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
Before the Court is plaintiffs’ motion for class certification. (Pls.’ Mot. For Class
Certification and Appointment of Class Counsel, Sept. 19, 2017, ECF No. 12, (“Class Mot.”);
Supp. Mem. in Support of Pls.’ Class Mot., Nov. 3, 2017, ECF No. 34, (“Supp. Class Mot.”).)
The Court thoroughly considered the present class certification issues when it provisionally
certified the class in Kirwa, No. 17-cv-1793, 2017 WL 4862763 (D.D.C. Oct. 25, 2017), and
when it certified the class in the related Nio case, Nio v. United States Dep’t of Homeland Sec.,
No. 17-cv-998, 2017 WL 4876276 (D.D.C. Oct. 27, 2017). In fact, “[d]efendants have decided
not to oppose Plaintiffs’ motion in this case because the Court granted a similar motion for class
certification in Nio . . . . The Government reserves its objections to class certification that it set
forth in the Nio litigation.” (Notice of Defs.’ Non-Opp. to Pls.’ Mot. for Class Cert., Nov. 28,
2017, ECF No. 40, at 1.)
The only remaining dispute between the parties regarding class certification is whether
the class should be defined as those MAVNI enlistees who have not received a completed Form
N-426 as October 25, 2017, or whether the class should be defined as those MAVNI enlistees
who have not received a completed Form N-426 as of the filing of this opinion. Consistent with
the definition the Court used to provisionally certify the class, the Court will define the 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) who 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.
The formal joint communication to the class members, which defendants have agreed to
distribute, shall not be disseminated until the Court’s resolution of the dispute between the
parties regarding language about the class members’ rights under the preliminary injunction.
(See Notice of Filing of Proposed Joint Communication to Class Members, Nov. 29, 2017, ECF
No. 43.) Having satisfied itself that plaintiffs have met the requirements of Federal Rule of Civil
Procedure 23, the Court will certify a class as further detailed in the Court’s accompanying
Order, ECF No. 48.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: December 1, 2017
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Kirwa v. United States Department of Defense
Combined Opinion