Suit Over Army Discharge of Noncitizen Soldiers Advances

WASHINGTON (CN) – A federal judge refused Thursday to dismiss a class action from noncitizen soldiers who claim the Army summarily discharged them without either explanation or due process.

The Army had brought the motion to dismiss this past January, saying it would need to waive sovereign immunity for the court to hear the suit led by Lucas Calixto.

U.S. District Judge Ellen Huvelle in Washington rejected this argument.

“Plaintiffs’ request for reinstatement – a form of judicial relief that the D.C. Circuit has previously afforded successful military plaintiffs – does not somehow divest this court of jurisdiction over plaintiffs’ claims,” the 10-page ruling says.

Huvelle also dispatched with the Army’s characterization of the suit as “a broad programmatic attack” on Army recruitment.

“Given defendants’ concession that each discharge order represents a discrete and final agency action, the Court can easily reject any assertion that plaintiffs’ Second Amended Complaint … represents a broad programmatic attack,” Huvelle wrote.

Under the law, courts have jurisdiction to review discrete and final agency actions.

The soldiers are represented by Douglas Baruch and Jennifer Wollenberg with the firm Fried Frank. Wollenberg declined to comment on the ruling.

In a Jan. 2 amended version of their complaint, the soldiers argued that the military owes them certain due-process protections under the Constitution, as well as Army and Defense Department regulations.

Among those protections, the soldiers say they are entitled to an opportunity to respond before the Army discharges them.

The soldiers say they believe the military targeted them for discharge because they enlisted through a program for non-U.S. citizens who possess specialized health care or language skills. 

Known as the Military Accessions Vital to the National Interest program, the noncitizen enlistees were promised a fast track to U.S. citizenship in exchange for their service.

The Defense Department suspended the program in 2016, however, and stopped processing naturalization applications, sparking several legal challenges over which Huvelle is also presiding.

In this case the soldiers claim they were caught off guard when discharged, having received no prior notice, explanation or opportunity to challenge their dismissals.

“To this day, many Plaintiffs do not know the specific grounds for the discharge action (beyond, where they exist, the after-the-fact labels provided by the Army pursuant to a Court order in this litigation) and many similarly-situated soldiers remain unsure even to which of these broad discharge categories they belong,” the Jan. 2 filing says.

The soldiers also say their professional reputations and immigration statuses are jeopardized by the military’s classification of their discharge as “‘uncharacterized or ‘entry level.’”

Calixto says he had received several honorable-service certifications and had been promoted shortly before his discharge. Since filing the lawsuit, he says the Army resinstated him, along with six other plaintiffs in the case.

Representatives for the Defense Department declined to comment on the pending litigation, as did attorneys for the Army at the U.S. Attorney’s Office for the District of Columbia.

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