United States District Court, District of Columbia
SEGAL HUVELLE United States District Judge
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.) For the reasons stated herein, the motion
is granted with a modified class definition.
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
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;
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.
I. LEGAL STANDARD
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).
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 ...