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Nio v. United States Department of Homeland Security

United States District Court, District of Columbia

October 27, 2017

KUSUMA NIO, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

          MEMORANDUM OPINION

          ELLEN SEGAL HUVELLE United States District Judge

         Before the Court is plaintiffs' amended motion for class certification. Plaintiffs are non-citizens serving in the United States Army's Selected Reserve of the Ready Reserve who enlisted under the United States Department of Defense's Military Accessions Vital to the National Interest (“MAVNI”) program and who have applied for naturalization pursuant to 8 U.S.C. § 1440, which provides an expedited path to citizenship for soldiers who serve during specified periods of hostilities. They brought this action against (1) the United States Department of Homeland Security (“DHS”) and its Acting Secretary, Elaine C. Duke, the United States Citizen and Immigration Service (“USCIS”) and its Acting Director, James McCament (collectively “DHS Defendants”); and (2) the United States Department of Defense (“DOD”) and its Secretary, James Mattis (collectively “DOD Defendants”). Plaintiffs bring multiple claims under the Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, seeking mandamus, declaratory relief, and injunctive relief. Plaintiffs challenge (1) DHS's/USCIS's decision to await DOD's completion of the enhanced security screening of MAVNI enlistees prior to their shipment to basic training or active-duty service (“DHS/USCIS Security Screening Requirement”), see Nio v. United States Dep't of Homeland Sec., No. 17-cv-998, 2017 WL 3917006, at *1-5 (D.D.C. Sept. 6, 2017), and (2) DOD's October 13th Guidance that required the recall and de-certification of USCIS Form N-426, which is a form necessary for a MAVNI's naturalization application under 8 U.S.C. § 1440. (Defs.' Weekly Status Report, Oct. 13, 2017, ECF No. 58, Ex. 1 (“10/13/2017 Guidance”) at 4.) Plaintiffs seek to certify a class, under Federal Rule of Civil Procedure 23(b)(1) or (2), consisting of all persons who (1) enlisted in the Selected Reserve, (2) have served honorably in the military “through participation in at least one Selected Reserve drill period or in an active-duty status, ” (3) have received a Form N-426 certifying their honorable service, (4) have submitted N-400 Applications for Naturalization to USCIS, and (5) are being subjected to the DHS/USCIS Security Screening Requirement and Section III of DOD's October 13, 2017 Guidance regarding N-426s. (Pls.' Am. Mot. For Class Certification and Appointment of Class Counsel, Oct. 20, 2017, ECF No. 62, (“Class Mot.”) at 1.)[1] For the reasons stated herein, the motion is granted with a modified class definition.

         BACKGROUND

         The factual background and procedural history in this case has been set out in detail in the Court's previous September 6, 2017 Memorandum Opinion denying plaintiffs' request for a preliminary injunction, Nio, 2017 WL 3917006, at *7-8, and the Court's previous October 25, 2017 Memorandum Opinion in the related case of Kirwa v. Dep't of Def., 17-cv-1793, ECF No. 29, granting those plaintiffs' request for a preliminary injunction. The only factual development relevant to the class-action inquiry is DOD's release of the October 13th Guidance. In that document, DOD sets forth criteria in Section III as follows:

         Decertification and Recertification.

         The Military Department concerned will recall and de-certify the Form N-426 for a Service Member described below:

1. The Service Member's accession was prior to the date of this memorandum; AND
2. The Service Member has submitted to the USCIS a complete application for naturalization that includes both a Form N-400 and a Form N-426, certifying the member's honorable service for purposes of naturalization, signed by a representative of the Military Department concerned, and USCIS has not adjudicated such application, or, if USCIS has granted such application, the member has not yet naturalized; AND
3. The Service Member has not completed all applicable screening and suitability requirements as set forth in Section 1, paragraph 2 above [the enhanced security screening that is the subject of the DHS/USCIS Security Screening Requirement].

(10/13/2017 Guidance at 4.) Following issuance of the October 13th Guidance, this Court issued an order granting plaintiffs leave to file an amended complaint, an amended motion for class certification, and a motion for preliminary injunctive relief confined to the issue of DOD's position regarding N-426s outlined in Section III of the October 13th Guidance. (Order, October 18, 2017, ECF No. 60.) Having received the parties' arguments on class certification at a hearing on October 27, 2017, the Court is now ready to rule.

         ANALYSIS

          I. LEGAL STANDARD

         A plaintiff seeking class certification must meet the two requirements set forth in Federal Rule of Civil Procedure 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011); Garcia v. Johanns, 444 F.3d 625, 631 (D.C. Cir. 2006). First, under Rule 23(a), all class actions must satisfy the four requirements of numerosity, commonality, typicality, and adequacy. Second, the suit must fit into one of the three types of class actions outlined in Rule 23(b)(1), (b)(2), and (b)(3). The Court finds that this suit satisfies the Rule 23(a) requirements and that a class should be certified under Rule 23(b)(1)(A) and Rule 23(b)(2).

         II. CLASS DEFINITION

         Plaintiffs define their proposed class as all persons who:

(i) have enlisted in the Selected Reserve of the Ready Reserve (“Selected Reserve”) through the Military Accessions Vital to the National ...

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