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.
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 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.
UPDATE (May 31, 2019): We have learned that some Army units and recruiters are distributing a document entitled “Voluntary Waiver of Notification of Adverse Military Service Suitability Recommendation” to MAVNI soldiers who are still waiting for final MSSDs. An example of that document can be viewed through this link.
We understand that some soldiers received this MSSR Waiver Notification even though they did not request it or speak with anyone in the Army about it in advance of receiving it.
The last page of the MSSR Waiver Notification is an “Acknowledgement of Notice and Election” form. The document instructs soldiers to fill out this form and return in to the Army.
If you have received this document, and if you do not want to waive your right to be informed of the basis for your unfavorable MSSR or the opportunity to refute your unfavorable MSSR, you should check the space next to “I elect not to waive receipt” paragraph on the Election Form before returning it the Army. That is the paragraph immediately above the “Name” line on the Form. In addition, if you did not ask to waive your MSSR notification and rebuttal rights, you may want to add the following comment next to your signature on the form: ”I am acknowledging receipt of this form only, but I am not acknowledging the accuracy of statements within the notification because I did not make either of the requests referred to in the second sentence of Part 3 on page 2. I am reserving all of my rights.”
Paragraph 6 of the document identifies an Army “Point of Contact” to whom you can direct questions. If you received this document and are considering checking the “I voluntarily elect to waive” option on the Election Form, you may wish to consider gathering more information before making that selection. For example, you may want to ask the Army to answer the following questions:
- What rights exactly are being waived? And, what rights are not being waived?
- If I select “waive,” which is likely to lead to my discharge from the military, how long does the discharge process take and what does it entail?
- What kind of discharge will I receive?
- How could such a waiver (and discharge) negatively affect me, not only with respect to my military career, but also with respect to any immigration matters, military and veterans’ benefits, reputation, and civilian jobs and clearances?
- How does this waiver relate to the MAVNI litigations pending in federal court in Washington, DC?
- In the Nio class action, the district court recently decided that USCIS had to move forward with MAVNI naturalization applications even if MSSRs and MSSDs remain pending, so what are the benefits (if any) and disadvantages of “waiving” my MSSR/MSSD challenge rights if that leads to my discharge from the military?
- Can I speak with a JAG lawyer about the potential waiver, my rights, and how such a waiver may affect me? If “yes,” how do I get assigned a JAG lawyer to help me?
- Will I be given time to speak with a lawyer?
- What happens if 15 days pass and I haven’t responded to the notification?
If you are unable to obtain adequate answers from the Army right now or advice from a lawyer, you may want to select “I elect not to waive receipt” until you have the answers and information you need to make a more informed decision.
The District Court in the Calixto litigation has been informed about the MSSR Waiver Notification. A copy of that filing is available through this link.
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
- Calixto Docket 61 – January 2, 2019 Second Amended Class Action Complaint
- Calixto Docket 62 – January 2, 2019 Plaintiffs’ Renewed Motion for Class Certification
- Calixto Docket 64 – January 7, 2019 Defendants’ Status Report
- Calixto Docket 71 – February 5, 2019 Status Report
- Calixto Docket 73 – February 8, 2019 Reply Memorandum in Support of Plaintiffs’ Renewed Motion for Class Certification and Appointment of Counsel
- Calixto Docket 74 – February 8, 2019 Plaintiffs’ Opposition to Defendants’ Motion to Dismiss
- Calixto Docket 75 – February 15, 2019 Defendants’ Reply Memorandum in Further Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction
- Calixto Docket 76 – February 19, 2019 Status Report
- Calixto Docket 77 – February 25, 2019 Plaintiffs’ Notice of Supplemental Authority
- Calixto Docket 85 – April 15, 2019 Status Report
- Calixto Docket 90 – April 29, 2019 Status Report
- Calixto Docket 91 – May 1, 2019 Defendants’ Answer to Second Amended Class Action Compliant and Affirmative Defenses
- Calixto Docket 92 – May 7, 2019 Reply Memorandum in Support of Plaintiffs’ Renewed Motion for Class Certification and Appointment of Class Counsel
- Calixto Docket 95 – May 16, 2019 Court’s Opinion Denying Defendants’ Motion to Dismiss
- Calixto Docket 97 – May 28, 2019 Defendants’ Status Report
- Calixto Docket 98 – May 30, 2019 Plaintiffs’ Notice Concerning Defendants’ May 28, 2019 Status Report
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.