KIRWA et al v. UNITED STATES DEPARTMENT OF DEFENSE et al
Filing
93
MEMORANDUM OPINION AND ORDER denying 83 Motion to Clarify: See MEMORANDUM OPINION AND ORDER for details. Signed by Judge Ellen S. Huvelle on May 23, 2018. (lcesh1) Modified on 5/24/2018, to change document type to Opinion (gdf).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MAHLON KIRWA, et al.,
Plaintiffs,
v.
Civil Action No. 17-1793(ESH)
UNITED STATES DEPARTMENT OF
DEFENSE, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is defendants’ motion to clarify the Kirwa class certification order, ECF
No. 83. “[T]here is no Federal Rule of Civil Procedure specifically governing “motions for
clarification.” United States v. Philip Morris USA Inc., 793 F. Supp. 2d 164, 168 (D.D.C. 2011).
“The general purpose of a motion for clarification is to explain or clarify something ambiguous
or vague, not to alter or amend.” Id. (citation omitted). The Court will deny defendants’ motion
because there is nothing ambiguous or vague about the class definition.
The Court’s class certification order entered on December 1, 2017—granting plaintiffs’
unopposed motion for class certification—defines the Kirwa class as
all persons who
(1) have enlisted in the U.S. military through the Military Accessions Vital to the
National Interest (“MAVNI”) program prior to October 13, 2017,
(2) have served in the Selected Reserve of the Ready Reserve (“Selected
Reserve”), and
(3) have not received a completed and duly authenticated Form N-426.
(ECF No. 48; see also ECF No. 32 (provisionally certifying the same class for purposes of
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preliminary injunctive relief on October 27, 2017).) Similarly, the December 4, 2017 class
notice agreed to by the parties described class membership in the following manner:
You are a member of the class in this litigation if you meet the following criteria:
You are an enlistee in the Military Accessions Vital to the National Interest
(“MAVNI”) program;
You enlisted prior to October 13, 2017;
You have served in the Selected Reserve; and
You have not received a completed and signed Form N-426 from DOD.
(ECF No. 54-1.) Defendants have filed the instant motion because
At the time of class certification, Defendants understood the class to comprise
MAVNI enlistees in the Delayed Training Program (“DTP”), i.e., those enlistees
who had not yet entered initial entry training (“IET,” also known as basic combat
training or “BCT”) because their background investigations and military service
suitability determinations remained pending. As set forth below, Defendants have
identified two other groups of MAVNI affiliates that Defendants do not
understand to fall within the class as defined. These individuals include (1) former
MAVNI Soldiers who were discharged prior to October 13, 2017, and who may
not have received a signed Form N-426 prior to discharge; and (2) MAVNI
Soldiers who had already shipped to IET as of October 13, 2017, and who should
have received, but may not certainly have received, a signed N-426 shortly after
arriving at IET.
(Defs.’ Mot. to Clarify, ECF No. 83, at 1–2.)
“The Court denies plaintiff’s motion to ‘clarify’ because, first of all, the motion does not
actually indicate that there was anything unclear about the Order.” Comm. on Oversight & Gov’t
Reform v. Holder, No. 12-cv-1332, 2014 U.S. Dist. LEXIS 199455 at *2 (D.D.C. Sept. 9, 2014).
That a MAVNI was discharged prior to October 13, 2017, or that a MAVNI had shipped to IET
before October 13, 2017, would not automatically exclude that enlistee from falling within the
class definition of a (1) MAVNI enlistee who had enlisted prior to October 13, 2017, (2) served
in the Selected Reserve, and (3) not received a completed and duly authenticated Form N-426.
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Despite acknowledging that the two groups of MAVNI enlistees defendants now seek to
exclude fall within the Court’s current class definition, defendants suggest that the Court’s
motivation and concern for certifying the class did not extend to these two groups. (Defs.’ Mot.
to Clarify, ECF No. 83, at 4–5.) This argument fails for multiple reasons. First, the plain
language of the Court’s order governs over any implicit intent defendants seek to divine from the
Court’s opinion. Second, in both this case and the related Nio case, the Court and the parties
have been operating under the assumption that Kirwa class members could move through
military processes differently depending on individualized circumstances, but what made them
Kirwa class members was past honorable service and the lack of a completed Form N-426.1
Defendants themselves admit in their reply that they understand the Court’s preliminary
injunction order “to require Army officials to render honorable service determinations for any
requesting MAVNI Soldiers who have served in the Selected Reserve of the Ready Reserve,
regardless of these Soldiers’ current status.” (ECF No. 89, at 2.) What appears to be motivating
defendants’ motion is a concern that defendants will face challenges in identifying and reporting
on discharged MAVNIs or MAVNIs who have gone to IET without an N-426. (Id.) But the fact
that defendants have to expend resources to identify and track class members is not a reason to
exclude class members who clearly fall within the definition of class. See Philip Morris USA
Inc., 793 F. Supp. 2d at 168 (“It is significant that Defendants fail to identify anywhere in their
Motion which provisions of [the challenged order] are ‘ambiguous’ or ‘vague.’ Rather what
Defendant seek is to add new language to [the challenged order] containing new declarations of
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Indeed the class definition in the related Nio action largely parallels the Kirwa definition except
for the fact that Kirwa class members do not have an N-426. Defendants’ counsel and counsel in
the related Nio action have treated the subclasses they now seek to exclude as part of the class on
multiple occasions. (See, e.g., Pls.’ Opp. to Defs.’ Mot. to Clarify, ECF No. 86, at 4–7.)
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law.”). This case is before a magistrate judge for case-management purposes and the parties
should seek a joint resolution of issues regarding class administration if defendants are
experiencing administrative problems tracking and reporting on the class.2 Granting defendants’
motion would wrongly exclude class members who fall within the current and unambiguous
class definition. For these reasons—and the additional reasons aptly explained in plaintiffs’
opposition to defendants’ motion (ECF No. 86)—defendants’ motion to clarify the Kirwa class
certification order is DENIED.
SO ORDERED.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: May 23, 2018
2
If plaintiffs know of MAVNI enlistees who are unable to obtain N-426s and fall within the
definition of the class, then they should inform defendants directly. It may also be true that
defendants will be unable to identify discharged MAVNIs and provide contact information to
plaintiffs’ counsel for these MAVNIs. For these and any other administrative disputes, the
parties should use their best efforts to reach resolution before going to the magistrate judge. As
the Court has reminded the parties in this action and in the related Nio action, filing multiple
motions after every individualized disagreement in the case is the most judicially inefficient way
to move towards resolution.
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