford, Christopher Tompkins, and Associate Michelle Peleg, the team worked across practice groups and offices on the case. And after tense negotiations with opposing counsel, the team was able to effectively increase TD REO’s initial settlement offer, settling the multi-state bankruptcy matter.
California’s Fifth District Court of Appeal Rules in Favor of Pro bono Client, Removing Improperly Imposed Restraining Order
Jenner & Block represented a pro bono client in removing an improperly imposed restraining order against her. Our client, M. C., had presented evidence to a judge in Tulare County Superior Court that her ex-husband had a history of inflicting serious, and in some cases life-threatening, physical abuse on her. The trial court nevertheless granted mutual restraining orders against both M.C. and her ex-husband, based on an April 2017 incident in which M.C. went to her ex-husband’s home to pick up their two minor children. The encounter became violent; M.C.’s ex-husband grabbed her by the neck and tried to drag her around the house, until she bit him and broke free. As she fled the house, she threw a lamp that she had picked up inside at an unoccupied car in the driveway. Finding that both parties “acted primarily as aggressor,” judge imposed mutual restraining orders against both parties. Despite finding that acts of abuse had occurred, the trial court also maintained a joint custody order of the parties’ two children.
But on September 26, 2018, the Fifth District Court of Appeal lifted the restraining order against M.C. and reversed the joint custody order. In the opinion authored by Justice Jennifer R. S. Detjen, the Court of Appeal noted that M.C. violated no order in going to her ex-husband’s home and that there was no finding that she placed him in fear or otherwise harassed him. The Court of Appeal further found that her conduct was a direct response to abuse at the hands of her ex-husband and occurred because she was fleeing the location where that abuse occurred. Additionally, the Court of Appeal held that the trial court had failed to apply the presumption against granting an abuser joint custody of the children as required by law.
The team representing M.C. included Partner Kirsten Hicks Spira and Associates AnnaMarie A. Van Hoesen, who argued the case in front of the appellate court, and Elizabeth H. Capel. Our firm was co-counsel with Anya Emerson, Jennafer Dorfman Wagner, Cory D. Hernandez and Erin C. Smith of the Family Violence Appellate Project and Jeneé Barnes of Central California Legal Services.
Team's Client Receives Permanent Resident Status
In 2015, former associate Emily Deininger, former partner Jared Manes, and Partners David C. Lachman and Michael W. Ross obtained a grant of asylum for Marcos, a seventeen-year-old Honduran boy who had fled to the United States because he was being persistently abused by his grandmother and the other family members with whom he had been living. Marcos’s case was referred to Jenner by Kids in Need of Defense (“KIND”), a not-for-profit organization that identifies pro bono attorneys for unaccompanied alien children, in October 2014.
Ms. Deininger and Mr. Manes filed an affirmative asylum application on Marcos’s behalf in April 2015, contending that he had been persecuted because he was a member of a “particular social group” of children living in Honduras without the benefit of parental protection, , and that the Honduran government has been systematically unable or unwilling to protect such children from child abuse. Marcos had never met his father, and his mother had moved to the United States when he was only two years old. Marcos is also Garifuna, an indigenous ethnic group, which exposed him to widespread racism and caused him to be ostracized at school.
After submitting Marcos’s asylum application, Ms. Deininger and Mr. Lachman worked to prepare supplemental briefing and demonstrated through three expert reports that Marcos had physical scars consistent with long-term abuse, that he was suffering psychological symptoms of severe emotional and physical abuse, and that the government of Honduras was unable or unwilling to protect children who are without parental protection. Ms. Deininger and Mr. Lachman then represented Marcos at his successful asylum interview with the Newark Asylum Office.
In 2017, Ms.Deininger , Mr. Manes and Associate Melissa T. Fedornak then filed a green card application on Marcos’s behalf. In July 2018, Marcos received legal permanent resident status, making him eligible to naturalize as a US citizen in 2022. Marcos is now living happily with his mother in the Bronx, where he is attending high school and enjoying spending his free time playing soccer with friends.