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Calixto v. United States Department of the Army

United States District Court, District of Columbia

May 16, 2019

LUCAS CALIXTO, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE ARMY, et al., Defendants.

          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 ...


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