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Kirwa v. United States Department of Defense

United States District Court, District of Columbia

January 11, 2018

MAHLON KIRWA, et al., Plaintiffs,



         Plaintiffs, and the class whom they represent, are 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. To do so, however, they need 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 their Form N- 426s is unlawful under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and the Constitution.[1]

         Before the Court is defendants' motion to dismiss, or in the alternative, for summary judgment. (Nov. 17, 2017, ECF No. 39, (“MTD”).) For the reasons stated herein, the Court will grant defendants' motion to dismiss plaintiffs' constitutional substantive-due-process claim, but otherwise denies defendants' motion.


         The relevant background is set out in detail in the Court's prior opinions certifying the class[2] and granting preliminary injunctive relief to plaintiffs. (Mem. Op., Dec. 1, 2017, ECF No. 47, (“Class Cert. Op.”)); Kirwa v. United States Dep't of Def., No. 17-cv-1793, 2017 WL 4862763 (D.D.C. Oct. 25, 2017) (granting preliminary injunctive relief).[3] Given the posture of the case, the Court need only summarize plaintiffs' allegations and the relevant procedural history.


         DOD encouraged plaintiffs to enlist in the MAVNI program touting the opportunity as an “expedited” path to citizenship. (Pls.' Am. Compl., Nov. 3, 2017, ECF No. 33 (“Am. Compl.”), ¶¶ 26, 121-30.) In return, “[e]ach Plaintiff's enlistment contract obligates him to eight years of service in the Army Reserve, six years of which must be served in the Selected Reserve.” (Id. ¶ 27.)

         From the inception of the MAVNI program in 2008 until early 2017, USCIS naturalized “at least 10, 000 MAVNI enlistees” through an expedited path to citizenship. Nio v. United States Dep't of Homeland Sec., No. CV 17-cv-998, 2017 WL 3917006, at *3 (D.D.C. Sept. 6, 2017). Prior to the events relevant to this case and the related Nio case, this expedited path to citizenship meant that officers under DOD's control could, and would often, certify a Selected Reservist's honorable service after one qualifying day of drilling service by checking “yes” or “no” on the Form N-426. (Am. Compl. ¶¶ 46, 64.) Under this non-formalized policy, executed by DOD officers through at least 2017, plaintiffs and the class were eligible for an honorable service certification based on their past qualifying service, and this certification was routinely granted to similar enlistees in an expeditious fashion. (Id. ¶¶ 11, 27, 64, 89.) In short,

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. . . . If MAVNIs did not have certified N-426s before they entered IET, they would receive one and apply for citizenship at IET. 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.

Kirwa, 2017 WL 4862763, at *6 (internal citations omitted).

         Sometime in 2017 DOD began to reevaluate their N-426 policy, and on August 17, 2017, before plaintiffs could get certified N-426s, DOD “directed relevant commands to withhold issuance of any N-426 certifications to Selected Reserve soldiers at least until these soldiers serve in an active-duty status” (Am. Compl. ¶ 48), a status that would not be satisfied by drill periods. (Id. ¶¶ 51-53.) Thereafter, plaintiffs filed suit on September 1, 2017 challenging the August 17th policy.

         However, on October 13, 2017, defendants issued a new policy that no longer required active-duty status, but instead, it specified that

no service member is eligible to receive an N-426 honorable service certification until all of the following criteria are met:
1. Legal and Disciplinary Matters: The Service Member is not the subject of pending disciplinary action or pending adverse admin1istrative action or proceeding, and is not the subject of a law enforcement or command investigation, AND
2. Background Investigation and Suitability Vetting: The Service Member has completed all applicable screening and suitability requirements as set forth in Section 1, paragraph 2 above, AND
3. Military Training and Required Service: The Service Member has served in a capacity, for a period of time, and in a manner that permits and informed determination that the member has served honorably as a member of the Selected Reserve of the Ready Reserve or member of an active component of a military or naval force of the United States, as determined by the Secretary of the Military Department concerned.

(Id. ¶ 60 (“October 13th Guidance”).) Plaintiffs allege that DOD's October 13th Guidance is

directly at odds with DoD's own past interpretation and practices with respect to honorable service certifications under Section 1440. The reality is that DoD previously regularly and routinely certified the honorable service of hundreds, if not thousands, of MAVNI soldiers without any service in an active-duty status, without any minimum service period requirement, without any new so-called definition of “honorable” service, and without any of the other unlawful requirements now being imposed by DoD. This includes numerous health care professional MAVNIs over the years of the program and approximately 500 MAVNI soldiers, including “language” MAVNIs, in recent months. DoD even has acknowledged, on multiple occasions, that a valid measure for a Selected Reserve MAVNI's eligibility for naturalization is two half-day drills (the equivalent of one day of drilling service).

(Id. ¶ 64.)


         Plaintiffs filed a complaint on September 1, 2017, challenging DOD's refusal to complete their N-426 Forms and to certify their honorable service in the Selected Reserve as unlawfully imposing extra-statutory requirements 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”). Plaintiffs have brought claims under the APA, 5 U.S.C. § 706(1) and (2) (Count III), and for mandamus, 28 U.S.C. § 1361 (Count IV).[4] (Pls.' Compl., Sept. 1, 2017, ECF No. 1, ¶¶ 82-105.)

         On November 3, 2017, with the leave of the Court, plaintiffs filed an amended complaint to challenge DOD's October 13th Guidance, instead of the August 17th policy, and to add a Count V alleging constitutional violations-specifically that defendants' conduct violates (1) the “uniform Rule of Naturalization” clause of the Constitution and (2) plaintiffs' rights under the Fifth Amendment's due process clause. (Am. Compl. ¶¶ 121-30.) On November 17, 2017, defendants filed the instant motion-invoking many arguments that the Court had previously addressed and rejected in its decision granting a preliminary injunction-and adding a challenge to plaintiffs' constitutional claims. In addition, defendants argued that summary judgment should be granted based on the administrative record that it filed, but in making this argument, defendants relied primarily on a declaration by Stephanie Miller; a declaration that was not part of the administrative record and was executed by Stephanie Miller a month after the October 13th Guidance was adopted. On December 1, 2017, plaintiffs filed their opposition, and on December 8, 2017, defendants filed their reply. The Court is now in a position to rule on defendants' motion.



         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         “A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a plaintiff's complaint; it does not require a court to ‘assess the truth of what is asserted or determine whether a plaintiff has any evidence to back up what is in the complaint.'” Herron v. Fannie Mae, 861 F.3d 160, 173 (D.C. Cir. 2017) (citing Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)). In ruling on the motion, the Court must normally confine its review to the four corners of the complaint, [5]presume reasonably well-pled factual allegations to be true, and draw all reasonable inferences in favor of the plaintiff. See Abdelfattah v. U.S. Dep't of Homeland Sec., 787 F.3d 524, 529 (D.C. Cir. 2015); James v. D.C., 869 F.Supp.2d 119, 120-21 (D.D.C. 2012).[6]


         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 APA withdraws judicial review to the extent that “statutes preclude judicial review, ” 5 U.S.C. § 701(a)(1), or 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 (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 applicable legal standards for reviewing that action.” Sec'y of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C. Cir. 2006) (citation omitted). “[I]f the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion, ” then it is unreviewable. Heckler v. Chaney, 470 U.S. 821, 830 (1985). But “there is a strong presumption that agency action is reviewable, ” and Congress rarely draws statutes in terms so broad that there is no meaningful standard. Twentymile Coal Co., 456 F.3d at 156; see also Inland Empire - Immigrant Youth Collective v. Elaine C. Duke, No. ED-CV-17-2048PSGSHKX, 2017 WL 5900061, at *3-4 (C.D. Cal. Nov. 20, 2017) (noting that agency regulations and memoranda can serve as standards by which to judge an agency's discretion).

         At the preliminary injunction stage, this Court found that DOD's N-426 policy is not committed to agency discretion because there were meaningful standards by which the Court can judge the agency's action and because the granting or denying of an N-426 constituted a ministerial task. Kirwa, 2017 WL 4862763, at *10-12. In the present motion, defendants repackage arguments made at the preliminary injunction stage, attempt to distinguish the Court's prior reasoning, and suggest that “courts should exercise great caution when adjudicating claims involving sensitive military and national-security matters.” (MTD at 17.) Not one these arguments persuades the Court to reverse course.

         The Court continues to adhere to its view the nature of the administrative action “as well as 8 U.S.C. § 1440's statutory and regulatory regime, provide [the] meaningful standard for judging DOD's N-426 certification decisions.” Kirwa, 2017 WL 4862763, at *10. Moreover, while courts should exercise caution when adjudicating claims involving matters of military affairs and national security, that caution does not give DOD carte blanche authority to act in contravention of the Constitution or applicable statutes. See, e.g., Wagafe v. Trump, No. 2:17-CV-00094, 2017 WL 5989162, at *1 (W.D. Wash. Nov. 28, 2017) (“The Government may not merely say those magic words-‘national security threat'-and automatically have its requests granted in this forum.”); see also John Doe v. Donald Trump, No. C17-0178, 2017 WL 6551491, at *14-15 (W.D. Wash. Dec. 23, 2017) (refusing to hold that an immigration statute with a series of eligibility requirements committed action to agency discretion just because “the Secretary may have discretion over what the [ultimate] decision will be” on a refugee application); Toyosaburo Korematsu v. United States, 323 U.S. 214, 244 (1944) (Jackson, J., dissenting) (“But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient.”).

         III. APA § 706(1)

         Plaintiffs claim that DOD's N-426 policy violates 5 U.S.C. § 706(1), which authorizes a reviewing court to “compel agency action unlawfully withheld.” Id.[7] 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 v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). “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). “Thus, § 706(1) grants judicial review ...

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