Calixto v. United States Department of the Army

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA LUCAS CALIXTO, et al., Plaintiffs, v. Civil Action No. 18-1551 (ESH) UNITED STATES DEPARTMENT OF THE ARMY, et al., Defendants. MEMORANDUM OPINION Defendants have filed a motion to dismiss for lack of subject matter jurisdiction. For the reasons set forth below, the Court will deny the motion. BACKGROUND Plaintiffs are United States Army soldiers who enlisted through the Military Accessions Vital to the National Interest (“MAVNI”) program, “which enables certain non-U.S. citizens to enlist and serve in the U.S. Armed Forces.” (2d Am. Compl. ¶¶ 1–2, ECF No. 61.) Plaintiffs assert that various Army regulations, Department of Defense regulations, and the due process clause of the Fifth Amendment of the U.S. Constitution require that MAVNI soldiers be afforded certain procedural protections—such as notice and an opportunity to respond—before they can be lawfully discharged from the Army. (Id. ¶¶ 136–158.) Plaintiffs argue that, in contravention of these legal requirements, they were “summarily discharged” by the Army without notice or process. (Id. ¶¶ 1, 6.) Plaintiff Lucas Calixto was the first discharged MAVNI soldier to file suit, bringing his complaint on June 28, 2018, against defendants United States Department of the Army (the “Army”) and its Secretary, Mark Esper (collectively “defendants”). (Compl., ECF No. 1.) Calixto argued that he was discharged without “prior notice of the [d]efendants’ intent to discharge him,” without “specific reasons or grounds for the discharge,” and without knowledge “of the facts or circumstances that purported to justify or explain the discharge.” (Id. ¶ 1.) On August 3, 2018, Calixto amended his complaint, adding seven additional discharged soldiers as named plaintiffs who, together with Calixto, have sought to represent a class of other similarly- situated discharged MAVNI soldiers. (Am. Compl., ECF No. 19.) After a status conference on November 14, 2018, the Court set a deadline for plaintiffs to further amend their complaint. Plaintiffs’ Second Amended Complaint was filed on January 2, 2019. (2d Am. Compl.) The operative Second Amended Complaint lists a total of eleven named plaintiffs who seek to represent a putative class of MAVNI soldiers who were summarily discharged from the Army without receiving procedures that plaintiffs allege were required. (Id. ¶¶ 1, 137, 183.) On the same day that the Second Amended Complaint was filed, plaintiffs also filed a motion for class certification and appointment of class counsel, which is currently pending before the Court. (Pls.’ Mot. for Class Cert., ECF No. 62.) The Second Amended Complaint has six counts: 1) a claim for “a declaratory judgment that the final discharge decisions made with respect to [p]laintiffs and the [putative] [c]lass are unlawful and must be revoked” (Count I); 2) a claim for injunctive relief seeking, inter alia, that defendants revoke discharge actions against putative class members and fully reinstate them to their pre-discharge action status (Count II); 3) a claim under the Administrative Procedure Act (“APA”) alleging that defendants violated 5 U.S.C. § 706(2) by taking agency actions that were arbitrary, capricious and “without observance ...

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