Susan Kohlmann and Jeremy Creelan of Jenner & Block.

A class action lawsuit against the U.S. Army is gaining momentum, but its attorney has been furloughed because of the government shutdown.

The case is being handled by three lawyers working pro bono from Jenner & Block and seven individuals from the Yale University Veterans Legal Services Clinic. It seeks relief for more than 50,000 Iraq and Afghanistan veterans, who say mental illness and other work-related injuries caused them to receive a less-than-honorable discharge that affected their prospects.

But the partial shutdown of the federal government, now in its sixth day, is affecting the U.S. Army's lawyer, who left an outgoing message on his voicemail explaining his situation.

“This is David Nelson, and as of Friday at 4:50 p.m., it appears the government is shut down, and I will be placed on furlough and will be unable to get your messages,” said the message from Nelson, who works with the U.S. Attorney's Office in New Haven, Connecticut. “As soon as I return, I will respond to your voicemails.”

The New Haven office of the U.S. Attorney's Office had a skeleton crew Thursday. The person who answered the phone said he was a desk officer and considered “essential” staff. Nelson's classification was unclear Thursday.

Neither side has asked for a delay because of the partial government shutdown.

Class Certified

The lawsuit alleges veterans developed post-traumatic stress disorder or PTSD, traumatic brain injury or TBI, and other mental health conditions while in service and either received a general discharge or something other than an “honorable” discharge. The suit, which U.S. District Court District of Connecticut Judge Warren Eginton certified as a class action Dec. 21, states that PTSD, TBI or other mental health conditions contributed to the plaintiffs' classifications and discharge status.

The two named plaintiffs, Stephen Kennedy and Alicia Carson, were originally from Connecticut and served in either Iraq or Afghanistan. Their lawsuit, according to third-year Yale Law School intern Jordan Goldberg, seeks to ensure the Army Discharge Review Board abides by federal rules.

“Not every one of the 50,000 cases will be an upgrade, but the vets are entitled to a fair shot under the rules of the Department of Defense,” he said.

Goldberg, 26, has worked, at no charge, on the case since January 2017, when he joined the law school's Veterans Legal Services Clinic. A native of Gainesville, Florida, Goldberg will be joining a New York City law firm next year. He declined to name the firm. Goldberg was managing editor of the Yale Law Journal. He was also a summer associate at Boies Schiller Flexner from May to July 2018 and worked two months in 2017 for the Office of the New York State Attorney General.

Representing the plaintiffs, pro bono, from Jenner & Block's New York City offices are Jeremy Creelan, Susan Kohlmann and Jacob Tracer.

Creelan, according to the firm's website, is a highly experienced litigator who rejoined Jenner & Block as a partner in 2014 after serving for three years in the administration of New York Gov. Andrew Cuomo, first as special counsel for Public Integrity and Ethics Reform and then as special counsel to the governor. Creelan, who first joined the firm in 2006, is a member of the  litigation and complex commercial litigation departments. He is also a member of the government controversies and public policy litigation practices. He has broad experience in class action consumer fraud defense and investigations and complex insurance and reinsurance disputes, among others.

Kohlmann is an experienced litigator in the firm's content, media and entertainment practice. She is also chair of the trademark, advertising and unfair competition practice. Kohlmann has represented companies in various class action and other complex commercial matters. She also has extensive experience briefing and arguing appeals in the New York Appellate Court and several federal circuit courts. Kohlmann is also chair of the firm's diversity committee.

Tracer is an associate in the litigation department and his experience includes litigating intellectual property and complex commercial disputes in both state and federal court. He maintains an active pro bono practice that includes appeals, trials and proceedings in immigration and family court. Prior to attending law school, Tracer worked as an editor on the syndication desk of The New York Times.

Creelan, Kohlmann and Tracer did not respond to a request for comment by press time Thursday.

Of the more than 2 million Americans that have served in either Afghanistan or Iraq since September 2001, nearly a third suffer from PTSD and/or related mental health conditions, Goldberg said.

“I think what we are asking for is relatively straightforward,” Goldberg told the Connecticut Law Tribune Thursday. “We are holding the Army Discharge Review Board to its obligation. We are not seeking broad structural changes.”

Goldberg noted that veterans who receive less than an honorable discharge are denied access to critical government services such disability benefits, mental health treatment and incentives under the Servicemen's Readjustment Act of 1944, also known as the G.I. Bill. It can also impair employment prospects, he said.

In a statement, plaintiff Kennedy, who is founder of the Connecticut chapter of the Iraq and Afghanistan Veterans of America, said, “The cost of this continuing refusal to reckon with the reality of mental illness in the military is more than unjustly denied benefits, it is a generation of lost promise and opportunity for countless soldiers suffering the invisible wounds of war as a result of their sacrifice for country.”

Army spokeswoman Elizabeth Chamberlain did not respond to a request for comment by press time. Army counsel Nelson was not available for comment because of the government shutdown.

President Donald Trump announced his intentions to continue the shutdown until legislators agree to fund a wall along the U.S.-Mexico border.