ORDER

THOMAS S. ZILLY, District Judge.

THIS MATTER comes before the Court on Plaintiffs' motion for preliminary injunction, docket no. 78 (the "Motion"). The Motion presents the following question: Should the Department of Defense ("Defendant") be required to treat non-U.S. citizens recruited through the Military Accessions Vital to National Interest ("MAVNI") program the same way it treats all other U.S. citizen soldiers when issuing interim security clearances? For the reasons stated on the record during oral argument on March 21, 2018, see docket no. 114, the Court answered this question in the affirmative and GRANTED the Motion. This Order further explains those reasons.

Background

A. The MAVNI program recruits highly trained individuals pursuing professional careers to serve the military in specialized roles.

The Plaintiffs in this lawsuit are skilled professionals who abandoned educational and professional aspirations as civilians to enlist in the U.S. Army through the MAVNI program. Authorized in 2008, the MAVNI program expanded military recruiting to non-U.S. citizens who: (1) are fully licensed health care professionals in critically short specialties; or (2) speak one of 44 strategic languages. See December 2014 Enlisted MAVNI Information Paper, docket no. 63-2, at 1. "The language portion of MAVNI recruits highly qualified Soldiers to provide broadened language and cultural diversity to the force." Id. Through the MAVNI program, the Army recruited Plaintiffs from their citizen careers to serve in these specialized roles.

The military achieved its objective of recruiting a diverse group of skilled professionals with sought-after specialties. Plaintiff Amandeep Singh, for example, is a native of India who came to the United States to attend a university. Declaration of Amandeep Singh, docket no. 112-1 ("Singh Declaration"), at ¶ 2. He graduated from Texas Tech University with a degree in electrical/electronic engineering and, prior to enlisting in the Army, worked as an engineer in the wireless and radio frequency fields for such companies as Blackberry, Ltd., Microsoft Corporation, and Honeywell International, Inc. Id. at ¶ 3. With nearly a decade of professional experience, Mr. Singh enlisted in the U.S. Army Reserve on July 23, 2015, through the MAVNI program. Id. at ¶ 4.

Plaintiff Qi "Eva" Xiong is another highly qualified MAVNI recruit. Ms. Xiong is a native of China who received a Doctor of Dental Surgery from the University of Colorado. Declaration of Qi "Eva" Xiong, docket no. 105-2 ("Xiong Declaration"), at ¶ 2. Since becoming a licensed board certified dentist, she has worked as a dentist in both Illinois and Missouri. Id. Ms. Xiong enlisted in the U.S. Army Reserve on November 10, 2015, to serve as a dentist through the MAVNI program. Id. at ¶¶ 3-4. Despite enlisting as a dentist, Xiong has not been allowed to practice dentistry with the Army because she has not received a security clearance. Id.

Valdeta Mehanja is a native of Kosovo who lived in extreme poverty before fleeing to Germany as a child. Declaration of Valdeta Mehanja, docket no. 73-1 ("Mehanja Declaration"), at ¶ 3. After finishing high school, Mehanja worked for several contractors in the IT function, obtained various IT certifications, and became experienced with "ground-to-air and aircraft-to-aircraft communications. . . ." Mehanja Declaration at ¶¶ 4-5. Using the money she had saved, she paid her way through Embry Riddle University where she earned a degree in Aeronautical Science. Id. at ¶ 6. She received a series of ratings and licenses while at Embry Riddle and began working as a flight instructor during her third year. Id. at ¶¶ 7-8. Among other honors and accolades, Mehanja was selected by Embry Riddle "to serve as Pilot-in-Command of the school's entry in the Women's Air Race Classic, a four-day transcontinental flight competition." Id. at ¶ 8. She has logged approximately 2,000 hours of flight time. Id.

Mehanja enlisted in the Army through the MAVNI program on February 27, 2015. During Basic Combat Training, she graduated with the highest female Army Physical Test score in her platoon. Id. at ¶ 11. She finished Advanced Individual Training as a UH-60 Blackhawk repairer with a 97% GPA and honors from the Aviation Logistics School. Id. Her Battalion Commander stated that "[s]he is without a doubt one of the most competent, caring, and professional leaders I have worked with in 22 years of service." Id. at ¶ 17.

Despite her qualifications, she too was told that she was not eligible to obtain a security clearance and proceed with the necessary training and education to become a Warrant Officer—the position she had hoped to attain when she enlisted. Id. at ¶¶ 18, 29. Her goal is to become a Blackhawk Helicopter pilot. Id. at ¶ 12. Prior to initiating this lawsuit and filing the Motion, Mehanja was unable to fly for the Army because she had been denied a security clearance. Id. at ¶ 29; see also Declaration of Neil T. O'Donnell, docket no. 90-3 ("O'Donnell Declaration"), at ¶ 8 (as of February 2, 2018, "Valdeta Mehanja has not received either a final or an interim security clearance.").

Like Mr. Singh, Ms. Xiong, and Ms. Mehanja, the other Plaintiffs in this lawsuit enlisted in the Army, became naturalized citizens, and serve the United States by using their specialized skills. Like all other soldiers serving in the Army, the MAVNI soldiers must oftentimes complete additional specialized schooling—such as officer command school or Warrant Officer school—before Defendant promotes them to their desired roles. See, e.g., Singh Declaration, at ¶¶ 6-7; Xiong Declaration, at ¶ 6; Mehanja Declaration, at ¶ 29.

To participate in these programs, MAVNI soldiers must obtain a security clearance or "interim security clearance." See, e.g., id. Sometimes Defendant enforces this requirement before allowing the soldiers to enroll. Other times, MAVNI soldiers have been permitted to attend OCS, complete all necessary coursework, but have then been designated "security holdovers" pending a security clearance determination. See, e.g., Declaration of Yang Zhidong, docket no.105-6 ("Zhidong Declaration"),1 at ¶¶ 5-6. Even though these soldiers have completed OCS, they have been relegated to various administrative roles pending their security clearance determinations. For example, Mr. Zhidong—who holds a Master's Degree in International Economics from Johns Hopkins—is an administrative assistant to an infantry battalion chaplain, where he performs routine tasks such as planning events, logistics, and travel. Id. at ¶ 6.

Regardless of when Defendant requires a MAVNI soldier to obtain an interim security clearance, the record shows that these interim security clearances are necessary for MAVNI soldiers to progress in rank and serve in the specialized roles the Army recruited them for.

B. Plaintiffs challenge their inability to receive interim security clearances on the same terms, conditions, and criteria as all other U.S. citizen soldiers.

Since the program's inception, Defendant has subjected soldiers enlisted through the MAVNI program to various counter intelligence policies designed to detect and assess potential threats to national security.2 These policies have delayed or outright prevented MAVNI soldiers from obtaining security clearances which, in turn, has precluded these soldiers from advancing their military careers and serving in their areas of expertise.

Plaintiffs contest the constitutionality of these counter intelligence policies, which Defendant does not impose on other soldiers who did not enlist through the MAVNI program. Plaintiffs' Third Amended Complaint, docket no. 63 (the "Complaint"), specifically challenges these policies and asserts a single claim for declaratory and injunctive relief "prohibiting Defendant from engaging in actions that discriminate against naturalized U.S citizen MAVNI soldiers in violation of Plaintiffs' . . . equal protection rights as guaranteed by the Due Process clause of the Fifth Amendment of the U.S. Constitution." Id. at ¶¶ 289-90.

Plaintiffs' Motion requests a preliminary injunction prohibiting Defendant "from enforcing a blanket rule precluding naturalized U.S. citizens in the Military Accessions Vital to National Interest (MAVNI) program from obtaining interim security clearances." Motion at 1. Defendant originated the policy at issue in a September 30, 2016, memorandum entitled Military Accessions Vital to the National Interest Pilot Program Extension." Sept. 30, 2016, Memorandum from Peter Levine, docket no. 63-3 (the "Sept. 30, 2016, Memo"). The Sept. 30, 2016, Memo precluded MAVNI recruits from being considered for interim security clearances until he or she had completed a first enlistment—a limitation Defendant does not impose on other soldiers. Id. at 7 ("Security Clearance Eligibility Requirements"); Motion at 4.3

C. Defendant's repeated attempts to revoke the challenged policy.

The thrust of Defendant's opposition to the Motion is that the challenged policy has since been revoked and, accordingly, Plaintiffs cannot satisfy the factors necessary for a preliminary injunction. See, e.g., Defendant's Opposition to Plaintiffs' Motion for Preliminary Injunction, docket no. 79, at 5-9. Similar to the approach it took in opposing Plaintiffs' first request for emergency relief, Defendant states that it withdrew this challenged policy on June 21, 2017, by issuing a memorandum declaring that MAVNI soldiers "may be considered for a security clearance under the same terms, conditions, and criteria as any other U.S. citizen." See Declaration of Christopher P. Arendt, docket no. 50, ¶ 4, Exhibit 1 (June 21, 2017, Memorandum from A.M. Kurta ("Kurta Memo")).4

Defendant further argues that it has circulated subsequent guidance clarifying any remaining confusion as to whether MAVNI soldiers are eligible for interim security clearances. See, e.g., Defendant's Supplemental Brief in Opposition to Plaintiffs' Motion for Preliminary Injunction, docket no. 103, at 1-2, 4-5.5 Defendant therefore argues that a preliminary injunction enjoining the challenged policy is unnecessary because the policy no longer exists, either on its face or as applied.6

In support of its position, Defendant also points to various instances in which MAVNI soldiers have already received interim security clearances. See, e.g., January 22, 2018, Memorandum from Michael F. Randazzo, docket no. 90-6; Declaration of Mary Dandridge, docket no. 104 ("Dandridge Declaration") at ¶ 2; February 9, 2018, Memorandum from Mary Dandridge, docket no. 104; see also O'Donnell Declaration, at ¶ 6. Defendant argues that these soldiers would not have received interim security clearances if the challenged policy was still in place.7

D. Plaintiffs provide evidence that Defendant is still applying the challenged policy in practice which has caused setbacks to their careers.

Notwithstanding Defendant's argument that the challenged policy is no longer in place, other MAVNI soldiers have still not received interim clearances and have submitted evidence that they have recently been subjected to stricter screening standards than other, non-MAVNI soldiers. See Xiong Declaration, at ¶ 7 (suggesting Defendant is requiring a second CI interview); Singh Declaration, at ¶¶ 9-10 (stating that he was denied an interim security clearance on March 5, 2018, as "I am still not eligible for an interim clearance because I am a MAVNI.").

Regardless of whether their interim security clearance requests were ultimately granted, the delays experienced by the MAVNI soldiers in securing their clearance determinations have caused significant setbacks to their careers. See Xiong Declaration, at ¶ 9 ("I enlisted in the Army through the MAVNI program going on two and a half years ago. [Defendant's] failure to issue me a clearance is preventing me from providing the professional dental services the Army recruited me to provide in the first place; wasting my time, skills and talents; [and] derailing my military career. . . ."); Declaration of "Patrick" Dongwoo Kim, docket no. 105-5 ("Kim Declaration")8 ("I was supposed to deploy with my United to the 595 Brigade in Kuwait on March 9, 2018. However, I was told on February 15, 2018 that I cannot get a clearance because I am a MAVNI soldier in my first term of enlistment and that I cannot deploy without a security clearance. . . . Not deploying will adversely affect my military career, prevent me from serving my country, and substantially and adversely affect my pay."); Zhidong Declaration, at ¶¶ 7-8. ("I inquired about receiving an interim clearance as many other officer candidates in my class were commissioned with only an interim clearance. In late January or early February 2018, I was orally told by phone . . . that I am not eligible for an interim clearance because I am a MAVNI. . . . My lack of a security clearance and my resulting inability to commission as an officer is directly harming my career; preventing me from performing the responsibilities for the Army that I was trained for at OCS; underutilizing my skills and talents and willingness to work hard; and dramatically reducing my pay."); Singh Declaration, at ¶ 12 ("I also recently requested an interim clearance but I was told that I am ineligible for an interim clearance. Obviously, my promotion to officer would allow me to better use my talents and education to benefit the Army; would advance my military career; and would substantially increase my earnings.").

Valdeta Mehanja further describes the consequences of these setbacks as follows:

Through the Motion, Plaintiffs seek the Court's help in remedying these impediments. The Motion seeks to require Defendant to grant MAVNI soldiers interim security clearances on the same terms, conditions, and criteria as all other soldiers—so that they have an equal opportunity to advance in their military careers in the same way as all non-MAVNI soldiers.

Discussion

To succeed on a motion for preliminary injunctive relief, plaintiff bears the burden of "establish[ing] that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In the Ninth Circuit, these elements are balanced so that "a preliminary injunction could issue where the likelihood of success is such that `serious questions going to the merits were raised and the balance of hardships tips sharply in [plaintiff's] favor.'" Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (alteration in original) (quoting Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003)).

The Court is satisfied that Plaintiffs are likely to succeed on the merits of their equal protection claim. Defendant's position that the interim security policy no longer exists is contrary to the evidence before the Court and the procedural history of this case. Notwithstanding Defendant's issuance of the Kurta Memo and follow-on guidance purporting to revoke the challenged policy, Plaintiffs have presented evidence demonstrating that, as recently as March 8, 2018, MAVNI soldiers have still been unable to advance in their military careers because they cannot obtain interim security clearances under the same terms, conditions, or criteria as non-MAVNI soldiers.

This evidence establishes that, even though Defendant may have attempted to revoke the challenged policy, individual decision makers responsible for determining interim security requests are still failing to consider requests from MAVNI soldiers under the same terms, conditions, and criteria as non-MAVNI soldiers. Moreover, the record before the Court shows a pattern in which Defendant purports to modify or revoke a challenged policy but, subsequent to that modification or revocation, officials continue to deny MAVNI soldiers interim clearances pursuant to the challenged policy. That Defendant continues to treat MAVNI soldiers differently than all other soldiers seeking interim security clearances—even though the MAVNI soldiers are otherwise qualified to receive these clearances—is enough to demonstrate that Plaintiffs are likely to succeed on the merits for purposes of the instant Motion. Ariz. Dream Act Coalition v. Brewer, 757 F.3d 1053, 1063-65 (9th Cir. 2014) ("Plaintiffs may prevail on their equal protection claim by showing `that a class that is similarly situated has been treated disparately.'" (quoting Christian Gospel Church, Inc. v. City and Cnty. of San Francisco, 896 F.2d 1221, 1225 (9th Cir. 1990)).

The unequal treatment experienced by the MAVNI soldiers and their failure to receive interim security clearances on equal terms has caused, and will continue to cause, irreparable harm. Many of these MAVNI soldiers are highly educated and experienced professionals Defendant specifically recruited because of their specialties. Defendant continues to limit these soldiers' military careers by failing to process their security clearance requests in the same way as requests from non-MAVNI peers. Among other setbacks, this limitation has precluded MAVNI soldiers from performing in the roles they were recruited for, prevented them from advancing in their careers, spoiled the currency of their qualifications and training, and reduced the amount of pay they are eligible to receive.

MAVNI soldiers who enlisted in the Army will continue to suffer irreparable harm in the absence of a preliminary injunction enjoining Defendant from enforcing the challenged policy. See Arizona Dream Act Coal., 757 F.3d at 1068 ("Setbacks early in their careers are likely to haunt Plaintiffs for the rest of their lives."); Enyart v. Nat'l Conference of Bar Exam'rs, Inc., 630 F.3d 1153, 1165 (9th Cir. 2011) ("loss of opportunity to pursue [one's] chosen profession" constitutes irreparable harm).

The Court is further satisfied that serious questions going to the merits of this dispute have been raised and that the balance of the equities strongly favors a preliminary injunction. Defendant claims that it has already revoked the challenged policy. If true, Defendant will be little harmed, if at all, in requiring its personnel to recognize and adopt the revocation and consider interim security clearances from MAVNI soldier on the same terms and conditions as all other soldiers. The scope of this relief is therefore necessarily limited, as it will only apply to situations in which Defendant is still applying the challenged policy.

MAVNI soldiers still seeking interim clearances will benefit from an injunction by being considered for interim clearances under the same criteria imposed on all soldiers. Assuming these soldiers meet the remaining, legitimate criteria to receive an interim security clearance, they will be able to advance in their military careers and serve in the specialized roles they were recruited for. Plaintiffs have met their burden of demonstrating they are entitled to a preliminary injunction enjoining Defendant from applying the challenged policy.

Conclusion

Plaintiffs have demonstrated they are entitled to a preliminary injunction. MAVNI soldiers are still unable to receive interim security clearances under the same terms, conditions, and criteria Defendant applies to non-MAVNI soldiers.

NOW THEREFORE:

Defendant is prohibited from enforcing any rule, policy, or guidance memoranda preventing U.S. citizen MAVNI soldiers enlisted in the Army as a class from equal treatment in connection with their applications for interim security clearances. Defendant shall consider requests for interim security clearance eligibility for U.S. citizen MAVNI soldiers in the same manner as it would for any other soldier who is a U.S. citizen.

IT IS SO ORDERED.