Pro Bono Innovators 2023 Honoree Morgan, Lewis & Bockius

In our 2023 issue of Pro Bono Innovators, Bloomberg Law honors Morgan Lewis & Bockius for removing naturalization barriers for US soldiers. In key cases culminating in September 2022, the firm secured the citizenship rights for thousands of formerly non-citizen US Army soldiers and veterans based on their military service. The firm is also noted for securing a favorable ruling from the Army Board of Corrections of Military Records regarding a “line of duty” determination in the 1941 death of Private Albert King in an on-base killing found to be racially motivated by Northeastern University’s Civil Rights and Restorative Justice Clinic.

Your firm’s pro bono work included securing a victory in a string of federal court cases against the US government, including three class actions, to secure the citizenship rights of formerly non-citizen US Army soldiers and veterans based on their military service. You also obtained a favorable change in the “line of duty” determination for an African American soldier killed on base in a racially-motivated incident in Fort Benning, Georgia more than 80 years ago. How did your firm strategize on how to approach these matters?

Christopher Melendez, finance associate, on the Private Albert King matter: Morgan Lewis’s success in these veterans-related pro bono matters is largely due to the firm’s long-standing commitment to veterans’ issues and the unwavering support of the firm’s Veterans Lawyer Network. Through the Veterans Lawyer Network, an intra-firm affinity group composed of lawyers who are interested in advancing veterans’ issues—which includes many lawyers who are veterans themselves—Morgan Lewis is able to create agile, robust teams of lawyers who have a personal connection to the issues affecting our pro bono veteran clients.

Furthermore, the Veterans Lawyer Network is connected with various law school clinics, non-profit organizations, and other firms where attorneys are able to identify key cases and work with these partner organizations to identify and engage with potential pro bono clients.

In the case of Albert King, Matt Hawes, Chris Melendez, and Micah Jones were connected through the Veterans Lawyer Network following outreach by Northeastern University School of Law’s Civil Rights and Restorative Justice Clinic (CRRJ). Matt, Chris, and Micah are also veterans, having served in the US Navy, US Marine Corps, and US Army, respectively, before beginning their legal careers, and Matt and Chris both previously served as co-leaders of the Veterans Lawyer Network.

Through the firm’s partnership with CRRJ, Matt, Chris, and Micah were able to work with Private King’s first cousin, Ms. Helen Russell, and CRRJ to incorporate the necessary factual background within their petition to the Army Board of Corrections for Military Records (ABCMR). The case team was also able to combine their previous military experience with their legal advocacy in order to effectively navigate the ABCMR’s particularities in order to submit the successful petition.

Jennifer Wollenberg, white collar partner, on class actions on behalf of veterans and service members: We developed and changed our strategy in all three class actions as necessary based on the tactics of the defendant government agencies. While we originally approached the first class action with the hope that the government’s treatment of Military Accessions Vital to the National Interest (MAVNI) soldiers was unintentional and the result of differing government agencies not realizing how the confluence of their policies negatively impacted these soldiers, the team quickly had to shift gears to overcome government litigation maneuvers designed to preclude judicial review and prevent relief.

We persistently litigated against the government by bringing additional class actions, exposing and challenging the agencies’ implementation of new unlawful policies, and thwarting the government’s multiple attempts to prevent class certification and then to decertify the classes. Ultimately, our team secured complete victories in the first two class actions (Nio and Kirwa), including a permanent injunction and summary judgment against the DOD and the DHS, which resulted in the naturalization of more than 2,000 class members. Thereafter, we were able to convince the government that continued litigation of the third class action (Calixto) was not in its interest and negotiated a creative and unprecedented settlement that removed the last barriers to naturalization for hundreds of additional “MAVNIs” and fully secured U.S. citizenship for the thousands of soldiers and veterans previously harmed by the government’s behavior.

What were the most innovative aspects of two of your clients matters in your view? And who took the lead on driving innovation with the work?

Jennifer Wollenberg: In September 2022, we secured a victory in a string of federal court cases against the US government, including three class actions, on behalf of thousands of non-citizen US Army soldiers and veterans seeking to secure their lawful right to US citizenship based on their military service. We represented US Army enlistees through the MAVNI program. They had been recruited due to their essential language or medical skills and promised in exchange an expedited path to naturalization.

Our clients were victims of a concerted campaign by the US Department of Defense (DOD), the US Army, and Department of Homeland Security (DHS). Those actions delayed and ultimately denied them citizenship through unlawful policies and practices that left them and their families in immigration limbo and subject to removal (and, for some, persecution for having sworn their allegiance to the United States).

In the first cases, we secured complete victories, including a permanent injunction and summary judgment against DOD and DHS. This resulted in the naturalization of more than 2,000 class members. In another case, US Citizenship and Immigration Services (USCIS) ultimately capitulated and changed its policy in accordance with our litigation position.

In addition to this momentous relief for the soldiers and veterans, the Army, DOD, and DHS have paid more than $3 million in reimbursement for litigation fees and costs.

The three class action cases were Nio et al. v. US Department of Homeland Security et al.; Calixto v. United States Department of the Army et al.; and Kirwa et al. v. US Department of Defense et al.

The lawyers on this work were partners Jennifer Wollenberg and Douglas Baruch, Neaha Raol, former Morgan Lewis associate, and Kayla Kaplan, partner.

Christopher Melendez: In the Albert King matter, this work was referred to the firm by Northeastern University School of Law’s Civil Rights and Restorative Justice Project (CRRJ). CRRJ conducts research and supports policy initiatives on anti-civil-rights violence in the United States and other miscarriages of justice from the period 1930–1970. Through clinical courses taught at the law school, research, civil rights advocacy, legal services, and community engagement, affiliated scholars and students examine the relationship between race-based miscarriages of justice in US history and current pressing racial and criminal justice issues.

In October 2022, CRRJ launched the Burnham-Nobles Archive, a digital resource resulting from more than 20 years of research and investigation that is dedicated to identifying, classifying, and providing factual information and documentation about anti-Black killings in the mid-century South. Morgan Lewis was the first private law firm to partner with CRRJ on this endeavor in 2020 and 2021 and contributed to the archive by investigating and documenting more than 100 racially motivated killings that took place in Texas and Florida between 1930 and 1970.

As the first partnership of its kind, the Morgan Lewis and CRRJ collaboration showcases a model in which potential cases can be identified by CRRJ and then brought to the attention of firms like Morgan Lewis. We continue work on a selection of cases where restorative justice measures may be feasible.

Tell us more about the impact of the matters on the local, national, and/or global level.

Jennifer Wollenberg: The United States has long served as a beacon of democracy. So much so that people have been willing to fight and die in return for the benefits afforded by its citizenship. It was important that the United States keep this promise of citizenship.

In these three cases, more than 2,000 men and women who pledged their allegiance to the United States and volunteered to make the ultimate sacrifice to protect it if necessary were finally rewarded for their service, either with naturalization or via a path to naturalization. Additionally, the firm is using funds secured by the win to finance a fellowship program with the American Immigration Lawyers Association and the American Immigration Council that will ensure the remaining class members become naturalized.

Christopher Melendez: In the King matter, the impact is profound on a national scale. Private King was one of dozens of Black military personnel believed to have been killed on or near military bases during the World War II era because of their race. The injustices manifested in these cases—that service members were unlawfully killed in the line of duty—was often compounded by investigations, inquiries, and court martials that gave the imprimatur of a fair process but in fact were intended to obscure or even conceal the facts.

The successful petition demonstrates the Army’s willingness to remedy a clear injustice 80 years after the fact, which will embolden others to seek remedies in other instances of racial injustice despite the extraordinary passage of time. It also will serve as a blueprint for how to successfully request the Army Board for Corrections of Military Record’s (ABCMR), or other similar arbitrators-of-fact, to review a historical case.

Why do you think your team ultimately achieved successful results in these matters?

Jennifer Wollenberg: Success was the product of relentless litigation pressure. In the most heavily litigated case—Nio v. DHS and DoD—we devoted more than 15,300 hours beginning in 2017. Thousands of additional hours were expended on related litigation [in the naturalization matter].

Christopher Melendez: [In the Albert King matter] the team was successful for three reasons: (1) CRRJ’s exceptional groundwork locating 80-year-old records and files that could serve as the factual foundation of the petition; (2) a zealous client committed to supporting the efforts of Morgan Lewis and CRRJ; and (3) our legal team’s unique understanding of the US military.

CRRJ had conducted the necessary research, and had assembled the comprehensive case file, for Private King. Working with genealogists and other historical experts, CRRJ was able to contact Private King’s next of kin, Ms. Helen Russell, who would be the required petitioner to the ABCMR.

Despite never having met her first cousin, Ms. Russell became invested in attempting to right the historical wrong in Private King’s military record that had occurred when he was found to not have died within the line of duty. She wanted the Army to correct its historical injustice and honor his memory.

The ABCMR required that a blood-relative be the petitioner for any case on behalf of a deceased soldier. Ms. Russell worked with both CRRJ and the firm, and ultimately signed the petition requesting that his death in the line of duty determination be changed.

Morgan Lewis specifically sought out veterans for this case. Their familiarity with the military allowed them to balance the petition in a way that respected its chain of command and ownership of the investigative process, while still explaining why the Army had issued a flawed and biased decision regarding Private King’s death.

What did you do to celebrate when these matters were resolved?

Christopher Melendez: Although Morgan Lewis, CRRJ, and Ms. Helen Russell are thrilled with the ABCMR’s decision, we do not yet consider this matter complete. Micah, Chris, and Matt are working with the Congressman Shri Thanedar (13th District of Michigan), the Department of the Army and representatives of Fort Moore (formerly known as Fort Benning, where Private King was killed) to erect a headstone at Private King’s gravesite near Fort Moore and provide Private King with the full military honors and a ceremony worthy of Private King’s legacy and emphasizes the importance of restorative justice. The ceremony is scheduled for March 24, 2024, the 83rd anniversary of Private King’s death.

Jennifer Wollenberg: The successful resolution of these matters for the MAVNIs (Military Accessions Vital to the National Interest) has been cause for thousands of celebrations, each one huge in its own right. The gift of US citizenship for each class member—through more than two thousand naturalization ceremonies—is what makes this the case of lifetime for us.

These soldiers had the courage to stand up for their rights and force the government to live up to its obligations. In these cases, we reversed unlawful government policies and removed the remaining barriers to MAVNI soldier naturalization. And, in the process, we recovered substantial attorneys’ fees that should deter future government misconduct and has enabled Morgan Lewis to establish and fund a military immigration attorney fellowship. But our true reward comes when our clients let us know they have become proud U.S. citizens.

We celebrate and embrace each of these victories, often accompanied by tears of relief because we acutely understand the hardship and risks that each soldier endured to get to that point, and we know that they are now well-positioned to thrive and move on with their lives. Messages like this one, received from a MAVNI soldier naturalized just before Thanksgiving 2023, capture the meaning of these victories better than any words we can convey:

“I am writing with an overflowing heart to express my deepest gratitude for the unwavering support, dedication, and relentless effort you provided. Your commitment to justice and your selfless dedication to assisting individuals in their pursuit of citizenship go beyond measure. The impact of your work extends far beyond legalities; it touches the lives of individuals, families, and communities, creating ripples of hope and empowerment.”