The Court has not yet certified Calixto, et al. v. United States Department of Defense, et al., Civil Action No. 18-1551 as a class action. Therefore, MAVNIs, other than those specifically named in the Calixto complaint, are not plaintiffs or parties to the Calixto action and are not yet represented as class members by Fried Frank in that case or with respect to the discharge issues raised in that case. At this point, given recent developments with respect to the Government’s discharge policy, the Court has deferred consideration of class action status until Plaintiffs have the opportunity to respond to the new Government policy and tailor their claims and class certification arguments to the current situation (the Court’s denial of Plaintiffs’ prior class certification motion was “without prejudice” and does not mean that class certification is no longer a possibility).
However, there may be information from the Calixto case that MAVNIs, particularly those in the DTP (Selected Reservists) or DEP (Regular Army) who purportedly have been discharged or are subject to separation proceedings by the Army, may find useful, including the following:
– The Court has ordered the Army to file bi-weekly status reports concerning changes the Army is making to its policy for MAVNI DEP and DTP administrative separation procedures. Defendants’ bi-weekly reporting regarding “any updates regarding the Army’s policy with respect to administrative separation procedures applicable to DEP and DTP members, as well as any intention to discharge any DEP or DTP member in accordance with this policy” pursuant to the Court’s August 13, 2018 order should continue.
– Defendants filed an October 26, 2018 memorandum signed by the Assistant Secretary of the Army, Manpower and Reserve Affairs (“ASA M&RA”) authorizing the Deputy Chief of Staff, G-1, to resume making military service suitability determinations (“MSSDs”) and initiating involuntary administrative separations for certain members of the DEP and DTP recruited through the MAVNI program. The October 26, 2018 Memorandum can be found through this LINK.
– The October 26, 2018 Memorandum references two written Notices that MAVNIs should get prior to being discharged for an unfavorable MSSD. The first Notice should be sent following an adverse MSSR and gives the soldier 30 days to respond to so-called “derogatory” or unfavorable information. The second Notice should be sent to the soldier following a final unfavorable MSSD (if applicable) and should include the information required by Chapter 3 of Army Regulation 135-178, which requires, among other things, that the soldier be told the following:
– “The least favorable characterization or description of service authorized for the proposed separation.”
– That the soldier has the “right to obtain copies of documents that will be sent to the separation authority supporting the basis of the proposed separation. Classified documents may be summarized.”
– “The Soldier’s right to consult with military legal counsel. The Soldier may also consult with civilian counsel retained at the Soldier’s own expense.”
Chapter 3 of AR 135-178 also specifies the manner in which notice of discharge/separation should be delivered to the soldier: “Reasonable effort should be made to furnish copies of the notice to the Soldier through personal contact by a representative of the command. In such a case, a written acknowledgment of the notice will be obtained. If the Soldier cannot be personally contacted or refuses to acknowledge receipt of the notice, the notice will be sent by registered or certified mail, return receipt requested, to the most recent address furnished by the Soldier as an address for receipt or forwarding of official mail. . . If available, the command will contact the Soldier via a known email address, social media contact, or cellular phone number.”
– Defendants have not provided Plaintiffs or the Court with any additional information about this new policy beyond what is contained in the October 26, 2018 Memorandum. At this point, Plaintiffs’ counsel has not received a list identifying the soldiers who Defendants intend to be covered by the Memorandum, nor have we received confirmation of soldiers who will not be covered by the Memorandum. Further, the Memorandum does not specify which discharges the Army considers to be “unfavorable MSSD” discharges versus discharges for some other reason. Please note that Plaintiffs’ counsel does not even have a complete listing of the names of MAVNI soldiers who have been summarily discharged by the Army. In addition, the October 26, 2018 Memorandum does not explain how “reinstatement” for discharged soldiers subject to the Memorandum will work.
– To the extent that Defendants provide additional information about the October 26, 2018 Memorandum, Plaintiffs’ counsel will update this website. We encourage you to check back periodically.
Key documents from the Calixto action can be found through these links:
- Calixto Docket 19 – August 3, 2018 Amended Complaint
- Calixto Docket 21 – August 3, 2018 Motion for Class Certification
- Calixto Docket 33 – October 1, 2018 Plaintiffs’ (1) Response to Defendants’ Stay Motion (Dkt. 31) and (2) Request for Briefing Schedule and Other Relief
- Calixto Docket 39 – October 5, 2018 Order re: Defendants’ motion for leave to file ex parte and in camera
- Calixto Docket 44 – October 12, 2015 Plaintiffs’ Reply in Support of Motion to Lift Stay
- Calixto Docket 45– October 15, 2018 Defendants’ Status Report
- Calixto Docket 50 – October 31, 2018 Department of the Army October 26, 2018 Memorandum
- Calixto Docket 55 – November 15, 2018 Court Order
Please check back periodically as Fried, Frank, Harris, Shriver & Jacobson LLP (“Fried Frank”), counsel for the Kirwa class and the Nio class, will be adding and updating documents and information found on this Site.
This website and the materials provided herein are made available by Fried Frank to provide publicly available information regarding the Kirwa and Nio class actions. Nothing on this website creates or establishes any attorney client relationships between Fried Frank and any persons or entities. Your use of the Site is conditioned on your understanding and acknowledgement that (1) the material and information on the Site is not offered as and does not provide legal advice on any matter and should not be used as a substitute for seeking legal advice, and (2) Fried Frank is not and will not be responsible for any errors or omissions on this website or any action or failure to act in reliance upon information on the Site.