UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

LUCAS CALIXTO, et al., 

 Plaintiffs, 

 v. 

UNITED STATES DEPARTMENT OF 

THE ARMY, et al., 

 Defendants. 

Civil Action No. 18-1551 (ESH) 

 

MEMORANDUM OPINION 

 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 
2 

“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 similarlysituated 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, 
3 

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 nonAPA—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). 
4 

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 plaintiff’s 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 

jurisdictional question properly addressed under a Rule 12(b)(1) motion or sua sponte by the 

Court. See Brown v. Sec’y of Army, 78 F.3d 645, 648 (D.C. Cir. 1996).1

II. DEFENDANTS’ MOTION TO DISMISS 

A. The APA’s Discrete, Final Agency Action Requirement 

Causes of actions brought under the APA must present a challenge to an agency action 

that is both final and discrete. The finality requirement applies “[w]here no other statute 

provides a private right of action” and derives from the text of APA § 704. Norton v. S. Utah 

 

1

 In the Court’s analysis of the present motion, it will be necessary to touch upon the difference 

between a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) and a 

motion to dismiss for failure to state a claim under Rule 12(b)(6). A motion brought under Rule 

12(b)(6) seeks to dismiss claims based on a failure of the complaint to state a claim upon which 

relief can be granted. “To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must 

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 570 (2007)). 
5 

Wilderness Alliance, 542 U.S. 55, 61–62 (2004); 5 U.S.C. § 704 (providing for judicial review of 

“final agency action for which there is no other adequate remedy in a court”). The “discrete” 

requirement comes from judicial interpretation of APA § 551(13), which provides the APA’s 

definition of “agency action.” See 5 U.S.C. § 551(13). Section 551(13) defines an “agency 

action” as “whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or 

denial thereof, or failure to act.” Id. In Norton, the Supreme Court explained that the five 

specific categories listed in this definition (agency rules, orders, licenses, sanctions, and relief) 

all “involve circumscribed, discrete agency actions.” 542 U.S. at 62. Thus, “an ‘equivalent . . . 

thereof’ must also be discrete (or it would not be equivalent), and a ‘denial thereof’ must be the 

denial of a discrete listed action (and perhaps denial of a discrete equivalent).” Id. 

Because every possible category of “agency action” under § 551(13) involves a discrete 

action, parties cannot bring APA claims that present a “broad programmatic attack.” Id. at 64. 

The Supreme Court confronted a broad programmatic attack in Lujan v. National Wildlife 

Federation, 497 U.S. 871 (1990), where it rejected plaintiffs’ attempt to bring a challenge to the 

entirety of the Bureau of Land Management’s (“BLM’s”) “so-called ‘land withdrawal review 

program,’” which did not “refer to a single BLM order or regulation, or even to a completed 

universe of particular BLM orders and regulations.” Id. at 890. In Norton, the Supreme Court 

similarly rejected a general challenge to the Bureau of Land Management’s compliance with 

broad statutory mandates, as the suit did not complain of the agency’s failure to take discrete 

actions that were legally required. 542 U.S. at 65–66. 

Under the established law of the D.C. Circuit, the APA’s requirement of a final, discrete 

agency action is a non-jurisdictional requirement that limits an APA cause of action; it has no 

bearing on the scope of the United States’ waiver of sovereign immunity. See Trudeau v. Fed. 
6 

Trade Comm’n, 456 F.3d 178, 184 (D.C. Cir. 2006) (“[T]he APA’s final agency action 

requirement is not jurisdictional.”); Perry Capital LLC v. Mnuchin, 864 F.3d 591, 620–21 (D.C. 

Cir. 2017) (“[T]he requirement of final agency action in § 704 is not a condition of the waiver of 

immunity. . . , but instead limits the cause of action created by the APA”). Indeed, the D.C. 

Circuit has concluded that it would be erroneous for a district court to dismiss an APA claim 

under Rule 12(b)(1) for a lack of final agency action, as this is a non-jurisdictional issue properly 

addressed under Rule 12(b)(6). Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety 

Comm’n, 324 F.3d 726, 731 (D.C. Cir. 2003).2 

B. APA § 702’s Waiver of Sovereign Immunity 

Contrary to defendants’ argument (see Mot. at 28), the second sentence of APA § 702 

provides for a waiver of sovereign immunity that is sufficiently broad to encompasses both APA 

and non-APA claims. See 5 U.S.C. § 702. This sentence states that “[a]n action in a court of the 

United States seeking relief other than money damages and stating a claim that an agency or an 

officer or employee thereof acted or failed to act . . . shall not be dismissed nor relief therein be 

denied on the ground that it is against the United States or that the United States is an 

indispensable party.” Id. Congress added this sentence to § 702 in 1976 with the “clear purpose 

to ‘elimina[te] the sovereign immunity defense in all equitable actions for specific relief against 

a Federal agency or officer acting in an official capacity.’” Trudeau, 456 F.3d at 186 (quoting 

Sea–Land Serv., Inc. v. Alaska Railroad, 659 F.2d 243, 244 (D.C. Cir. 1981)). The D.C. Circuit 

 

2

 It appears that the Fourth Circuit considers the lack of a discrete, final agency action in an APA 

claim to bear on a court’s subject matter jurisdiction. See City of New York v. U.S. Dep’t of Def., 

913 F.3d 423, 430, 432–33 (4th Cir. 2019) (concluding the court lacked subject matter 

jurisdiction over an APA claim because plaintiffs were not challenging a discrete agency action). 

Where the D.C. Circuit’s jurisprudence differs from another Circuit’s, this Court is bound to 

follow the D.C. Circuit. See, e.g., Perry-Anderson v. Howard Univ. Hosp., 192 F. Supp. 3d 136, 

148 (D.D.C. 2016). 
7 

has “repeatedly and expressly held in the broadest terms” that the waiver of sovereign immunity 

in the second sentence of § 702 “applies to any suit whether under the APA or not.” Perry 

Capital, 864 F.3d at 620 (internal citation and quotation marks omitted). Because § 702’s 

“waiver is not limited to APA cases,” “it applies regardless of whether the elements of an APA 

cause of action are satisfied.” Trudeau, 456 F.3d at 187.3 

C. Plaintiffs’ Second Amended Complaint 

The second sentence of APA § 702 provides a waiver of sovereign immunity for all of 

the claims that plaintiffs have brought in the Second Amended Complaint, which are all against a 

federal agency or officer and seek relief other than monetary damages. See 5 U.S.C. § 702. 

Given that the APA’s final, discrete agency action requirement bears on a plaintiff’s ability to 

sustain an APA claim, defendants should have raised their arguments in a Rule 12(b)(6) motion. 

See Reliable Automatic Sprinkler, 324 F.3d at 731; see also El Paso Natural Gas Co. v. United 

 

3

 Defendants’ Reply concedes that the APA’s final agency action requirement is an element of an 

APA cause of action and thus unnecessary to invoke § 702’s waiver of sovereign immunity, but 

argues that, in contrast, a discrete agency action as Norton described is necessary to invoke § 

702’s waiver. (Reply at 19–20.) This argument is baseless. Norton’s discrete agency action 

requirement is derived from the Supreme Court’s interpretation of 5 U.S.C. § 551(13), in which 

the APA defines “agency action.” See Norton, 542 U.S. at 61–62. The D.C. Circuit has rejected 

the idea that an “agency action” within the meaning of § 551(13) is required in order to invoke 

§ 702’s waiver of sovereign immunity. See, e.g., Trudeau, 456 F.3d at 187 (“[A]ttempt to 

restrict the waiver of sovereign immunity to actions challenging ‘agency action’ as technically 

defined in § 551(13) offends the plain meaning of the amendment” to § 702) (quoting 

Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525 (9th Cir. 1989)). Thus, the 

Supreme Court’s interpretation in Norton of what constitutes an “agency action” under 5 U.S.C. 

§ 551(13) for purposes of sustaining an APA claim is irrelevant to questions regarding the scope 

of the sovereign immunity waiver in the second sentence of § 702. Neither Norton nor Lujan 

discuss the issue of sovereign immunity or the second sentence of § 702. Instead, Norton and 

Lujan’s mention of § 702 is restricted to the first sentence of the section, which provides that a 

party bringing an APA claim must have “suffer[ed] legal wrong because of agency action” or 

been “adversely affected or aggrieved by agency action.” 5 U.S.C. § 702; see Norton, 542 U.S. 

at 61–62; Lujan, 497 U.S. 882–99. Lujan and Norton provide no guidance for determining the 

scope of the waiver of sovereign immunity in § 702’s second sentence. 
8 

States, 750 F.3d 863, 888 (D.C. Cir. 2014) (concluding that a plaintiff failed to state a claim 

because under the APA it could not rely on a broad programmatic attack); People for the Ethical 

Treatment of Animals v. U.S. Dep’t of Agric., 797 F.3d 1087, 1097–99 (D.C. Cir. 2015) (holding 

a plaintiff had failed to state a claim due to not satisfying Norton’s requirements). However, 

even a Rule 12(b)(6) motion would not have been successful, as plaintiffs’ Second Amended 

Complaint does not present a broad programmatic attack. 

Defendants concede that the order that plaintiff Calixto received discharging him from 

the Army Reserve was a “discrete and final agency action” that was “ripe for federal court 

review.” (Mot. at 3.) Plaintiffs have amended their complaint to add additional plaintiffs and 

putative class members, each of whom—according to the Second Amended Complaint—seek to 

challenge their discharge order, just as Calixto sought in the initial Complaint. (2d Am. Compl. 

¶ 137 (“All Plaintiffs and proposed class members in this action were the subjects of involuntary 

administrative discharge actions by Defendants.”).)4 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—which merely attempts to aggregate 

soldiers’ challenges to the discrete discharge orders that each soldier faced—represents a broad 

programmatic attack. The “aggregation of similar, discrete purported injuries—claims that many 

 

4

 Defendants may be able to raise factual disputes regarding whether each plaintiff has in fact 

been discharged. (See, e.g., Mot. at 6.) However, for purposes of Rule 12(b)(6)—which, as 

explained supra, is the proper lens through which the Court should assess defendants’ “broad 

programmatic attack” argument—the Court is compelled to accept the allegations in the Second 

Amended Complaint as true. See, e.g., Croixland Properties Ltd. P’ship v. Corcoran, 174 F.3d 

213, 215 (D.C. Cir. 1999). Even under the framework through which defendants advocate the 

Court assess their argument—as a Rule 12(b)(1) facial challenge to the Second Amended 

Complaint—the Court would be required to accept the plaintiffs’ allegations as true. (Mot. at 10 

(stating that “[t]his is a facial challenge” under Rule 12(b)(1) and thus “the district court must 

accept the well-pleaded allegations contained in the complaint as true”).) 
9 

people were injured in similar ways by the same type of agency action—” does not constitute “a 

broad programmatic attack.” Ramirez v. U.S. Immigration & Customs Enforcement, 310 F. 

Supp. 3d 7, 21 (D.D.C. 2018). 

III. JUSTICIABILITY OF PLAINTIFFS’ REQUEST FOR REINSTATEMENT 

In their Reply, defendants raise a new argument: that because one of the remedies that 

plaintiffs seek, reinstatement, is non-justiciable, plaintiffs’ claims should be dismissed. (Reply at 

20–22.)5 This argument is without merit.6 

Claims arguing that deficiencies in the process used to reach military personnel decisions 

violated the Constitution, statutes, or regulations are appropriate for judicial review. See Kreis, 

866 F.2d at 1511 (describing the distinction between justiciable claims that argue the military’s 

“decision making process was deficient” and non-justiciable claims that ask a court to review the 

substance of a military personnel decision for its correctness); see also Dilley v. Alexander, 603 

F.2d 914, 920 (D.C. Cir. 1979), decision clarified, 627 F.2d 407 (D.C. Cir. 1980) (“It is the duty 

of the federal courts to inquire whether an action of a military agency conforms to the law, or is 

instead arbitrary, capricious, or contrary to the statutes and regulations governing that agency.”). 

Plaintiffs’ Second Amended Complaint argues that the procedures by which plaintiffs were 

discharged were unlawful because the Army failed to comply with applicable law. Such a claim 

 

5

 It is generally improper for a party to raise new arguments in a reply brief, and “courts may 

disregard any such arguments.” Performance Contracting, Inc. v. Rapid Response Constr., Inc., 

267 F.R.D. 422, 425 (D.D.C. 2010). However, because this non-justiciability argument 

potentially touches upon the Court’s subject matter jurisdiction, the Court addresses it to make 

clear that the Court has satisfied itself regarding its own jurisdiction. See Kreis v. Sec’y of Air 

Force, 866 F.2d 1508, 1511–12 (D.C. Cir. 1989) (affirming in part a district court’s decision to 

dismiss an Air Force major’s non-justiciable claim regarding a promotion decision for lack of 

subject matter jurisdiction). 

6

 Because the Court can easily determine the baselessness of defendants’ new argument without 

the assistance of any sur-reply by plaintiffs, plaintiffs’ motion for leave to file a sur-reply (ECF 

No. 78) is DENIED. 
10 

is justiciable. 

Furthermore, the D.C. Circuit has already held that where servicemembers are discharged 

from the military via an unlawful process, reinstatement can be a form of judicially-ordered 

relief in appropriate cases. See Dilley, 627 F.2d at 415 (describing a “general rule requiring 

retroactive reinstatement for illegally discharged servicemen”). The Court need not at this time 

decide what relief plaintiffs would be eligible to receive if their claims are ultimately successful, 

as to do so would put the cart before the horse. But 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. 

CONCLUSION 

For the reasons stated above, the Court denies defendants’ motion to dismiss. A separate 

Order accompanies this Memorandum Opinion. 

 _______________________ 

 ELLEN S. HUVELLE 

 United States District Judge 

Date: May 16, 2019