ELLEN SEGAL HUVELLE, United States District Judge.
Plaintiffs are three non-citizens serving in the United States Army's Selected Reserve of the Ready Reserve ("Selected Reserve") who enlisted under the United States Department of Defense's Military Accessions Vital to the National Interest ("MAVNI") program. Each wants to apply for citizenship pursuant to 8 U.S.C. § 1440, which provides an expedited path to citizenship for soldiers who serve during specified periods of military hostilities. Each, however, has been unable to apply because the military has refused to give them a signed Form N-426, which is a form that certifies an applicant's qualifying military service and must be submitted to the United States Citizenship and Immigration Services ("USCIS") in order to apply for naturalization based on military service. Plaintiffs bring this action against the United States Department of Defense ("DOD") and Secretary James Mattis, claiming that the military's refusal to issue them N-426 forms is unlawful under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706.
Before the Court is plaintiffs' motion for preliminary injunctive relief, brought on behalf of themselves and similarly-situated MAVNI soldiers. For the reasons stated herein, the Court will provisionally certify a class and grant the motion for a preliminary injunction.
The issues in this case overlap with a related case before this Court, Nio v. United States Department of Homeland Security. See Nio v. United States Dep't of Homeland Sec., No. 17-cv-0998, 270 F.Supp.3d 49, 2017 WL 3917006 (D.D.C. Sept. 6, 2017). That case involves MAVNI enlistees who have already received a completed Form N-426, but have brought similar challenges to DOD's recent change in its N-426 policy. In addition, the Nio plaintiffs are challenging the Department of Homeland Security's ("DHS") and USCIS's decision to put their naturalization applications on hold pending DOD's completion of the enhanced security screening ("DHS/USCIS Security Screening Requirement") it now requires for MAVNI enlistees prior to initial entry training ("IET") or active-duty service. The parties concede that filings in both the instant suit and Nio bear on the preliminary injunction inquiry before the Court, and thus, the Court may rely on records in both cases.
Since at least the Civil War, special naturalization provisions have applied to non-citizens who serve in the United States military. See USCIS Policy Manual, Vol. 12, Part I, Ch. 3, § A. Currently, the requirements for naturalization based on military service are found in Section 328 and 329 of the Immigration and Nationality Act, as amended, 8 U.S.C. §§ 1101, et seq. Section 328, codified at 8 U.S.C. § 1439, applies during peacetime; Section 329, codified at 8 U.S.C. § 1440, applies during designated "periods of military hostilities." For present purposes, § 1440 is the only relevant statutory provision because on July 3, 2002, President George W. Bush signed an Executive Order declaring that a period of military hostilities had begun on September 11, 2001, and that Executive Order remains in effect as of today. See Exec. Order No. 13269, 67 Fed. Reg. 45, 287 (July 3, 2002).
Section 1440 applies to "[a]ny person who, while an alien or a noncitizen national
In relevant part, § 1440 provides that persons honorably serving in the Selected Reserve or in active-duty status "may be naturalized as provided in this section if... at the time of enlistment ... such person shall have been in the United States, ... whether or not he has been lawfully admitted to the United States for permanent residence." 8 U.S.C. § 1440(a). To apply for naturalization under § 1440 requires compliance with most of the standard requirements for naturalization, see 8 U.S.C. § 1427; 8 C.F.R. §§ 316.1-316.14, but the path to citizenship is eased in at least three ways: (1) service members may be naturalized "regardless of age"; (2) "no period of residence or specified period of physical presence within the United States or any State or district of the Service in the United States shall be required"; and (3) "no fee shall be charged or collected from the applicant for filing a petition for naturalization or for the issuance of a certificate of naturalization" granted under
"The executive department under which such person served shall determine whether persons have served honorably," and such service "shall be proved by a duly authenticated certification from the executive department under which the applicant served or is serving." 8 U.S.C. § 1440(a), (b)(3); 8 C.F.R. §§ 329.1, 329.4.
Although 8 U.S.C. § 1440 applies to persons serving in the military's Selected Reserve or in an active-duty status, the statute is part of the Immigration and Nationality Act and it is administered by DHS and USCIS. To determine if an applicant is eligible for naturalization pursuant to § 1440, USCIS requires any such applicant to submit, along with their application for naturalization (Form N-400), a Form N-426 that certifies their qualifying military service. See 8 C.F.R. § 329.4; USCIS Policy Manual, Vol. 12, Part I, Ch. 5, § A ("The Request for Certification of Military or Naval Service confirms whether the applicant served honorably in an active duty status or in the Selected Reserve of the Ready Reserve."). The N-426 form in effect during the relevant time period includes the following direction:
(Pls.' Mot. for a Preliminary Injunction ("PI Mot.") Ex. 3, Sept. 19, 2017, ECF No. 11.)
A "certifying official" must then complete the second part of the form, indicating, by checking either "Yes" or "No," "whether the requestor served honorably or is currently serving honorably for each period of military service the requestor served." (PI Mot. Ex. 3.) If the answer is "No," the certifying official is directed to provide details in the "Remarks" section, specifically to "[p]rovide any
Until very recently, DOD had no official guidance that applied to the execution of N-426s. (10/18/2017 Tr. at 16-17, 24, 45, 66.) However, since at least 2005 and through April 2017, the United States Army Human Resources Command published a document entitled "The Soldier's Guide to Citizenship Application," which "explains the procedures for Soldiers to apply for citizenship," noting that "[t]he goal is to streamline and expedite the handling of their applications." (Pls.' Reply re PI Mot., ECF No. 22 ("PI Reply"), Ex. 7, at 4 (2017 version); see also id. Ex. 8 (2011 version); id. Ex. 9 (2005 version).) In that publication, it states:
(PI Reply Ex. 7, at 11; see also id. Ex. 8, at 11; id. Ex. 9, at 10.) The Army publication also provides that the N-426 service data can be verified and the form signed by someone in a Military Personnel Division or Military Personnel Offices. (PI Reply Ex. 7, at 11; see also id. Ex. 8, at 11; id. Ex. 9, at 10; PI Mot. Ex. 5 (USCIS letter dated March 31, 2017, to plaintiff advising him that he had not properly signed his N-426, and that once he did that, he should "[t]ake the N-426 to your personnel office, administrative unit, command, or human resources department where your service record can be verified and certified").) The Navy has a similar publication, entitled "U.S. Navy Guide to
The unrebutted evidence of DOD's past practice in certifying N-426s demonstrates that the honorable service determination consisted of a cursory records check to determine if the enlistee (1) was in the active duty or the Selected Reserves, (2) had valid dates of service, and (3) had no immediately apparent past derogatory information in his service record. Thus, DOD's past practice was to determine whether a person had served honorably based on an examination of his service record at the time the N-426 was submitted for execution. This conclusion was further confirmed by the information relevant to the length of time the certification process took for seven of the named Nio plaintiffs, each of whom had their N-426s certified within one day after they submitted the forms. (Nio, PI Mot., June 28, 2017, ECF No. 17, Exs. 26-32.)
In August 2009, USCIS, in conjunction with the Army, adopted a "Naturalization at Basic Training Initiative" in order to provide expedited processing of naturalization applications for non-citizen enlistees once they arrived at IET.
In 2008, pursuant to 10 U.S.C. § 504(b)(2), the Secretary of Defense authorized the creation of the MAVNI Pilot Program, which allowed non-citizens who were not lawful permanent residents to enlist in the United States military if it was determined that enlistment would be vital to the national interest because they were "health care professionals" in certain specialties or possessed "critical foreign language skills." (1st Miller Decl. ¶ 4; Secretary of Defense Memorandum dated Nov. 25, 2008 (cited in PI Mot. Ex. 6).) The program was reauthorized several times, most recently in September 2016, when it was extended through September 30, 2017. (See Nio, PI Mot. Ex. 10, ECF No. 17-10 ("9/30/2016 DOD Memorandum").)
Over the years of the MAVNI program, DOD increased the security screening requirements for MAVNI enlistees. (1st Miller Decl. ¶¶ 12-17.)
If the investigation reveals unmitigable derogatory information — such as "undue foreign influence" — the military suitability determination will be unfavorable and DOD can discharge the MAVNI enlistee under "other than honorable conditions," such as an "uncharacterized" discharge. (Nio, Tr. of PI Hr'g (Part II), Aug. 23, 2017, ECF No. 37 ("Nio, 8/23/2017 Tr.") at 37-38.); PI Mot. Ex. 9 ("May 2017 Action Memo"); 1st Miller Decl. ¶ 14 (negative outcome "could result in an applicant's administrative discharge from the Armed Forces under any administrative characterization of service, including `other than honorable' conditions"); 2d Miller Decl. ¶ A5; Nio, Defs.' Resp. to the Court's Aug. 24, 2017 Order Exs. A & B, Aug. 30, 2017, ECF No. 39.) An uncharacterized discharge also means that the individual would no longer be eligible to become a naturalized citizen. (Nio, 8/23/2017 Tr. at 24-25.)
The Army Reserve began implementing the MAVNI Program in 2009 due to "critical
MAVNIs in the Army Reserve's Selected Reserve are eligible for naturalization under § 1440. Indeed, the standard enlistment contract for a MAVNI enlistee in the Army Reserve's Selected Reserve includes an addendum, signed by the enlistee and a DOD official, which states: "[i]n exchange for being permitted to enlist in the Army, I agree to apply for U.S. citizenship as soon as the Army has certified my honorable service." (See, e.g., Defs.' Notice of Supp. Filing Exs. 1-3, attach. 1, at 3, Oct. 19, 2017, ECF No. 25-1 (copy of plaintiff Kirwa's enlistment contract).) But, their path to citizenship has been dramatically prolonged by DOD's enhanced security screening requirements.
From the inception of the MAVNI Program until September 30, 2016, what typically happened to a MAVNI in the Army's Selected Reserve is that the enlistee would sign the enlistment contract and go to IET in approximately 180 days. (10/18/2017 Tr. at 32, 108; see also MAVNI Information Paper ("you will apply for citizenship during Basic Combat Training (BCT). The Army, along with USCIS has implemented expedited citizenship processing for all non-citizens at each of the Army's BCT. DO NOT MAIL YOUR CITIZENSHIP PACKET BEFORE YOU SHIP TO BCT. All documentation including the N-426 will be signed at BCT. Your recruiter or Reserve commander does not need to sign or mail anything for you.") If MAVNIs did not have certified N-426s before they entered IET, they would receive one and apply for citizenship at IET. (10/18/2017 Tr. at 22-23.) IET would be completed in ten to twelve weeks, and by the end of IET, USCIS would have adjudicated their N-400 naturalization applications, and the MAVNIs would be granted citizenship. (1st Miller Decl. ¶ 9; 1st Renaud Decl. ¶ 13.)
After the 9/30/2016 DOD Memorandum, MAVNIs in the DTP began to experience significant delays in being sent to IET. (10/18/2017 Tr. at 32 (statement by DOD counsel: "I think it's pretty clear that the process as it was originally contemplated was intended to move more quickly than what it currently does.").) In fact, the enhanced screenings were taking so long that MAVNIs were starting to be discharged because they had exceeded the allowable time of two years in the DTP. (See, e.g., Nio, Pls.' Supp. Reply Ex. 2, Aug. 18, 2017, ECF No. 33-2.) On July 27, 2017, in an attempt to ameliorate this problem, the then-Acting Secretary of the Army issued a memorandum that waived the requirement to attend IET within 24 months of accession and extended the period to 36 months for the 2,513 soldiers then in the DTP on the ground that the "waiver is necessary to accommodate the additional security screening." (Nio, Defs.' Notice of Supp. Documentation, ECF No. 26.)
Not having any idea how long it might take to get to IET, at least 500 MAVNIs in the DTP sought and received signed N-426s before starting IET and submitted
However, starting sometime in the spring of 2017, the Army began to change its practice and began to decline requests for N-426s to MAVNIs still in the DTP on the ground that they were not serving on "active duty." (See, e.g., PI Mot. Ex. 13 (email to MAVNIs from Army Reserve administrator stating "I have found out that we cannot certify [an N-426] unless you are on Active Duty").) On July 7, 2017, DOD told this Court that it was "undertaking a review of ... the standards for certifying approximately 400 existing N-426s" (the Nio plaintiffs), and that it was "not certifying any new MAVNI N-426s" (the Kirwa plaintiffs) because it "viewed IET [active duty] as a necessary precondition of an honorable service determination." (1st Miller Decl. ¶¶ 19-20; 2d Miller Decl. ¶ A4.) On August 17, 2017, the Army formerly ordered that no more N-426s were to be issued while its review was ongoing unless the person had served on "active duty." (PI Mot. Ex. 10 (Aug. 17, 2017 Department of the Army Memorandum) ("Effective immediately, I withhold authority to certify the honorable service (N-426) of Soldiers who have not yet attended Initial Entry Training.").) That left MAVNIs who were currently drilling in the DTP — approximately 2000 — unable to receive an N-426 and, as a consequence, they are ineligible to apply for naturalization.
On October 13, 2017, DOD issued its "new" and "first" "formal policy guidance" pertaining to the "certification of honorable service of members of the Selected Reserve of the Ready Reserve ... for purposes of naturalization" under § 1440 in the form of a memorandum from the Office of the Secretary of Defense to the Secretaries of the Military Departments. (Defs.' Opp. to PI Mot., ECF No. 20 ("PI Opp.") Ex. 3 ("10/13/2017 Guidance"); 10/18/2017 Tr. at 17.) Section II of the memorandum applies to persons who enlisted prior October 13, 2017, who do not already have an N-426 (the Kirwa plaintiffs). It states the following:
(10/13/2017 Guidance at 2.)
Plaintiffs each enlisted in the Army Reserve's Selected Reserve of the Ready Reserve via the MAVNI Program before September 30, 2016. (Defs.' Notice of Supp. Filing Exs. 1-3, Oct. 19, 2017, ECF No. 25 (Enlistment Ks).) Plaintiff Kirwa enlisted on December 7, 2015 (ECF No. 25-1); plaintiff Meenhallimath enlisted on February 4, 2016 (ECF No. 25-2); and plaintiff Viswanathan enlisted on June 24, 2016 (ECF No. 25-3). Each signed a contract in which they agreed to apply for citizenship "as soon as the Army has certified my honorable service." (See, e.g., ECF No. 25-1.) None has completed the enhanced screening required after September 30, 2016, so none has been assigned a date for their IET.
Plaintiffs' inability to obtain signed N-426s means that they cannot apply for naturalization, which in turn deprives them of any benefit from ICE's policy of not instituting removal proceedings against MAVNIs in the DTP with pending naturalization applications. In addition, DOD's
Plaintiffs filed a complaint on September 1, 2017, challenging DOD's refusal to complete their N-426 Forms and certify their honorable service in the Selected Reserve as unlawfully imposing an "active-duty" requirement in violation of § 1440. 8 U.S.C. § 1440(a) (non-citizen is eligible for citizenship if he "has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status" (emphasis added)). Plaintiffs bring substantive claims under the APA, 5 U.S.C. § 706(1) and (2) (Count III), and for mandamus, 28 U.S.C. § 1361 (Count IV).
On September 19, 2017, plaintiffs moved for a preliminary injunction on their own behalf and on behalf of similarly-situated MAVNIs. (PI Mot. at 1.) Simultaneously, they filed a motion for class certification, seeking to certify a class that would include: (1) MAVNI enlistees, (2) who have served in the Selected Reserve, and (3) who have not received a completed Form N-426. (Pls.' Mot. for Class Certification, Sept. 19, 2017, ECF No. 12.) For purposes of the preliminary injunction motion, plaintiffs seek provisional certification of the class.
During a conference call on September 25, 2017, the parties agreed that, given DOD's position that "active duty" was required for certification of honorable service on an N-426, there were no facts in dispute, and the Court could collapse the preliminary injunction into a hearing on the merits. (10/18/2017 Tr. at 4-5.) Accordingly, the Court directed defendants to respond only to the merits of plaintiffs' substantive claims, set a hearing on the merits for October 18, 2017, and deferred defendants' obligation to respond to the motion for class certification. (Order, Sept. 25, 2017, ECF No. 16.) On October 10, 2017, defendants filed their response and a cross-motion for summary judgment on the "active duty" issue. (See Defs.' Summ. J. Opp. and Cross-Motion, Oct. 10, 2017, ECF Nos. 17 & 18). Plaintiffs filed a reply on October 13, 2017. (Pls.' Summ. J. Reply, Oct. 13, 2017, ECF No. 19.)
In the meantime, the legal landscape shifted dramatically. As the Court learned from the weekly status report filed in Nio at the end of the day on October 13, 2017 (see Nio, ECF No. 58), DOD had just issued its new N-426 policies for when it would certify that a MAVNI currently in the Selected Reserve was "serving honorably;" it retreated from any express requirement of "active-duty" service, but instead imposed the numerous additional requirements set forth in its October 13th
A preliminary injunction grants "intermediate relief of the same character as that which may be granted finally." De Beers Consol. Mines v. United States, 325 U.S. 212, 220, 65 S.Ct. 1130, 89 S.Ct. 1566 (1945). It is an extraordinary remedy only "awarded upon a clear showing that the plaintiff is entitled" to it. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). "A plaintiff seeking a preliminary injunction must establish 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." Id. at 20, 129 S.Ct. 365. Where the government is the opposing party, as here, these final two factors merge. Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009); Pursuing America's Greatness v. Fed. Election Comm'n, 831 F.3d 500, 511 (D.C. Cir. 2016). Finding that plaintiffs have carried their burden as to all requirements, the Court grants plaintiffs' motion for preliminary injunctive relief.
Plaintiffs bring claims under the APA and also a mandamus claim. "Where multiple causes of action are alleged, plaintiff need only show likelihood of success on one claim to justify injunctive relief." McNeil-PPC, Inc. v. Granutec, Inc., 919 F.Supp. 198, 201 (E.D.N.C. 1995); see also Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C. Cir. 1985).
Defendants argue that plaintiffs' claims under the APA fail as a matter of law because DOD's decision about whether and when to certify honorable service is a decision committed to agency discretion by law or because 8 U.S.C. § 1440 otherwise precludes judicial review. The Court disagrees.
The APA does withdraw judicial review to the extent that "statutes preclude judicial review," 5 U.S.C. § 701(a)(1), and where "an agency action is committed to agency discretion by law," id. § 701(a)(2). "Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved." Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). To determine "whether a matter has been committed solely to agency discretion, we consider both the nature of the administrative action at issue and the language and structure of the statute that supplies the
Here, the nature of the administrative action involved, as well as 8 U.S.C. § 1440's statutory and regulatory regime, provide a meaningful standard for judging DOD's N-426 certification decisions. See Block, 467 U.S. at 345, 104 S.Ct. 2450; Twentymile Coal Co., 456 F.3d at 156. The statute covers "[a]ny person who ... has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military." 8 U.S.C. § 1440(a). This specifically refers to past service, not to DOD's possible future suitability determinations. Moreover, the statute provides for revocation should "the person [be] separated from the Armed Forces under other than honorable conditions before the person has served honorably for a period or periods aggregating five years." Id. § 1440(c). And, under the applicable regulations, DOD is to certify honorable service for Selected Reserve members based on past service. See 8 C.F.R. § 329.2. Therefore, eligibility for naturalization under the MAVNI program, means that an applicant is eligible if, inter alia, he or she "[h]as served honorably in the Armed Forces of the United States as a member of the Selected Reserve of the Ready Reserve or in an active duty status." 8 C.F.R. § 329.2(a) (emphasis added).
Until the spring of 2017, DOD's practice aligned with these dictates. MAVNI enlistees had Form N-426s certified within days of submission. The certifying official confirmed that the enlistee (1) was serving, or had served in the Selected Reserves or in active duty, and (2) had at least one day of qualifying service, such as attendance at a drill. (PI Mot. Ex. 3.) The certifying official checked "yes" or "no" to "[s]tate whether the [enlistee] served honorably or is currently serving honorably for each period of military service the requestor served." (PI Mot. Ex. 3 at 2.)
From the unrebutted evidence the Court can conclude that DOD officials were making the certification determination based on an enlistee's service record as it existed on the day he submitted the N-426. Again, in "The Soldier's Guide to Citizenship Application" — a document used by U.S. Army Human Resources Command to assist MAVNI enlistees in completing their naturalization applications — the Army clearly explained the meaning of "honorable":
AR 135-178, § 2-8 "General considerations"; see also generally 10 U.S.C. § 12685 (defining character of a Selected Reservist's discharge); AR 135-178; AR 600-8-24; AR 635-200.
In addition to the statutory and regulatory regime and DOD's past practice, one court has reviewed how DOD has treated past service in certifying Form N-426s. In Cody v. Casterisano, the court reviewed issues surrounding a petitioner-enlistee's Form N-426 where, the government purported to (1) rescind and nullify a previously-issued Form N-426 certifying honorable service for a foreign student attending the U.S. Naval Academy on the grounds of administrative error because the student's service did not truly qualify as active-duty service; and then (2) issue a new N-426 after litigation commenced stating that the student had not served honorably because the service did not qualify as active-duty service. No. 09-cv-00687, at *1-4, 9-13 (D. Md. May 12, 2009) (unpublished). The federal district court, finding that the petitioner-enlistee was eligible for naturalization, did not defer to the N-426 issued after the beginning of litigation, but instead it concluded that it could either (1) consider itself bound by the N-426 issued prior to litigation, or (2) consider the petitioner's factual circumstances in light of 8 U.S.C. § 1440 and relevant regulations/policy guidance to find that the plaintiff was eligible for naturalization. Id. at 13-16. The government protested that the petitioner could not have served honorably for naturalization purposes because he was not inducted into active duty, but the court noted that it could find the plaintiff to "have been `constructively inducted' into active-duty in the Navy based on his rank of `midshipman' and his performing the duties of a service member." Id. at 13. Thus, the court independently determined the petitioner's honorable service under 8 U.S.C. § 1440(a) for naturalization purposes, even if the Navy's views differed.
Finally, because it is a ministerial duty, certification of honorable service for purposes of immigration and naturalization is unlikely to be committed to DOD's sole discretion or to be otherwise unreviewable. See, e.g., Norton v. S. Utah Wilderness All., 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (referring to courts' power to compel an agency to perform a ministerial act); Kitchen v. CSX Transp., Inc., 6 F.3d 727, 732 (11th Cir. 1993) ("A ministerial act is one that is simple, absolute,
Because plaintiffs have established that DOD's actions are reviewable, the Court will proceed to consider whether plaintiffs can demonstrate a likelihood of success in showing that DOD's October 13th Guidance is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
DOD concedes that prior to its October 13th Guidance, it had no formal written guidance on the meaning of "honorable service" for purposes of certifying N-426s. (10/18/2017 Tr. at 16-17, 24, 45, 66.) In the past, some DOD officials appear to have waited until enlistees entered IET to certify N-426s, while others certified N-426s before IET based on a Selected Reservist's qualifying drill periods. But in all cases, certification decisions were based on enlistees' service as of the time they submitted an N-426. Early in the Nio and Kirwa litigation, DOD represented to this Court that it planned to change its N-426 policy to only permit certification for MAVNI enlistees who were serving in an active-duty status. On the eve of the October 18th hearing, DOD, facing the probability that such a policy would be found to violate 8 U.S.C. § 1440(a), changed course yet again, offering a new set of criteria that would allow it to further prolong certification of Selected Reservists' N-426s.
DOD offered no reasoned explanation for this change, thereby suggesting that DOD's decision was an arbitrary and capricious one. See, e.g., Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 922-29, 2017 WL 4385259, at *5-10 (D.C. Cir. Sept. 29, 2017); Jicarilla Apache Nation v. U.S. Dep't of Interior, 613 F.3d 1112, 1120 (D.C. Cir. 2010) ("[W]e have never approved an agency's decision to completely ignore relevant precedent"). "A central principle of administrative law is that, when an agency decides to depart from decades-long past practices and official policies, the agency must at a minimum acknowledge the change and offer a reasoned explanation for it." Am. Wild Horse Pres. Campaign, 873 F.3d at 923, 2017 WL 4385259, at *5. Specifically, the D.C. Circuit has long required a "reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored." Lone Mountain Processing, Inc. v. Sec'y of Labor, 709 F.3d 1161, 1164 (D.C. Cir. 2013) (citation omitted). "Failing to supply such analysis renders the agency's action arbitrary and capricious." Id.
In an attempt to explain the change, defendants' counsel repeated the now-familiar refrain that DOD has made the change for "national security" purposes. (10/18/2017 Tr. at 60-61.) But DOD's Guidance is not justified by any national security concerns. As the Court recognized in Nio, national security issues may justify enhanced security screening, see Nio, 2017 WL 3917006, at *8, *11, *13, but N-426 certification is not related to that process. Importantly, DHS/USCIS is holding all MAVNI naturalization applications pending DOD's enhanced security screening so no MAVNI enlistee will naturalize until DOD completes the screening. And, even if a MAVNI enlistee were to slip through the cracks and obtain citizenship before screening had been completed, 8 U.S.C. § 1440(c) provides for revocation of citizenship if a person is separated under other than honorable conditions. Moreover, DOD fully controls what these enlistees do and have access to before the enhanced security screening is complete. Therefore, DOD has given no reasoned justification why certifying a form N-426 for immigration and naturalization purposes implicates our national security.
Furthermore, despite its assertions to the contrary, DOD does not control the naturalization process. (See PI Opp. at 38 ("DOD's new policy marks an effort to ... set standards for a naturalization process that has been greatly challenged by national security threats.").) So DOD's unfounded attempt to control criteria for naturalization does not constitute a reasonable explanation for the October 13, 2017 policy change here.
The October 13th Guidance also suffers from another potential flaw: It retroactively changes standards and procedures applicable to service members who enlisted prior to October 13, 2017. When plaintiffs enlisted, the government told them that they would receive N-426s either after just one day of qualifying service (e.g., a drill with their Selected Reserve unit), or within around 180 days when they shipped to basic training. At that point, they would be able to apply for naturalization. The process to receive an N-426 was to take approximately 180 days. Now, DOD says that it will certify plaintiffs as having served honorably only if three new conditions are met: (1) they are not the subject of any pending disciplinary action or pending adverse administrative action or proceeding, and are not the subject of a law enforcement or command investigation; (2) they have completed applicable screening and suitability requirements; and (3) they have served in a
Admittedly, the jurisprudence relevant to retroactivity in the context of administrative law involves either rulemaking by notice and comment or adjudications, but the principles that govern these cases are also relevant to DOD's Guidance. DOD has consummated its decisionmaking process and seeks to apply its decision in a concrete way that determines legal rights and obligations of plaintiffs and similarly-situated individuals. See Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).
"Generally, an agency may not promulgate retroactive rules without express congressional authorization." Arkema, Inc. v. EPA, 618 F.3d 1, 7 (D.C. Cir. 2010). At the very least, precedent explains that a retroactive agency action is impermissible if it is arbitrary and capricious. Nat'l Petrochemical & Refiners Ass'n v. EPA, 630 F.3d 145, 159 (D.C. Cir. 2010). As previously explained, plaintiffs are likely to succeed in proving that the October 13th Guidance is arbitrary and capricious.
In arguing against retroactivity, defendants claim that they have only interpreted 8 U.S.C. § 1440. However, even interpretations can be impermissibly retroactive if they "change[ ] the legal landscape." Arkema, 618 F.3d at 7; see also Nat'l Min. Ass'n v. Dep't of Labor, 292 F.3d 849, 860 (D.C. Cir. 2002). Under D.C. Circuit precedent, a new rule or policy changes the legal landscape if it "is
Furthermore, "if the separation of powers doesn't forbid this form of decisionmaking outright, ... second-order constitutional protections sounding in due process and equal protection, as embodied in our longstanding traditions and precedents addressing retroactivity in the law" might otherwise constrain retroactive application. De Niz Robles v. Lynch, 803 F.3d 1165, 1171-72 (10th Cir. 2015) (Gorsuch, J.). Any retroactive policy must have "sufficiently significant statutory interests" to counterbalance any "resulting inequities" from the retroactive agency action. Chadmoore Commc'ns, Inc. v. FCC, 113 F.3d 235, 240 (D.C. Cir. 1997); see also Garvey v. Nat'l Transp. Safety Bd., 190 F.3d 571, 584 (D.C. Cir. 1999) ("An agency is also barred from applying a new rule in the adjudication in which it is announced if doing so would work a `manifest injustice.'") (citation omitted). Before the October 13th Guidance MAVNI enlistees had a right to apply for an expedited path to citizenship and DOD's new procedures rob plaintiffs of this opportunity. The Court is therefore convinced that DOD's application of the October 13th Guidance could result in serious inequities that are not counterbalanced by any significant statutory interests.
Plaintiffs also claim DOD's N-426 policy violates 5 U.S.C. § 706(1), which authorizes a reviewing court to "compel agency action unlawfully withheld or unreasonably delayed." Id. To show that DOD has unlawfully withheld issuance of the N-426s, plaintiffs must demonstrate that DOD "failed to take a discrete agency action that it is required to take." Norton, 542 U.S. at 64, 124 S.Ct. 2373. "This standard reflects the common law writ of mandamus, which the APA `carried forward' in § 706(1)." Anglers Conservation Network v. Pritzker, 809 F.3d 664, 670 (D.C. Cir. 2016) (citing Norton, 542 U.S. at 63, 124 S.Ct. 2373). "Thus, § 706(1) grants judicial review only if a federal agency has a `ministerial or non-discretionary' duty amounting to `a specific, unequivocal command.'" Id. (citing Norton, 542 U.S. at 63-64, 124 S.Ct. 2373).
As explained in Part III.A, defendants have a ministerial duty to certify Form N-426s. Under 8 U.S.C. § 1440, certification of Form N-426s is a non-discretionary duty to the extent that it references past honorable service. 8 U.S.C. § 1440(a); see Meina Xie v. Kerry, 780 F.3d 405, 408 (D.C. Cir. 2015). Defendants have refused
"To show entitlement to mandamus, plaintiffs must demonstrate (1) a clear and indisputable right to relief, (2) that the government agency or official is violating a clear duty to act, and (3) that no adequate alternative remedy exists." Am. Hosp. Ass'n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016). Having found that plaintiffs are likely to succeed on the merits of at least one of their APA claims, the Court need not reach plaintiffs' mandamus claim. See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 379, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (noting that "mandamus may not issue so long as alternative avenues of relief remain available").
Irreparable harm requires "sufficient evidence that the [movant's] purported injury is certain, great, actual, imminent, and beyond remediation." Save Jobs USA v. U.S. Dep't of Homeland Sec., 105 F.Supp.3d 108, 112-13 (D.D.C. 2015); see also Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (describing the standard for irreparable harm). The record shows that DOD's N-426 policy is causing irreparable harm to plaintiffs.
Prior to 2017, DOD certified N-426s for MAVNI enlistees on the same day, or the day after, the N-426s were filed. (See Nio PI Exs. 26-32.) With N-426 in hand, MAVNI enlistees could pursue their promised path to expedited citizenship. Each named plaintiff is a MAVNI enlistee, serving in the Selected Reserve, who has attended drills with their units, and been compensated for that participation. (Kirwa Decl. ¶ 5; Meenhallimath Decl. ¶ 5; Viswanathan Decl. ¶ 5.) Since April 2017, plaintiffs have requested that DOD certify their Form N-426s, but DOD has refused. (Kirwa Decl. ¶¶ 8-9; Meenhallimath Decl. ¶¶ 6-10; Viswanathan Decl. ¶¶ 7-11; PI Mot. Exs. 12-13.) DOD cannot indefinitely delay certification of plaintiffs' Form N-426s without lawful justification, which, as discussed supra Part II.A, they have not provided.
As held in Nio, delaying naturalization applications after applicants have been promised an expedited path to citizenship constitutes irreparable harm. Nio, 2017 WL 3917006, at *9; see also Hamandi v. Chertoff, 550 F.Supp.2d 46, 51 (D.D.C. 2008); Vargas v. Meese, 682 F.Supp. 591, 595 (D.D.C. 1987). And, this Court is not the only one to recognize that undue delay in the naturalization context is harmful. See, e.g., Roshandel v. Chertoff, 554 F.Supp.2d 1194, 1200-01 (W.D. Wash. 2008) (granting class certification of a class of naturalization applicants seeking injunctive relief to end delay in application processing arising from pending FBI name checks, and noting that plaintiffs were statutorily "entitled to a naturalization decision by USCIS"), amended in part, No. C07-1739, 2008 WL 2275558 (W.D. Wash. June 3, 2008).
Furthermore, every day of delay leaves plaintiffs in limbo and in fear of removal. (Compl. ¶¶ 8-9.)
In sum, defendants' refusal to certify plaintiffs' N-426s based on their past honorable service causes irreparable injury to plaintiffs and the proposed class.
Finally, the Court concludes that the balance of equities favors plaintiffs. As explained in Part III, plaintiffs are suffering, and will continue to suffer, irreparable harm due to DOD's inaction, and as explained supra Part II.B.1, defendants have not offered sufficient justification for their policy change.
For purposes of preliminary injunctive relief, plaintiffs seek provisional class certification of a proposed class of (1) MAVNI enlistees, (2) who have served in the Selected Reserve, and (3) have not received a completed Form N-426. See R.I.L-R v. Johnson, 80 F.Supp.3d 164, 179-80 (D.D.C. 2015). In granting provisional class certification "the Court must still satisfy itself that the requirements of Rule 23 have been met. Its analysis is tempered, however, by the understanding that `such certifications may be altered or amended before the decision on the merits.'" Id. at 180 (internal citations omitted). After reviewing the record, the Court has concluded that the requirements of Rule 23 have been met, and defendants have failed to offer any meritorious reasons as to why provisional class certification is not appropriate. The Court will, however, modify the class to only include MAVNI enlistees who enlisted before October 13, 2017 because the October 13th Guidance has different criteria for MAVNI enlistees who enlisted on October 13, 2017 and after.
For the reasons stated above, the Court grants plaintiffs' motion for a preliminary injunction and provisional class certification. A separate order, ECF No. 28, accompanies this Memorandum Opinion.
(PI Opp. Ex. 4, at 7 ("MAVNI Information Paper").)
De Niz Robles v. Lynch, 803 F.3d 1165, 1172 (10th Cir. 2015).
