6/7/22, 3:45 PM Gmail - Wilson v.

Austin - Letters

Dale Saran <dalesaran@gmail.com>

Wilson v. Austin - Letters

Dale Saran <dalesaran@gmail.com> Tue, Jun 7, 2022 at 1:31 PM

To: "Avallone, Zachary A. (CIV)" <Zachary.A.Avallone@usdoj.gov>
Cc: "Lowenstein, Jody D. (CIV)" <Jody.D.Lowenstein@usdoj.gov>, "jward@garloward.com" <jward@garloward.com>,
Brandon Johnson <bcj@defendingtherepublic.org>

Zach -

Good day.

I'm afraid we're going to have to disagree right from the start because you're email makes assertions that I find
unsupported and unsupportable in the law and facts.
Specifically, you make a huge leap in one sentence.

"I am writing to inform you that I, along with my colleague Jody Lowenstein, represent the Defendants in that
action including the military officers currently commanding your clients."
 
Whoa. No. I find no support at all for that last part and significant evidence to suggest you are completely wrong.
Therefore, I haven't addressed your claims about communicating with "represented parties" because commanders did not
suddenly get transformed into your clients by virtue of the DoJ representing the DoD in the Wilson case. 

I offer this law review article on the issue of who exactly the DoJ's client is in agency litigation as a sample starting point.
As I think you'll agree, none of the theories covered include anything close to the novel assertion that DoJ attorneys
represent individual military commanders.  https://scholarship.law.wm.edu/cgi/viewcontent.cgi?
article=1736&context=wmlr

The Commander's SJA represents their interests and advises them under both military doctrine and statutory law (Title
10), passed by Congress pursuant to its plenary authority under the Constitution to "regulate the government and the
land and naval forces." This is a matter well-covered under Title 10 because military commanders exercise quasi-judicial
powers within the military justice system. This includes affirmative obligations to protect the rights of the servicemembers
under their charges, including (as just a few): impartiality in regards to selecting members of a court-martial (Art. 25,
UCMJ/10 USC §825), to preserve evidence (Art. 46/10 USC §846), to prohibit pretrial punishment of an accused, such as
"removing of badges" or "shunning" ceremonies (See Art. 13. and the infamous case of the "Peyote Platoon" in United
States v. Cruz.) And many others.

Your claim also runs into some concrete facts:

First, despite their vaccination status, some of my clients still hold Command positions. Your claim of "purported"
representation runs into my actual representation of those same people. Your representation of the DoD's interests
did not suddenly transform you into the attorneys for all GCMCAs throughout the Armed Forces. The DoD isn't a
corporation; I know a number of you have come from pharma and insurance defense to the DoJ, but you have
asserted that you represent individual Commanders like they're members of a company you represent with zero
authority for that claim and significant evidence against it.
Second, some of my clients were asked to provide just such a letter by their Commanders, presenting a
wonderful Catch-22 in your view in which counsel are asked for a letter from the Commander, so Commanders
have proof that their servicemember is actually a member in one of these lawsuits, and then the DoJ rushes in to
cry foul when the letter is provided in response. Joseph Heller would be proud.
Third, some of the plaintiffs in Wilson have separately (and before this suit even existed) retained me to be their
civilian defense counsel in their upcoming BOIs and Administrative Separation Boards over this same issue (I'm
one of a number of attorneys in this position, so in no way unique.) I presume that you're not suggesting that I, or
we, have to communicate through you and the DoJ in order to conduct matters on any of these Boards?
Because I'm not required to communicate with you, nor are you a party to those matters, and I am
affirmatively required to communicate directly to the Commander and the command as part of the
processes on behalf of my clients, or have my clients forfeit or waive rights.
Among those rights include the opportunity to obtain witnesses on behalf of my clients, some of whom will
undoubtedly be senior officers and commanders (now, under your novel reading these are all your "clients"

https://mail.google.com/mail/u/0/?ik=535700ca8c&view=pt&search=all&permmsgid=msg-a%3Ar4006347242701920769&simpl=msg-a%3Ar4006347242701920769 1/3
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and require prior coordination for me to interview them.) I would submit that unless you have some
authority for the proposition, your email is specious and not well-taken.   
Fourth, my letter was a pro forma request for preservation of evidence and explanation that the member is a
member of the class action lawsuit in Texas, as I noted above, in some cases specifically solicited by Commanders
in order to constitute proof that the servicemember is, in fact, in a federal lawsuit.
Fifth, military commanders and their legal representatives can and do handle such routine matters involving
outside counsel, and indeed, have statutory obligations to do so. Some of us who were around this issue the first
time (a la anthrax), still represented our clients, contacted commands for witnesses, held AdSep Boards, etc.
without DoJ's involvement. 
Sixth, all Special Court Martial Convening Authorities and above undergo training on dealing with attorneys
(they're taught specifically how to avoid lawyer jedi mind tricks).
They do this exact thing routinely in criminal justice matters under the Code and the Rules for Court-
Martial, and - in fact - 
It used to be considered gentlemanly for a CO to invite civilian defense counsel to their office for an
introduction prior to any formal negotiations that might later take place in the case.
Most of my clients have pending Religious Accommodation Requests. My letter to the commands did nothing more
than remind them of an existing statutory obligations they already have to maintain that paperwork. If we decide to
amend our complaint to include RFRA claims, are you suggesting that my letter to commands telling them to
maintain that paperwork is somehow prohibited? Or that we aren't allowed to investigate how RFRA claims are
being handled on behalf of my clients with an eye toward amending our complaint to include those RFRA claims?? 
Directly related matters may also require my participation on a client's behalf and require close communication
with the Command's. For example, some of my clients are senior and have character witnesses and others who are
commanders who might be called to testify on their behalf in BOI hearings. As noted above, some of these plaintiffs
may potentially face criminal charges under the UCMJ, Art. 92.
Even if you at the DoJ have decided upon a policy that there won't be courts-martial for vaccine refusers, a
Commander still has statutory obligations to the accused that are, for example, greater than even some
Constitutional protections, (see Article 31b, UCMJ v. Miranda v. Arizona, for example). 
I recognize that the FY22 NDAA prohibits anything less than a General (Under Honorable Conditions) or
Honorable discharge for simple vaccine refusal by Act of Congress, and given that a special court-martial has
no jurisdiction to award a GUHC, it makes the entire exercise largely pointless. 
On the other hand, 1st Lt Mark Bashaw has already been to a court-martial for charges related to his refusal
to take the vaccine.
And the DoJ's treatment of the RFRA rights of most of my clients and the entire armed services suggests the
DoJ sees it as de rigeur to ignore federal law and my clients statutory and Constitutional rights. Evidently
"support the troops" on the yellow magnets doesn't include giving legal weight to their rights in court.
This is not hypothetical, either. Commanders are conducting Non-Judicial Punishment (under Art. 15) against
some of these plaintiffs to justify Letters of Counseling, or Reprimand, etc. A military accused at Art. 15 has a right
to the advice of counsel on the decision to accept or reject NJP. The DoJ certainly cannot be a part of that process,
unless the DoJ is admitting to being involved in making recommendations on Commander's individual military
justice decisions. If so those conversations could very well constitute Unlawful Command Influence. I presume
privilege logs will exist for these conversations. Commanders have statutory obligations to be free from even the
perception of influence from outside sources because they act quasi-judicially in selecting the members of the court
to hear the accused's case, as noted above. 
To be blunt, there are parts of this process that you and your attorneys are specifically excluded from, unless you're
claiming the DoJ has a right to be involved in military justice decisions. And otherwise influencing the quasi-
judicial independent military justice decisions that Commander's have a statutory obligation to adhere to, including
obligations to protect the rights of people prior to any formal institution of active legal precedings.
Members of the military also have rights under Art. 138 (10 USC §938) to complain for a redress of wrongs by their
commanders or others senior in their chain of command. And a right to representation in the presentation of those
matters. I'm sure you're not saying that counsel can't help plaintiffs in the preparation of their claims under
statutory processes that are directly related to these issues, yes? 
There are also other collateral issues related to veterans benefits and claims that are contingent on some of these
administrative processes, such as payback of Transfer Election Benefits (TEB) under Post-9/11 GI Bill and service-
specific regulations. Frankly, it appears to me that military legal assistance and defense attorneys are being
systematically told to turn away people who have refused the shots and have legal assistance or other legal-related
questions. This - again - requires communication with the clients and their commands in order for military
members to avail themselves of rights that they have been afforded - and certainly earned, I might add, many of
them in combat.

All of the above strongly suggests that whatever relationship DoJ has to individual DoD Commanders, it isn't as an
attorney-client. In fact, some of the Commanders and members of the plaintiffs' command may well be witnesses to issues
that bear relevance in these proceedings, including what shorts were or weren't available and offered to the plaintiffs and
when.

https://mail.google.com/mail/u/0/?ik=535700ca8c&view=pt&search=all&permmsgid=msg-a%3Ar4006347242701920769&simpl=msg-a%3Ar4006347242701920769 2/3
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If you're suggesting that plaintiffs and their counsel can't investigate claims, obtain information, on behalf of their clients
then I would advise you to submit the motion for relief with the court. Unless you have some authority for this? I'm
certainly willing to hear it, but my 20 years as a judge advocate convinces me your claim that those commanders are your
"clients" is, if not completely incorrect, far short of a complete understanding of the issues at play.

Related to all of this, I'm aware of the Rule 23(d) Motion filed today in Coker (ECF Doc #91) that references recent
continued DoJ attempts to use plaintiffs' Commands to solicit statements against interest from those same Plaintiffs,
including their willingness to take so-called "BLA compliant shots" - and put it in writing at the behest of DoJ attorneys. It
seems we both have concerns with regard to attorneys communicating with folks on the other side of this issue. 

In an effort to be agreeable, I can assure you that:

I have no intention of communicating with any of the commanders of my clients beyond what I normally would do
in the context of a BOI, Court Martial, or AdSep Board. I can't commit to anything beyond that because I find your
claim that my clients' commanders are your clients specious and thus, the ethical rules regarding "speaking with
represented parties" doesn't apply.
Moreover, as I've pointed out, there are a myriad of related issues that require me to communicate with some
Commanders, and frankly some of which you are specifically supposed to excluded lest it constitute UCI under the
Code, that I'm surprised you would even make such a claim under these circumstances.

If you want to seek some kind of protective order under Rule 23(d), then please do so. I would invite you to look at what
was filed in Coker today (noted above) and what the standards are for a protective order where First Amendment rights, as
well as due process and other rights to obtain evidence under the Code and Constitution.

Perhaps we can all declare a truce and suitable framework and spend our time on the cases in federal court? But your
naked assertion that the commanders in the military are your clients and that I need your permission to contact them is
completely unsupported in law or fact. More specifically, I would love to hear exactly what about the letter is
"impermissible" communication.

Cheers,

Dale Saran

On Mon, Jun 6, 2022 at 5:25 PM Avallone, Zachary A. (CIV) <Zachary.A.Avallone@usdoj.gov> wrote:

[Quoted text hidden]

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