MEMORANDUM OPINION
ELLEN
S. HUVELLE UNITED STATES DISTRICT JUDGE
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 of procedure required by law”
(Count III); 4) a claim pursuant to the U.S. Constitution for
violation of procedural and substantive due process, alleging
that the challenged discharge actions violated the
plaintiffs' Fifth Amendment rights (Count IV); 5) an
equal protection claim under the U.S. Constitution, arguing
that non-citizens who entered the Army through the MAVNI
program have been treated differently from other soldiers due
to their national origin (Count V); and 6) a First Amendment
retaliation claim, alleging that defendants took retaliatory
actions against plaintiffs in direct response to their filing
of the First Amended Complaint (Count VI). (2d Am. Compl.
¶¶ 187-213.)
Defendants
filed a motion to dismiss for lack of subject matter
jurisdiction on January 25, 2019. (Defs.' Memo. in Supp.
of Mot. to Dismiss (“Mot.”), ECF No. 68-1.)
Defendants' motion argues that all counts of the Second
Amended Complaint should be dismissed because the United
States has not waived sovereign immunity with respect to
plaintiffs' claims. (Id. at 1-2.) Defendants
assert that plaintiffs' APA claim presents a broad
programmatic attack on the manner in which defendants conduct
Army recruitment-instead of challenging a discrete final
agency action-and thus, plaintiffs cannot properly invoke the
waiver of sovereign immunity provided for in the APA.
(Id. at 11-13.) Defendants also argue that since no
other statute provides for a waiver of sovereign immunity for
plaintiffs' claims, all of plaintiffs' claims-both
APA and non-APA-should be dismissed for lack of subject
matter jurisdiction. (Id. at 28-29.)
Plaintiffs
filed an opposition to defendants' motion to dismiss on
February 8, 2019. (Pls.' Opp. to Defs' Mot. to
Dismiss (“Opp.”), ECF No. 74.) Defendants then
filed a reply in support of their motion, which included a
new argument that plaintiffs' request for reinstatement
is not justiciable. (Defs.' Reply in Supp. of Mot. to
Dismiss (“Reply”) at 20-22, ECF No. 75.)
Plaintiffs subsequently filed a motion for leave to file a
sur-reply (ECF No. 78), which defendants have opposed (ECF
No. 80).
ANALYSIS
For the
reasons set forth below, the Court rejects defendants'
argument that it lacks subject matter jurisdiction and denies
defendants' motion to dismiss.
I.
LEGAL STANDARD
A
motion brought under Federal Rule of Civil Procedure 12(b)(1)
seeks to dismiss claims based on a court's lack of
subject matter jurisdiction. “When evaluating a Rule
12(b)(1) motion, ‘the court must treat the plaintiffs
factual allegations as true and afford the plaintiff the
benefit of all inferences that can be derived from the facts
alleged.'” Conference of State Bank Supervisors
v. Office of Comptroller of Currency,313 F.Supp.3d 285,
294 (D.D.C. 2018) (quoting Jeong Seon Han v. Lynch,223 F.Supp.3d 95, 103 (D.D.C. 2016)). An argument that the
United States has not waived sovereign immunity for purposes
of a given claim raises a ...