U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17-cv-01793-ESH-GMH

KIRWA et al v. UNITED STATES DEPARTMENT OF DEFENSE et al Assigned to: Judge Ellen S. Huvelle Referred to: Magistrate Judge G. Michael Harvey Cause: 28:1331 Fed. Question
Cases: 1:17-cv-00998-ESH-RMM

Date Filed: 09/01/2017 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

1:17-cv-01833-ESH

1:19-mc-00034-BAH 1:20-cv-01104-ESH

1:19-cv-03351-ESH

Plaintiff MAHLON KIRWA

represented by Douglas W. Baruch MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 (202) 739-5219 Fax: (202) 739-3001 Email: douglas.baruch@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer M. Wollenberg MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 (202) 739 5313 Fax: (202) 739 3001 Email: jennifer.wollenberg@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kayla M.S. Kaplan

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004-2541 (202) 739-5736 Fax: 202-739-3001 Email: kayla.kaplan@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neaha P Raol MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 (202) 739-5702 Fax: (202) 739-3001 Email: neaha.raol@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph J. LoBue FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP 801 17th Street, NW Washington, DC 20006 (202) 639-7493 Fax: (202) 639-7003 Email: joseph.lobue@friedfrank.com TERMINATED: 10/03/2018

Plaintiff SANTHOSH MEENHALLIMATH

represented by Douglas W. Baruch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer M. Wollenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
ASHOK VISWANATHAN on behalf of themselves and those similarly situated

Kayla M.S. Kaplan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neaha P Raol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph J. LoBue (See above for address) TERMINATED: 10/03/2018
represented by Douglas W. Baruch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer M. Wollenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kayla M.S. Kaplan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neaha P Raol (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph J. LoBue (See above for address) TERMINATED: 10/03/2018

V.

Defendant

UNITED STATES DEPARTMENT represented by Daniel D. Mauler

OF DEFENSE

U.S. DEPARTMENT OF JUSTICE

Civil Division-Federal Programs Branch 1100 L Street, NW Washington, DC 20005 (202) 616-0773 Fax: (202) 616-8470 Email: dan.mauler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Liam Holland U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Room 11318 Washington, DC 20530 202-514-4964 Email: liam.c.holland@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph C. Dugan U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Washington, DC 20005 (202) 514-3259 Email: joseph.dugan@usdoj.gov TERMINATED: 03/04/2019
Michael Fraser Knapp U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Washington, DC 20005 (202) 305-8613 Fax: (202) 616-8470 Email: michael.Knapp@usdoj.gov TERMINATED: 06/25/2019
Nathan Michael Swinton U.S. DEPARTMENT OF JUSTICE

Civil Division - Commercial Litigation Branch 1100 L Street NW Washington, DC 20530 (202) 305-7667 Email: nathan.m.swinton@usdoj.gov TERMINATED: 07/31/2020

Defendant
JAMES N. MATTIS in his ofﬁcial capacity as Secretary of Defense of the United States Department of Defense TERMINATED: 06/26/2019

represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Liam Holland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph C. Dugan (See above for address) TERMINATED: 03/04/2019

Michael Fraser Knapp (See above for address) TERMINATED: 06/25/2019

Nathan Michael Swinton (See above for address) TERMINATED: 07/31/2020

Defendant
MARK T. ESPER in his ofﬁcial capacity as Acting Secretary of Defense

represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Liam Holland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Fraser Knapp (See above for address)

TERMINATED: 06/25/2019
Nathan Michael Swinton (See above for address) TERMINATED: 07/31/2020

Date Filed 09/01/2017
09/01/2017 09/01/2017 09/05/2017 09/06/2017 09/06/2017 09/06/2017 09/06/2017

# Docket Text
1 COMPLAINT against JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE ( Filing fee $ 400 receipt number 0090-5099800) ﬁled by Mahlon Kirwa, Ashok Viswanathan, Santhosh Meenhallimath. (Attachments: # 1 Civil Cover Sheet, # 2 Related Case Form, # 3 Summons United States Department of Defense, # 4 Summons James Mattis, # 5 Summons Jeff Sessions, # 6 Summons Channing D. Phillips)(LoBue, Joseph) (Entered: 09/01/2017)
2 NOTICE OF RELATED CASE by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN. Case related to Case No. 17-998. (jd) (Entered: 09/05/2017)
Case Assigned to Judge Ellen S. Huvelle. (jd) (Entered: 09/05/2017)
3 SUMMONS (4) Issued Electronically as to JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Forms)(jd) (Entered: 09/05/2017)
4 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF DEFENSE served on 9/6/2017 (LoBue, Joseph) (Entered: 09/06/2017)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. JAMES MATTIS served on 9/6/2017 (LoBue, Joseph) (Entered: 09/06/2017)
6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 09/06/2017. (LoBue, Joseph) (Entered: 09/06/2017)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/6/2017. Answer due for ALL FEDERAL DEFENDANTS by 11/5/2017. (LoBue, Joseph) (Entered: 09/06/2017)

09/06/2017 09/06/2017 09/19/2017 09/19/2017
09/19/2017 09/20/2017
09/20/2017

8 NOTICE of Appearance by Jennifer M. Wollenberg on behalf of All Plaintiffs (Wollenberg, Jennifer) (Entered: 09/06/2017)
9 NOTICE of Appearance by Douglas W. Baruch on behalf of All Plaintiffs (Baruch, Douglas) (Entered: 09/06/2017)
10 NOTICE of Appearance by Nathan Michael Swinton on behalf of JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Swinton, Nathan) (Entered: 09/19/2017)
11 MOTION for Preliminary Injunction by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Declaration of Mahlon Kirwa, # 22 Declaration of Santhosh Meenhallimath, # 23 Declaration of Ashok Viswanathan, # 24 Declaration of Jennifer M. Wollenberg, # 25 Text of Proposed Order)(LoBue, Joseph) (Entered: 09/19/2017)
12 MOTION to Certify Class and Appointment of Class Counsel by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN (Attachments: # 1 Declaration of Douglas W. Baruch, # 2 Text of Proposed Order)(LoBue, Joseph). Added MOTION to Appoint Class Counsel on 9/20/2017 (znmw). (Entered: 09/19/2017)
MINUTE ORDER re 11 MOTION for Preliminary Injunction: It is hereby ORDERED that defendants shall ﬁle their response to plaintiffs' motion for a preliminary injunction by September 26, 2017; it is further ORDERED that plaintiffs shall ﬁle any reply by October 2, 2017; it is further ORDERED that a hearing on the motion for preliminary injunction is set for October 10, 2017, at 2:30pm in Courtroom 23A; and it is further ORDERED that the parties shall provide Chambers with two (paper) courtesy copies of all ﬁlings. Signed by Judge Ellen S. Huvelle on September 20, 2017. (lcesh1, ) (Entered: 09/20/2017)
Set/Reset Hearings: Preliminary Injunction Hearing set for 10/10/2017 at 02:30 PM in Courtroom 23A before Judge Ellen S. Huvelle. (AG) (Entered: 09/20/2017)

09/20/2017 09/21/2017 09/22/2017 09/22/2017 09/25/2017 10/10/2017

Set/Reset Deadlines/Hearings: Defendant's response to plaintiff's motion for a preliminary injunction due by 9/26/2017. Plaintiff's reply due by 10/2/2017. Preliminary Injunction Hearing set for 10/10/2017 at 02:30 PM in Courtroom 23A before Judge Ellen S. Huvelle. (jl) (Entered: 09/20/2017)
13 MOTION for Extension of Time to File Response/Reply as to 11 MOTION for Preliminary Injunction , 12 MOTION to Certify Class and Appointment of Class Counsel MOTION to Appoint Counsel by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Exhibit Declaration of Captain Alicia M. Glanz, # 2 Exhibit Defendants' Notice of Supplemental Documentation in Nio v. DHS, # 3 Text of Proposed Order)(Swinton, Nathan) (Entered: 09/21/2017)
14 Memorandum in opposition to re 13 MOTION for Extension of Time to File Response/Reply as to 11 MOTION for Preliminary Injunction , 12 MOTION to Certify Class and Appointment of Class Counsel MOTION to Appoint Counsel ﬁled by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(LoBue, Joseph) (Entered: 09/22/2017)
15 ORDER re 13 MOTION for Extension of Time to File Response/Reply as to 11 MOTION for Preliminary Injunction, 12 MOTION to Certify Class: ORDERED that the Court will hold a conference call on Monday September 25, 2017, at a time in the afternoon to be determined, to set a revised brieﬁng schedule. See Order for details. Signed by Judge Ellen S. Huvelle on September 22, 2017. (lcesh1) (Entered: 09/22/2017)
16 ORDER granting 13 Motion for Extension of Time to File Response/ Reply re 11 MOTION for Preliminary Injunction: Defendants' Responses due by 10/10/2017 at 12:00 PM. Plaintiffs' Reply due by 10/13/2017. Motion Hearing set for 10/18/2017 at 02:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. See ORDER for additional details. Signed by Judge Ellen S. Huvelle on September 25, 2017. (lcesh1) (Entered: 09/25/2017)
17 Memorandum in opposition to re 11 MOTION for Preliminary Injunction ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Swinton, Nathan) (Entered: 10/10/2017)

10/10/2017 10/13/2017 10/14/2017
10/14/2017 10/16/2017 10/16/2017

18 Cross MOTION for Summary Judgment by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Memorandum in Support, # 2 Exhibit First Miller Declaration, # 3 Exhibit Second Miller Declaration)(Swinton, Nathan) (Entered: 10/10/2017)
19 REPLY to opposition to motion re 11 MOTION for Preliminary Injunction ﬁled by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN. (Attachments: # 1 Attachment 1)(LoBue, Joseph) (Entered: 10/13/2017)
MINUTE ORDER:In view of the changed N-426 policy reﬂected in the October 13, 2017 Status Report in Nio v. DHS, 17-cv-0998, October 13, 2017, ECF No. 58, Ex. 1, Section II, the Court can no longer treat plaintiffs' motion for a preliminary injunction as a motion for summary judgment. The question is no longer whether DOD can deny N-426 certiﬁcation for failure to begin active-duty status. In light of these changes, it is ORDERED that the October 18, 2017 hearing will be treated as a hearing on the preliminary injunction motion; it is further ORDERED that defendants shall ﬁle a response to plaintiffs' preliminary injunction motion, by 12:00 PM Monday, October 16, 2017; it is further ORDERED that plaintiffs shall ﬁle any reply by 12:00 PM Tuesday, October 17, 2017.At the moment the Court intends to proceed with the hearing on October 18, 2017, but may have to delay to the afternoon of October 19, 2017 depending on the brieﬁng.SO ORDERED. Signed by Judge Ellen S. Huvelle on October 14, 2017. (lcesh1) (Entered: 10/14/2017)
Set/Reset Deadlines: Defendant's response to plaintiff's motion for preliminary injunction is due by 12:00pm on 10/16/2017. Plaintiff's reply is due by 12:00pm on 10/17/2017. (jl) (Entered: 10/16/2017)
20 RESPONSE re 11 MOTION for Preliminary Injunction ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Exhibit First Miller Declaration, # 2 Exhibit Second Miller Declaration, # 3 Exhibit October 13, 2017 Policy, # 4 Exhibit MAVNI Information Papers signed by Plaintiffs)(Swinton, Nathan) (Entered: 10/16/2017)
MINUTE ORDER: It is hereby ORDERED that the October 18, 2017 Preliminary Injunction Hearing is rescheduled for 11:30 AM. Signed by Judge Ellen S. Huvelle on October 16, 2017. (lcesh1) (Entered: 10/16/2017)

10/16/2017
10/17/2017 10/17/2017
10/17/2017 10/18/2017 10/19/2017 10/19/2017

ENTERED IN ERROR PER CHAMBERS. . . . .MINUTE ORDER: It is hereby ORDERED that a status conference will be scheduled on October 18, 2017 at 2:30 PM in Courtroom 23A to discuss plaintiffs' request for permission to renew their Motion for Preliminary Injunction, at least in part, based on changed circumstances. Signed by Judge Ellen S. Huvelle on October 16, 2017. (lcesh1) Modiﬁed on 10/17/2017 (td). (Entered: 10/16/2017)
21 Unopposed MOTION for Leave to File Brief in Excess of Twenty-Five Pages by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN (Attachments: # 1 Text of Proposed Order) (LoBue, Joseph) (Entered: 10/17/2017)
22 REPLY to opposition to motion re 11 MOTION for Preliminary Injunction ﬁled by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14) (LoBue, Joseph) (Entered: 10/17/2017)
MINUTE ORDER granting 21 Motion for Leave to File: it is hereby ORDERED that plaintiffs' Motion for Leave to File a Brief in excess of the page limit is GRANTED. Signed by Judge Ellen S. Huvelle on October 17, 2017. (lcesh1) (Entered: 10/17/2017)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Motion Hearing held on 10/18/2017 re 11 MOTION for Preliminary Injunction . Motion taken under advisement. Scheduling order to be submitted via chambers. (Court Reporter Janice Dickman.) (jl) (Entered: 10/18/2017)
23 NOTICE of Supplemental Filing by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN re 11 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (LoBue, Joseph) (Entered: 10/19/2017)
24 NOTICE of Supplemental Filing by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Exhibit DoD Instruction 1332.14, # 2 Exhibit Army Regulation 635-200, # 3 Exhibit Army Regulation 135-178, # 4 Exhibit Army Regulation 600-8-24) (Swinton, Nathan) (Entered: 10/19/2017)

10/19/2017 10/20/2017 10/20/2017
10/25/2017 10/25/2017 10/27/2017

25 NOTICE of Supplemental Filing by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Exhibit Enlistment documents for Plaintiff Kirwa, # 2 Exhibit Enlistment documents for Plaintiff Meenhallimath, # 3 Exhibit Enlistment documents for Plaintiff Viswanathan)(Swinton, Nathan) (Entered: 10/19/2017)
26 NOTICE of Clariﬁcation by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Declaration Declaration of Stephanie Miller)(Swinton, Nathan) (Entered: 10/20/2017)
27 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on October 18, 2017; Page Numbers: 1-118. Date of Issuance: October 20, 2017. Court Reporter/Transcriber Janice Dickman, Telephone number 202-354-3267, Transcripts may be ordered by submitting the Transcript Order Form.
For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 11/10/2017. Redacted Transcript Deadline set for 11/20/2017. Release of Transcript Restriction set for 1/18/2018. (Dickman, Janice) (Entered: 10/20/2017)
28 ORDER granting 11 Motion for Preliminary Injunction. See ORDER for details. Signed by Judge Ellen S. Huvelle on October 25, 2017. (lcesh1) (Entered: 10/25/2017)
29 MEMORANDUM OPINION granting plaintiffs' motion for preliminary injunction, ECF No. 11 , and provisionally certifying a class. See MEMORANDUM OPINION and accompanying ORDER, ECF No. 28 for details. Signed by Judge Ellen S. Huvelle on October 25, 2017. (lcesh1) (Entered: 10/25/2017)
30 MOTION to Clarify and for Administrative Stay by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Swinton, Nathan). Added MOTION to Stay on 10/30/2017 (znmw). (Entered: 10/27/2017)

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10/27/2017 10/30/2017 11/03/2017 11/03/2017 11/15/2017

31 ORDER granting 30 defendants' motion to clarify 28 Order granting preliminary injunction; denying 30 motion for administrative stay; denying without prejudice 18 defendant's cross-motion for summary judgment; setting 11/3/2017 as deadline for defendants' response to amended complaint and 11/28/2017 as deadline for response to 12 plaintiffs' motion for class certiﬁcation. Signed by Judge Ellen S. Huvelle on October 27, 2017. (AG) (Entered: 10/27/2017)
32 AMENDED ORDER granting motion for preliminary injunction issued to clarify 28 Order on Motion for Preliminary Injunction. Signed by Judge Ellen S. Huvelle on October 27, 2017. (AG) (Entered: 10/27/2017)
Set/Reset Deadlines: Response to plaintiff's motion for class certiﬁcation due by 11/28/2017 (gdf) (Entered: 10/30/2017)
33 AMENDED COMPLAINT against JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE ﬁled by MAHLON KIRWA, ASHOK VISWANATHAN, SANTHOSH MEENHALLIMATH.(LoBue, Joseph) (Entered: 11/03/2017)
34 SUPPLEMENTAL MEMORANDUM to re 12 MOTION to Certify Class and Appointment of Class Counsel MOTION to Appoint Counsel ﬁled by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN. (LoBue, Joseph) (Entered: 11/03/2017)
35 MOTION to Enforce Court Order (Dkt 32) by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Declaration of Jennifer M. Wollenberg, # 9 Text of Proposed Order)(LoBue, Joseph) (Entered: 11/15/2017)

11/16/2017
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36 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 9-25-17; Page Numbers: 1-7. Date of Issuance:11-16-17. Court Reporter/Transcriber Lisa Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form.
For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 12/7/2017. Redacted Transcript Deadline set for 12/17/2017. Release of Transcript Restriction set for 2/14/2018.(Grifﬁth, Lisa) (Entered: 11/16/2017)
37 ORDER re 35 MOTION to Enforce Court Order (Dkt 32) ﬁled by ASHOK VISWANATHAN, SANTHOSH MEENHALLIMATH, MAHLON KIRWA. See ORDER for details. Signed by Judge Ellen S. Huvelle on November 16, 2017. (lcesh1) (Entered: 11/16/2017)
Set/Reset Deadlines: Responses due by 11/29/2017. Reply due by 12/4/2017. (gdf) (Entered: 11/20/2017)
38 NOTICE of Filing of Certiﬁcation and Index of Administrative Record by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Exhibit Certiﬁcation of Administrative Record, # 2 Exhibit Index to Administrative Record)(Swinton, Nathan) (Entered: 11/17/2017)
39 MOTION to Dismiss Amended Complaint or in the Alternative for Summary Judgment by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Memorandum in Support, # 2 Exhibit October 17, 2017 DoD Memorandum for Secretaries of the Military Departments, # 3 Exhibit October 27, 2017 Army Memorandum for Chief, Army Reserve, # 4 Declaration Declaration of Col. Brian Thomas, # 5 Declaration Declaration of Stephanie Miller, # 6 Text of Proposed Order)(Swinton, Nathan). Added MOTION for Summary Judgment on 11/20/2017 (znmw). (Entered: 11/17/2017)

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11/29/2017 11/29/2017 11/30/2017
11/30/2017 11/30/2017 11/30/2017

40 NOTICE of Defendants' Non-Opposition to Plaintiffs' Motion for Class Certiﬁcation by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE re 12 MOTION to Certify Class and Appointment of Class Counsel MOTION to Appoint Counsel (Swinton, Nathan) (Entered: 11/28/2017)
41 RESPONSE re 35 MOTION to Enforce Court Order (Dkt 32) ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Exhibit List, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E, # 7 Exhibit Exhibit F, # 8 Exhibit Exhibit G, # 9 Exhibit Exhibit H, # 10 Exhibit Exhibit I, # 11 Exhibit Exhibit J, # 12 Exhibit Exhibit K, # 13 Exhibit Exhibit L)(Swinton, Nathan) (Entered: 11/29/2017)
42 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Text of Proposed Order, # 2 Exhibit) (Swinton, Nathan) (Entered: 11/29/2017)
43 NOTICE of Filing of Proposed Joint Communication to Class Members by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Swinton, Nathan) (Entered: 11/29/2017)
MINUTE ORDER granting 42 Sealed Motion for Leave to File Document Under Seal:On consideration of defendants' Motion to Seal Exhibit Containing Personally Identiﬁable Information, it is hereby ORDERED that the motion is GRANTED, and the attached unredacted exhibit, (redacted exhibit ECF No. [41-13]) shall remain under seal on the Courts public docket. Signed by Judge Ellen S. Huvelle on November 30, 2017. (lcesh1) (Entered: 11/30/2017)
44 REPLY re 12 MOTION to Certify Class Plaintiffs' Reply Brief in Support of Their Motion for Class Certiﬁcation ﬁled by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN. (LoBue, Joseph) Modiﬁed link on 12/1/2017 (znmw). (Entered: 11/30/2017)
45 MOTION for Leave to File Supplemental Brief by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order, # 2 Defendants' Supplemental Filing) (Swinton, Nathan) (Entered: 11/30/2017)
46 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (This document is SEALED and only available to authorized persons.)(znmw) (Entered: 12/01/2017)

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12/01/2017 12/01/2017 12/01/2017 12/01/2017 12/08/2017 12/11/2017 12/11/2017 12/13/2017

MINUTE ORDER: It is hereby ORDERED that for all motions or brieﬁngs exceeding 25 pages, or otherwise including exhibits, counsel shall provide Chambers with two courtesy paper copies. All courtesy copies should be in 3-ring binders with tabbed exhibits and an exhibit list/ table of contents. Signed by Judge Ellen S. Huvelle on December 1, 2017. (lcesh1) (Entered: 12/01/2017)
MINUTE ORDER: The day for plaintiffs ﬁling of a reply regarding the motion to enforce the Court's Order, ECF No. 35 is hereby SUSPENDED until further notice. Signed by Judge Ellen S. Huvelle on December 1, 2017. (lcesh1) (Entered: 12/01/2017)
47 MEMORANDUM OPINION in support of ORDER 48 granting 12 Motion to Certify Class; granting 12 Motion to Appoint Counsel. Signed by Judge Ellen S. Huvelle on December 1, 2017. (lcesh1) (Main Document 47 replaced on 12/4/2017) (jf). (Entered: 12/01/2017)
48 ORDER: granting Motion to Certify Class, Motion to Appoint Counsel, for the reasons stated in the accompanying Memorandum Opinion 47 . Signed by Judge Ellen S. Huvelle on December 1, 2017. (lcesh1) (Entered: 12/01/2017)
49 Memorandum in opposition to re 39 MOTION to Dismiss Amended Complaint or in the Alternative for Summary Judgment MOTION for Summary Judgment ﬁled by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN. (Attachments: # 1 Text of Proposed Order)(LoBue, Joseph) (Entered: 12/01/2017)
50 REPLY to opposition to motion re 39 MOTION to Dismiss Amended Complaint or in the Alternative for Summary Judgment MOTION for Summary Judgment ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Swinton, Nathan) (Entered: 12/08/2017)
51 ORDER directing defendants to ﬁle documents. See ORDER for details. Signed by Judge Ellen S. Huvelle on December 11, 2017. (lcesh1) (Entered: 12/11/2017)
Set/Reset Deadlines: Administrative Record due by 12/14/2017. (gdf) (Entered: 12/11/2017)
52 NOTICE of Lodging of Classiﬁed Document by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Swinton, Nathan) (Entered: 12/13/2017)

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01/04/2018
01/04/2018

53 NOTICE of Filing of Administrative Record and Army Memorandum by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Exhibit Administrative Record, # 2 Exhibit Army memorandum)(Swinton, Nathan) (Entered: 12/13/2017)
54 ORDER re Class Notice. See ORDER for details. Attachments: # 1 Class Notice, # 2 Attachment A to Class Notice. Signed by Judge Ellen S. Huvelle on December 14, 2017.(lcesh1) (Entered: 12/14/2017)
MINUTE ORDER denying, as moot, 35 Motion to Enforce in light of the Court's Order re Class Notice 54 . Signed by Judge Ellen S. Huvelle on December 15, 2017. (lcesh1) (Entered: 12/15/2017)
MINUTE ORDER denying, as moot, 45 Motion for Leave to File in light of the Court's Order re Class Notice 54 . Signed by Judge Ellen S. Huvelle on December 15, 2017. (lcesh1) (Entered: 12/15/2017)
55 ORDER re status reports. See ORDER for details. Signed by Judge Ellen S. Huvelle on December 15, 2017. (lcesh1) (Main Document 55 replaced on 12/19/2017) (zjf). (Entered: 12/15/2017)
Set/Reset Deadlines: Status Report due by 1/3/2018 (gdf) (Entered: 12/19/2017)
56 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Swinton, Nathan) (Entered: 01/03/2018)
57 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Unredacted chart of MAVNI N-426 requests)(Swinton, Nathan) (Entered: 01/03/2018)
MINUTE ORDER granting 57 Sealed Motion for Leave to File Document Under Seal: On consideration of Defendants' Motion to Seal Exhibits Containing Personally Identiﬁable Information, and for good cause shown, it is hereby ORDERED that Defendants' motion is GRANTED. Defendants shall ﬁle a public version of each biweekly Form N-426 certiﬁcation spreadsheet with soldiers' names redacted and a separate version under seal. Signed by Judge Ellen S. Huvelle on January 4, 2018. (AG) (Entered: 01/04/2018)
58 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (This document is SEALED and only available to authorized persons.)(zjf) (Entered: 01/08/2018)

01/11/2018 01/11/2018 01/12/2018 01/17/2018 01/17/2018 01/25/2018 01/31/2018 02/06/2018
02/13/2018
02/14/2018

59 ORDER granting in part and denying in part 39 Motion to Dismiss; denying 39 Motion for Summary Judgment: See ORDER and accompanying OPINION 60 for details. Signed by Judge Ellen S. Huvelle on January 11, 2018. (lcesh1) (Entered: 01/11/2018)
60 MEMORANDUM OPINION supporting ORDER granting in part and denying in part 39 Motion to Dismiss; denying 39 Motion for Summary Judgment: See ORDER and OPINION for details. Signed by Judge Ellen S. Huvelle on January 11, 2018. (lcesh1) (Entered: 01/11/2018)
61 NOTICE of Appearance by Joseph C. Dugan on behalf of All Defendants (Dugan, Joseph) (Entered: 01/12/2018)
62 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Dugan, Joseph) (Entered: 01/17/2018)
63 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Dugan, Joseph) (Entered: 01/17/2018)
64 ANSWER to 33 Amended Complaint by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE.(Swinton, Nathan) (Entered: 01/25/2018)
65 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Lin St. Clair)(Swinton, Nathan) (Entered: 01/31/2018)
66 MOTION TO REFER THE CASE TO THE MAGISTRATE JUDGE FOR CASE MANAGEMENT PURPOSES by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN (Attachments: # 1 Text of Proposed Order)(LoBue, Joseph) (Entered: 02/06/2018)
67 RESPONSE re 66 MOTION TO REFER THE CASE TO THE MAGISTRATE JUDGE FOR CASE MANAGEMENT PURPOSES ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Lin St. Clair, # 2 Declaration Declaration of Major Dana Hollywood, # 3 Exhibit 1/30/18 Email from Nathan M. Swinton to Jennifer Wollenberg)(Swinton, Nathan) (Entered: 02/13/2018)
68 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Lin St. Clair)(Swinton, Nathan) (Entered: 02/14/2018)

02/14/2018 02/20/2018 02/21/2018
02/21/2018 02/21/2018 02/28/2018 02/28/2018 03/07/2018

69 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE re 68 Status Report (This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 02/14/2018)
70 REPLY to opposition to motion re 66 MOTION TO REFER THE CASE TO THE MAGISTRATE JUDGE FOR CASE MANAGEMENT PURPOSES ﬁled by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN. (LoBue, Joseph) (Entered: 02/20/2018)
71 ORDER granting in part and denying in part 66 Motion to Refer the Case to a Magistrate Judge for Case Management Purposes: Plaintiffs' Motion to Refer the Case to the Magistrate Judge For Case Management Purposes, ECF No. 66, is GRANTED IN PART and DENIED IN PART. The case is referred to Magistrate Judge Robin Meriweather for purposes of developing an improved reporting system concerning the Kirwa class, consistent with the Courts November 16, 2017 Order, ECF No. 37 and the reporting system being set up in the related Nio case. See ORDER for further details. Signed by Judge Ellen S. Huvelle on February 21, 2018. (lcesh1) (Entered: 02/21/2018)
72 MOTION for Reconsideration re 59 Order on Motion to Dismiss, Order on Motion for Summary Judgment by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Dugan, Joseph) (Entered: 02/21/2018)
CASE DIRECTLY REFERRED to Magistrate Judge Robin M. Meriweather. (jd) (Entered: 02/22/2018)
73 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Lin St. Clair)(Swinton, Nathan) (Entered: 02/28/2018)
74 SEALED DOCUMENT ﬁled by JAMES MATTIS(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 02/28/2018)
75 Memorandum in opposition to re 72 MOTION for Reconsideration re 59 Order on Motion to Dismiss, Order on Motion for Summary Judgment ﬁled by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(LoBue, Joseph) (Entered: 03/07/2018)

03/08/2018 03/14/2018 03/14/2018 03/14/2018 03/16/2018 03/28/2018 03/28/2018 04/06/2018 04/11/2018 04/11/2018

76 ORDER requesting Joint Reporting Proposal. See Order for details. Signed by Magistrate Judge Robin M. Meriweather on 03/08/2018. (lcrm1) (Entered: 03/08/2018)
77 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Colonel Brian A. Thomas)(Swinton, Nathan) (Entered: 03/14/2018)
78 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 03/14/2018)
79 REPLY to opposition to motion re 72 MOTION for Reconsideration re 59 Order on Motion to Dismiss, Order on Motion for Summary Judgment ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Dugan, Joseph) (Entered: 03/14/2018)
80 NOTICE of Parties' Joint Submission Regarding Status Reports by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN re 76 Order, Set Deadlines (LoBue, Joseph) (Entered: 03/16/2018)
81 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Colonel Brian A. Thomas)(Swinton, Nathan) (Entered: 03/28/2018)
82 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 03/28/2018)
83 MOTION to Clarify Class Certiﬁcation Order by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Dugan, Joseph) (Entered: 04/06/2018)
84 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Lin St. Clair)(Swinton, Nathan) (Entered: 04/11/2018)
85 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 04/11/2018)

04/20/2018 04/25/2018 04/25/2018 04/27/2018
05/09/2018 05/09/2018 05/23/2018
05/23/2018
05/23/2018 05/23/2018

86 Memorandum in opposition to re 83 MOTION to Clarify Class Certiﬁcation Order ﬁled by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN. (Attachments: # 1 Text of Proposed Order)(LoBue, Joseph) (Entered: 04/20/2018)
87 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Swinton, Nathan) (Entered: 04/25/2018)
88 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 04/25/2018)
89 REPLY to opposition to motion re 83 MOTION to Clarify Class Certiﬁcation Order ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Exhibit List, # 2 Exhibit A (1/12/18 e-mail), # 3 Exhibit B (3/15/18 e-mail), # 4 Exhibit C (4/3/18 e-mail), # 5 Exhibit D (Army Memorandum)) (Dugan, Joseph) (Entered: 04/27/2018)
90 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Dugan, Joseph) (Entered: 05/09/2018)
91 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Dugan, Joseph) (Entered: 05/09/2018)
92 MEMORANDUM OPINION AND ORDER denying 72 Motion for Reconsideration: See MEMORANDUM OPINION AND ORDER for details. Signed by Judge Ellen S. Huvelle on May 23, 2018. (lcesh1) Modiﬁed on 5/24/2018, to change document to Opinion (gdf). (Entered: 05/23/2018)
93 MEMORANDUM OPINION AND ORDER denying 83 Motion to Clarify: See MEMORANDUM OPINION AND ORDER for details. Signed by Judge Ellen S. Huvelle on May 23, 2018. (lcesh1) Modiﬁed on 5/24/2018, to change document type to Opinion (gdf). (Entered: 05/23/2018)
94 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Dugan, Joseph) (Entered: 05/23/2018)
95 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Dugan, Joseph) (Entered: 05/23/2018)

06/06/2018

96 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Li St. Clair)(Swinton, Nathan) (Entered: 06/06/2018)

06/06/2018

97 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 06/06/2018)

06/20/2018

98 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Lin St. Clair)(Swinton, Nathan) (Entered: 06/20/2018)

06/20/2018

99 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 06/20/2018)

07/04/2018

100 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration July 3 Declaration of Lin St. Clair, # 2 Declaration June 18 Declaration of Lin St. Clair)(Swinton, Nathan) (Entered: 07/04/2018)

07/04/2018 101 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 07/04/2018)

07/18/2018 102 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Lin St. Clair)(Swinton, Nathan) (Entered: 07/18/2018)

07/18/2018 103 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 07/18/2018)

08/01/2018 104 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Dugan, Joseph) (Entered: 08/01/2018)

08/01/2018 105 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Dugan, Joseph) (Entered: 08/01/2018)

08/15/2018 106 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Lin St. Clair)(Swinton, Nathan) (Entered: 08/15/2018)

08/15/2018 107 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 08/15/2018)

08/29/2018 108 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Exhibit)(Dugan, Joseph) (Entered: 08/29/2018)

08/29/2018

109 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE re 108 Status Report (This document is SEALED and only available to authorized persons.)(Dugan, Joseph) (Entered: 08/29/2018)

08/31/2018 110 MOTION for Protective Order by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Swinton, Nathan) (Entered: 08/31/2018)

09/05/2018

MINUTE ORDER: It is hereby ORDERED that a hearing regarding the pending motions in the following three matters is scheduled for Wednesday, October 3, 2018 at 2:30 p.m. in Courtroom 23A: Nio v. United States Department of Homeland Security, No. 1:17-cv-00998ESH-RMM; Calixto v. United States Department of the Army, No. 1:18cv-01551-ESH; and Kirwa v. United States Department of Defense, No. 1:17-cv-01793-ESH-RMM. It is further ORDERED that in advance of this hearing, the parties in Nio and Calixto shall meet and confer to reach agreement upon a protective order to govern the use of the information reported by defendants in those matters. Signed by Judge Ellen S. Huvelle on September 5, 2018. (lcesh1) (Entered: 09/05/2018)

09/07/2018

Set/Reset Hearings: Motion Hearing set for 10/3/2018 at 02:30 PM in Courtroom 23A before Judge Ellen S. Huvelle. (tj) (Entered: 09/07/2018)

09/07/2018

111 RESPONSE re 110 MOTION for Protective Order ﬁled by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Text of Proposed Order)(Baruch, Douglas) (Entered: 09/07/2018)

09/12/2018 112 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Swinton, Nathan) (Entered: 09/12/2018)

09/12/2018 113 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 09/12/2018)

09/14/2018 114 REPLY to opposition to motion re 110 MOTION for Protective Order ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Swinton, Nathan) (Entered: 09/14/2018)

09/26/2018 115 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Swinton, Nathan) (Entered: 09/26/2018)

09/26/2018 116 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 09/26/2018)

10/02/2018

117 NOTICE OF (1) PROPOSED PROTECTIVE ORDER LANGUAGE AND (2) UPDATES FOR OCTOBER 3 CONFERENCE by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Text of Proposed Order)(Baruch, Douglas) (Entered: 10/02/2018)

10/03/2018

118 NOTICE OF WITHDRAWAL OF APPEARANCE as to MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN. Attorney Joseph J. LoBue terminated. (Baruch, Douglas) (Entered: 10/03/2018)

10/05/2018

119 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 10-3-18; Page Numbers: 1-69. Date of Issuance:10-5-18. Court Reporter/Transcriber Lisa Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 10/26/2018. Redacted Transcript Deadline set for 11/5/2018. Release of Transcript Restriction set for 1/3/2019.(Grifﬁth, Lisa) (Entered: 10/05/2018)

10/05/2018 120 ORDER. Defendants' 110 motion for a protective order is GRANTED in part and DENIED in part. See Order for further details. Signed by Judge Ellen S. Huvelle on October 5, 2018. (lcesh1) (Entered: 10/05/2018)

10/05/2018 121 PROTECTIVE ORDER regarding court-ordered reporting. Signed by Judge Ellen S. Huvelle on October 5, 2018. (lcesh1) (Entered: 10/05/2018)

10/10/2018

MINUTE ORDER. By Friday, October 12, 2018, defendants shall, as ordered in 120 the Court's Order, provide to plaintiffs' counsel the names and last known contact information for MAVNI soldiers who are potential class members in this case and who have been discharged since September 30, 2016. Signed by Judge Ellen S. Huvelle on 10/10/18. (lcesh2) (Entered: 10/10/2018)

10/10/2018 122 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Lin St. Clair)(Swinton, Nathan) (Entered: 10/10/2018)

10/10/2018 123 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 10/10/2018)

10/12/2018 124 NOTICE of Change of Address by Joseph C. Dugan (Dugan, Joseph) (Entered: 10/12/2018)

10/24/2018

125 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Brian A. Thomas)(Swinton, Nathan) (Entered: 10/24/2018)

10/24/2018 126 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 10/24/2018)

11/07/2018 127 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Lin St. Clair)(Swinton, Nathan) (Entered: 11/07/2018)

11/07/2018 128 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 11/07/2018)

11/21/2018 129 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Lin St. Clair)(Swinton, Nathan) (Entered: 11/21/2018)

11/21/2018 130 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 11/21/2018)

12/05/2018 131 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Lin St. Clair)(Swinton, Nathan) (Entered: 12/05/2018)

12/05/2018 132 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 12/05/2018)

12/19/2018 133 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Lin St. Clair)(Swinton, Nathan) (Entered: 12/19/2018)

12/19/2018 134 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 12/19/2018)

12/21/2018

135 Consent MOTION for Extension of Time to File Biweekly Status Report by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Dugan, Joseph) (Entered: 12/21/2018)

12/26/2018

MINUTE ORDER granting 135 Consent Motion for Extension of Time to File Biweekly Status Report. Defendants' next biweekly status report is due January 4, 2019 at 12:00 p.m. Signed by Judge Ellen S. Huvelle on 12/26/18. (lcesh2) (Entered: 12/26/2018)

12/26/2018

136 MOTION to Stay Status Report Deadline in Light of Lapse of Appropriations by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Dugan, Joseph) (Entered: 12/26/2018)

12/26/2018

MINUTE ORDER granting 136 Motion to Stay Status Report Deadline in light of lapse of appropriations. Upon review of defendants' motion, and for good cause shown, it is hereby ordered that defendants' 1/4/19 deadline for their next biweekly status report is stayed pending restoration of appropriations to the Department of Justice, and the next biweekly status report shall be due on the later of 1/4/19 at 12:00 p.m. or at 12:00 p.m. the next Wednesday following the restoration of such appropriations. Signed by Judge Ellen S. Huvelle on 12/26/18. (lcesh2) (Entered: 12/26/2018)

12/27/2018

Set/Reset Deadlines: Status Report due by 1/4/2019 (gdf) (Entered: 12/27/2018)

01/28/2019 137 NOTICE of Restoration of Appropriations by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE re Order on Motion to Stay,, (Dugan, Joseph) (Entered: 01/28/2019)

01/29/2019 138 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Dugan, Joseph) (Entered: 01/29/2019)

01/29/2019

139 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE re 138 Status Report (This document is SEALED and only available to authorized persons.)(Dugan, Joseph) (Entered: 01/29/2019)

02/13/2019 140 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Dugan, Joseph) (Entered: 02/13/2019)

02/13/2019

141 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE re 140 Status Report (This document is SEALED and only available to authorized persons.)(Dugan, Joseph) (Entered: 02/13/2019)

02/27/2019 142 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Dugan, Joseph) (Entered: 02/27/2019)

02/27/2019

143 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE re 142 Status Report (This document is SEALED and only available to authorized persons.)(Dugan, Joseph) (Entered: 02/27/2019)

03/04/2019 144 NOTICE OF SUBSTITUTION OF COUNSEL by Michael Fraser Knapp on behalf of All Defendants Substituting for attorney Joseph C. Dugan (Knapp, Michael) (Entered: 03/04/2019)

03/12/2019 145 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Knapp, Michael) (Entered: 03/12/2019)

03/12/2019

146 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE re 145 Status Report (This document is SEALED and only available to authorized persons.)(Knapp, Michael) (Entered: 03/12/2019)

03/27/2019 147 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Knapp, Michael) (Entered: 03/27/2019)

03/27/2019

148 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE re 147 Status Report (This document is SEALED and only available to authorized persons.)(Knapp, Michael) (Entered: 03/27/2019)

04/10/2019 149 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Knapp, Michael) (Entered: 04/10/2019)

04/10/2019

150 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE re 149 Status Report (This document is SEALED and only available to authorized persons.)(Knapp, Michael) (Entered: 04/10/2019)

04/24/2019 151 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Knapp, Michael) (Entered: 04/24/2019)

04/24/2019

152 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE re 151 Status Report (This document is SEALED and only available to authorized persons.)(Knapp, Michael) (Entered: 04/24/2019)

05/08/2019 153 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Knapp, Michael) (Entered: 05/08/2019)

05/08/2019

154 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE re 153 Status Report (This document is SEALED and only available to authorized persons.)(Knapp, Michael) (Entered: 05/08/2019)

05/22/2019 155 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Knapp, Michael) (Entered: 05/22/2019)

05/22/2019

156 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE re 155 Status Report (This document is SEALED and only available to authorized persons.)(Knapp, Michael) (Entered: 05/22/2019)

05/23/2019

MINUTE ORDER. This matter is hereby set for a status conference on June 17, 2019 at 1:30 p.m. By close of business on June 10, 2019, the parties shall ﬁle a joint status report setting forth a plan for bringing this case to a close. Signed by Judge Ellen S. Huvelle on 5/23/19. (lcesh2) (Entered: 05/23/2019)

05/23/2019

Set/Reset Deadlines/Hearings: Joint Status Report due by 6/10/2019. Status Conference set for 6/17/2019 at 1:30 PM in Courtroom 23A before Judge Ellen S. Huvelle. (gdf) (Entered: 05/29/2019)

06/05/2019 157 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Knapp, Michael) (Entered: 06/05/2019)

06/05/2019

158 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE re 157 Status Report (This document is SEALED and only available to authorized persons.)(Knapp, Michael) (Entered: 06/05/2019)

06/10/2019 159 Joint STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Knapp, Michael) (Entered: 06/10/2019)

06/17/2019

Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference held on 6/17/2019. Order Forthcoming. (Court Reporter Lisa Grifﬁth.) (mac) (Entered: 06/17/2019)

06/19/2019 160 STATUS REPORT by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Knapp, Michael) (Entered: 06/19/2019)

06/19/2019

161 SEALED DOCUMENT ﬁled by JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE re 160 Status Report (This document is SEALED and only available to authorized persons.)(Knapp, Michael) (Entered: 06/19/2019)

06/25/2019 162 NOTICE OF SUBSTITUTION OF COUNSEL by Daniel D. Mauler on behalf of All Defendants Substituting for attorney Michael F. Knapp (Mauler, Daniel) (Entered: 06/25/2019)

06/26/2019

MINUTE ORDER. Pursuant to the parties' agreement during the 6/17/19 status conference, the parties are ORDERED to ﬁle a joint status report on or before 7/30/19. The joint status report shall address the parties' progress in developing a plan for bringing this case to a close. Signed by Judge Ellen S. Huvelle on 6/26/19. (lcesh2) (Entered: 06/26/2019)

06/26/2019

Set/Reset Deadlines: Joint Status Report due by 7/30/2019. (gdf) (Entered: 06/26/2019)

07/03/2019 163 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Mauler, Daniel) (Entered: 07/03/2019)

07/03/2019

164 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 163 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 07/03/2019)

07/17/2019 165 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Mauler, Daniel) (Entered: 07/17/2019)

07/17/2019

166 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 165 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 07/17/2019)

07/19/2019

167 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 6-17-19; Page Numbers: 1-59. Date of Issuance:7-19-19. Court Reporter/Transcriber Lisa Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 8/9/2019. Redacted Transcript Deadline set for 8/19/2019. Release of Transcript Restriction set for 10/17/2019.(Grifﬁth, Lisa) (Entered: 07/19/2019)
07/22/2019 168 NOTICE of Change of Address by Jennifer M. Wollenberg (Wollenberg, Jennifer) (Entered: 07/22/2019)
07/22/2019 169 NOTICE of Change of Address by Douglas W. Baruch (Baruch, Douglas) (Entered: 07/22/2019)
07/30/2019 170 Joint STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Mauler, Daniel) (Entered: 07/30/2019)

07/31/2019 171 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Exhibit (Declaration of Lin H. St. Clair))(Mauler, Daniel) (Entered: 07/31/2019)

07/31/2019

172 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 171 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 07/31/2019)

07/31/2019

MINUTE ORDER. Pursuant to the parties' 170 joint status report of 7/30/19, it is HEREBY ORDERED that the parties shall ﬁle another joint status report on or before 8/30/19 at 12:00 p.m. advising the Court of the parties' progress in discussions regarding the status of this case. Signed by Judge Ellen S. Huvelle on 7/31/19. (lcesh2) (Entered: 07/31/2019)

07/31/2019

Set/Reset Deadlines: Joint Status Report due by 8/30/2019. (gdf) (Entered: 08/01/2019)

08/14/2019 173 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Exhibit)(Mauler, Daniel) (Entered: 08/14/2019)

08/14/2019

174 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 173 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 08/14/2019)

08/28/2019 175 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Exhibit)(Mauler, Daniel) (Entered: 08/28/2019)

08/28/2019

176 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 175 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 08/28/2019)

08/30/2019 177 Joint STATUS REPORT (Joint Status Report on Settlement Negotiations) by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Mauler, Daniel) (Entered: 08/30/2019)

08/30/2019

MINUTE ORDER re 177 Joint Status Report: Pursuant to the parties' 177 joint status report of 8/30/2019, it is HEREBY ORDERED that the parties shall ﬁle another joint status report on or before 10/30/19 advising the Court of the parties' progress in discussions regarding the status of this case. Signed by Judge Ellen S. Huvelle on August 30, 2019. (AG) (Entered: 08/30/2019)

08/30/2019

Set/Reset Deadlines: Joint Status Report due by 10/30/2019 (zgdf) (Entered: 08/30/2019)

09/03/2019 178 NOTICE of Appearance by Kayla M.S. Kaplan on behalf of All Plaintiffs (Kaplan, Kayla) (Entered: 09/03/2019)

09/05/2019 179 NOTICE of Appearance by Neaha P. Raol on behalf of All Plaintiffs (Raol, Neaha) (Entered: 09/05/2019)

09/11/2019 180 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Exhibit)(Mauler, Daniel) (Entered: 09/11/2019)

09/11/2019

181 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 180 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 09/11/2019)

09/25/2019 182 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Mauler, Daniel) (Entered: 09/25/2019)

09/25/2019

183 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 182 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 09/25/2019)

10/09/2019 184 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Exhibit)(Mauler, Daniel) (Entered: 10/09/2019)

10/09/2019

185 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 184 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 10/09/2019)

10/09/2019 186 AFFIDAVIT re 184 Status Report by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Mauler, Daniel) (Entered: 10/09/2019)

10/23/2019 187 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Afﬁdavit)(Mauler, Daniel) (Entered: 10/23/2019)

10/23/2019

188 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 187 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 10/23/2019)

10/30/2019 189 Joint STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Mauler, Daniel) (Entered: 10/30/2019)

11/04/2019

190 ORDER. A joint status report is due by January 10, 2020, and a joint status conference with Case Nos. 17-cv-998 and 18-cv-1551 is set for Tuesday, January 21, 2020, at 10:30 a.m. in Courtroom 23A. See Order for details. Signed by Judge Ellen S. Huvelle on November 4, 2019. (lcmm) (Entered: 11/04/2019)

11/04/2019

Set/Reset Deadlines/Hearings: Joint Status Report due by 1/20/2020. Status Conference set for 1/21/2020 at 10:30 AM in Courtroom 23A before Judge Ellen S. Huvelle. (zjch) (Entered: 11/05/2019)

11/04/2019

Set/Reset Deadlines/Hearings: Joint Status Report due by 1/10/2020 (zjch) (Entered: 11/05/2019)

11/06/2019 191 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Mauler, Daniel) (Entered: 11/06/2019)

11/06/2019

192 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 191 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 11/06/2019)

11/07/2019 193 NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 1:19-cv-3351. (Wollenberg, Jennifer) (Entered: 11/07/2019)

11/20/2019 194 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Exhibit)(Mauler, Daniel) (Entered: 11/20/2019)

11/20/2019

195 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 194 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 11/20/2019)

12/04/2019 196 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Mauler, Daniel) (Entered: 12/04/2019)

12/04/2019

197 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 196 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 12/04/2019)

12/13/2019

MINUTE ORDER REFERRING CASE for Mediation to Magistrate Judge Michael Harvey: It is hereby ORDERED that this matter is referred to Magistrate Judge Harvey for mediation. On any ﬁling related to the mediation, the parties shall place the initials of Judge Ellen Segal Huvelle and the initials of Magistrate Judge Harvey following the case number in the caption. On any other ﬁlings in this case, the parties shall only place the initials of Judge Ellen Segal Huvelle after the case number. Signed by Judge Ellen S. Huvelle on December 13, 2019. (AG) (Entered: 12/13/2019)

12/13/2019

CASE DIRECTLY REFERRED to Magistrate Judge G. Michael Harvey for mediation. (zsb) (Entered: 12/16/2019)

12/16/2019 198 ORDER Status Conference set for 1/13/2020 at 11:00 AM in Courtroom 6 before Magistrate Judge G. Michael Harvey.. Signed by Magistrate Judge G. Michael Harvey on 12/16/19. (MFB) (Entered: 12/16/2019)

12/18/2019 199 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Mauler, Daniel) (Entered: 12/18/2019)

12/18/2019

200 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 199 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 12/18/2019)

01/02/2020 201 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Mauler, Daniel) (Entered: 01/02/2020)

01/02/2020

202 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 201 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 01/02/2020)

01/13/2020

Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: Status Conference held on 1/13/2020. Minute Order to be issued by the Court stating future hearings and deadlines. Court Reporter: N/A Hearing was not on record. Plaintiffs' Counsel: Douglas Baruch, Jennifer Wollenberg, Kayla Kaplan, Neaha Raol, and Ben Mendelson. Defendants' Counsel: Nathan Swinton, Daniel Mauler, and Michael Fucci. (zpt). (Entered: 01/13/2020)

01/13/2020

203 ORDER. See Order for additional deadlines and instructions. Settlement Conference set for 2/24/2020 at 10:00 AM in Courtroom 6 before Magistrate Judge G. Michael Harvey. Telephone Conference set for 1/17/2020 at 04:00 PM in Courtroom 6 before Magistrate Judge G. Michael Harvey. Settlement Conference set for 3/3/2020 at 10:00 AM in Courtroom 6 before Magistrate Judge G. Michael Harvey. Settlement Conference set for 3/5/2020 at 10:00 AM in Courtroom 6 before Magistrate Judge G. Michael Harvey.. Signed by Magistrate Judge G. Michael Harvey on 1/13/20. (MFB) (Entered: 01/13/2020)

01/15/2020 204 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Exhibit)(Mauler, Daniel) (Entered: 01/15/2020)

01/15/2020

205 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 204 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 01/15/2020)

01/15/2020 206 AFFIDAVIT re 204 Status Report (Declaration in Support of Status Report) by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Mauler, Daniel) (Entered: 01/15/2020)

01/15/2020

MINUTE ORDER: With the parties' consent, it is hereby ORDERED that the status hearing scheduled on January 21, 2020, is hereby VACATED. Signed by Judge Ellen S. Huvelle on January 15, 2020. (lcmm) (Entered: 01/15/2020)

01/16/2020

NOTICE OF ERROR re 205 Sealed Document; emailed to dan.mauler@usdoj.gov, cc'd 7 associated attorneys -- The PDF ﬁle you docketed contained errors: 1. Do Not Reﬁle. Please remember that all ﬁlings must comply with LcvR 5.1(d) Form of Documents. (ztd, ) (Entered: 01/16/2020)

01/17/2020

MINUTE ORDER: With the parties' consent, it is hereby ORDERED that the requirement that the parties ﬁle a joint status report on Monday, January 20, 2020, is hereby VACATED. Signed by Judge Ellen S. Huvelle on January 17, 2020. (lcmm) (Entered: 01/17/2020)

01/29/2020 207 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Mauler, Daniel) (Entered: 01/29/2020)

01/29/2020

208 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 207 Status Report (This document is SEALED and only available to authorized persons.)(Mauler, Daniel) (Entered: 01/29/2020)

02/12/2020 209 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration Declaration of Lin St. Clair)(Swinton, Nathan) (Entered: 02/12/2020)

02/12/2020 210 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.)(Swinton, Nathan) (Entered: 02/12/2020)

02/24/2020

Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: Settlement Conference held on 2/24/2020. (MFB) (Entered: 02/25/2020)

02/26/2020 211 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Swinton, Nathan) (Entered: 02/26/2020)

02/26/2020 212 AFFIDAVIT re 211 Status Report by MARK T. ESPER, JAMES MATTIS, UNITED STATES DEPARTMENT OF DEFENSE. (Swinton, Nathan) (Entered: 02/26/2020)

02/26/2020

213 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit)(Swinton, Nathan) (Entered: 02/26/2020)

03/05/2020

Set/Reset Hearings: Settlement Conference set for 3/30/2020 at 10:00 AM in Courtroom 6 before Magistrate Judge G. Michael Harvey. (MFB) (Entered: 03/05/2020)

03/11/2020 214 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Swinton, Nathan) (Entered: 03/11/2020)

03/11/2020

215 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit)(Swinton, Nathan) (Entered: 03/11/2020)

03/24/2020

Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: Telephone Conference held on 3/24/2020. (MFB) (Entered: 03/24/2020)

03/25/2020 216 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Swinton, Nathan) (Entered: 03/25/2020)

03/25/2020

217 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit)(Swinton, Nathan) (Entered: 03/25/2020)

04/08/2020 218 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Swinton, Nathan) (Entered: 04/08/2020)

04/08/2020

219 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit)(Swinton, Nathan) (Entered: 04/08/2020)

04/21/2020

Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: Telephone Conference held on 4/21/2020. (MFB) (Entered: 04/22/2020)

04/22/2020 220 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Swinton, Nathan) (Entered: 04/22/2020)

04/22/2020

221 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE re 220 Status Report (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit)(Swinton, Nathan) (Entered: 04/22/2020)

04/22/2020

Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: Telephone Conference held on 4/22/2020. (MFB) (Entered: 04/23/2020)

04/28/2020

Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: Telephone Conference held on 4/28/2020. (MFB) (Entered: 04/29/2020)

04/30/2020 222 NOTICE by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Declaration)(Swinton, Nathan) (Entered: 04/30/2020)

05/06/2020 223 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Swinton, Nathan) (Entered: 05/06/2020)

05/06/2020

224 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit)(Swinton, Nathan) (Entered: 05/06/2020)

05/20/2020

225 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit)(Swinton, Nathan) (Entered: 05/20/2020)

05/20/2020 226 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Swinton, Nathan) (Entered: 05/20/2020)

05/28/2020

Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: Telephone Conference held on 5/28/2020. (MFB) (Entered: 05/28/2020)

06/03/2020 227 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Swinton, Nathan) (Entered: 06/03/2020)

06/03/2020

228 SEALED DOCUMENT ﬁled by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE(This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit)(Swinton, Nathan) (Entered: 06/03/2020)

06/03/2020

Minute Entry for proceedings held before Magistrate Judge G. Michael Harvey: Telephone Conference held on 6/3/2020. (MFB) (Entered: 06/04/2020)

06/08/2020

229 ORDER amending defendants' reporting requirements, setting the next report deadline for July 27, 2020, and setting the next status conference for August 5, 2020, at 2 p.m. See Order for details. Signed by Judge Ellen S. Huvelle on June 8, 2020. (lcmm) (Entered: 06/08/2020)

06/08/2020

Set/Reset Deadlines/Hearings: Status Report due by 7/27/2020. Status Conference set for 8/5/2020 at 02:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (zgdf) (Entered: 06/10/2020)

07/24/2020 230 STATUS REPORT by MARK T. ESPER, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Declaration)(Swinton, Nathan) (Entered: 07/24/2020)

07/28/2020

MINUTE ORDER: It is hereby ORDERED that the status conference set for August 5, 2020, is VACATED. The next status conference is set for Wednesday, July 29, 2020, at 2:30 p.m. Signed by Judge Ellen S. Huvelle on July 28, 2020. (lcmm) (Entered: 07/28/2020)

07/28/2020

Set/Reset Hearings: Status Conference set for 7/29/2020 at 02:30 PM in Telephonic/VTC before Judge Ellen S. Huvelle. (zgdf) (Entered: 07/29/2020)

07/29/2020

Minute Entry for Video/Telephonic Status Conference proceedings held on 7/29/2020 before Judge Ellen S. Huvelle. Joint Status Report due by 8/5/2020. (Court Reporter Lisa Grifﬁth) (zgdf) (Entered: 07/29/2020)

07/29/2020

231 ORDER setting ﬁling deadline. The parties shall ﬁle a joint status report setting forth their joint proposal for resolving the case by Wednesday, August 5, 2020. Signed by Judge Ellen S. Huvelle on July 29, 2020. (lcmm) (Entered: 07/29/2020)

07/31/2020 232 NOTICE OF SUBSTITUTION OF COUNSEL by Liam Holland on behalf of All Defendants Substituting for attorney Nathan Michael Swinton (Holland, Liam) (Entered: 07/31/2020)

08/05/2020 233 Joint STATUS REPORT by MAHLON KIRWA, SANTHOSH MEENHALLIMATH, ASHOK VISWANATHAN. (Wollenberg, Jennifer) (Entered: 08/05/2020)

08/07/2020

234 TRANSCRIPT OF PROCEEDINGS before Judge Ellen S. Huvelle held on 7-29-2020; Page Numbers: 1-32. Date of Issuance:8-7-2020. Court Reporter/Transcriber Lisa W Grifﬁth, Telephone number (202) 354-3247, Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced abo ve. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 8/28/2020. Redacted Transcript Deadline set for 9/7/2020. Release of Transcript Restriction set for 11/5/2020.(Grifﬁth, Lisa) (Entered: 08/07/2020)

 
 Case 1:17-cv-01793 Document 1 Filed 09/01/17 Page 1 of 32

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAHLON KIRWA 400 Magnolia St. Orangeburg, SC 29115,
SANTHOSH MEENHALLIMATH 8080 Eden Rd., Apt. 347 Eden Prairie, MN 55344,
ASHOK VISWANATHAN 14025 Chestnut Dr., Apt. F Eden Prairie, MN 55347,
on behalf of themselves and those similarly situated,
PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF DEFENSE 1000 Defense Pentagon Washington, DC 20301,
JAMES MATTIS, in his official capacity as Secretary of Defense of the United States Department of Defense 1000 Defense Pentagon Washington, DC 20301,
DEFENDANTS.

) ) ) ) ) No. ) ) ) COMPLAINT AND PRAYER FOR ) DECLARATORY, PRELIMINARY ) AND PERMANENT INJUNCTIVE, ) ADMINISTRATIVE PROCEDURE ) ACT, AND MANDAMUS RELIEF ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

1

Case 1:17-cv-01793 Document 1 Filed 09/01/17 Page 2 of 32
COMPLAINT 1. Plaintiffs bring this action on behalf of themselves and similarly-situated United States soldiers who are the victims of a misguided and unlawful attempt to deprive them of their right to seek United States citizenship. As non-citizen soldiers serving honorably during wartime, Plaintiffs have an absolute statutory right to apply to become naturalized U.S. citizens, but Defendants are refusing to certify their naturalization application eligibility as required by law, leaving these soldiers to languish in immigration limbo, notwithstanding their ongoing military service to this Nation. Defendants’ actions are contrary to law and lack the honor, loyalty, and respect that Defendants owe to these Plaintiff-soldiers. 2. Defendants recruited and enlisted each Plaintiff into the United States Army under the Military Accessions Vital to the National Interest (“MAVNI”) program, a program under which non-U.S. citizens with critical language and/or medical skills deemed by the Department of Defense (“DoD”) to be “vital to the national interest” serve in the United States Armed Forces. DoD recruits individuals into this “vital” program, in part, by promising enlistees a “fast track” to U.S. citizenship. 3. Each MAVNI Plaintiff here is serving in the Selected Reserve of the Ready Reserve (“Selected Reserve”) and is entitled to apply for naturalization under federal law, including 8 U.S.C. § 1440. An initial step in the naturalization application process is the certification of Plaintiffs’ honorable service in the Selected Reserve. The Department of Homeland Security (“DHS”), which is the federal agency responsible for processing and adjudicating all naturalization applications, requires these certifications to be made via DHS Form N-426, a form specifically designated for this purpose. Completing the N-426 certification is a ministerial task. The service member’s military branch simply indicates – by checking a box
2

Case 1:17-cv-01793 Document 1 Filed 09/01/17 Page 3 of 32
“yes” or “no” – whether the soldier (e.g., a Plaintiff or a Class member) is serving honorably based on the existing military record for that soldier. The military has performed this ministerial task thousands of times before without complication or ordeal, including approximately 500 times in recent months alone.
4. Due to their status as soldiers serving in the Selected Reserve, Plaintiffs and the Class satisfy the threshold legal condition necessary to obtain the Form N-426 certifications. The federal statute enabling naturalization for these soldiers, 8 U.S.C. § 1440, is clear and unambiguous:
[a]ny person who, while an alien or a noncitizen national of the United States, has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States . . . during any . . . period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict . . . may be naturalized as provided in this section . . . . 8 U.S.C. § 1440(a) (emphasis added). 5. Notwithstanding this express and well-established federal law, Defendants have implemented a new policy by which they are refusing to issue Form N-426s to Plaintiffs and other similarly-situated eligible soldiers on the grounds that the soldiers have not yet served in an active-duty status. Defendants’ policy of withholding issuance of N-426s has no lawful basis and contravenes their duty to act. And Defendants have implemented this policy in blatant disregard for the immense suffering and mounting harm that their actions have caused to soldiers under their command. 6. Defendants’ new policy of denying N-426 certifications to Plaintiffs and other Selected Reservists stands in stark contrast to the prior policy. Until recently – i.e., before DoD instituted this new policy and before it began otherwise interfering with the naturalization
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process for MAVNI applicants – soldiers in Plaintiffs’ position sought (and obtained)

naturalization through a well-established and orderly process that was consistent with the law:

STEP ONE:

MAVNI soldiers obtained N-426 certifications of their

honorable service from the military,

STEP TWO: DHS expedited the naturalization paperwork, and

STEP THREE: DHS adjudicated the applications using the same

fundamental citizenship factors that apply to all persons

seeking to be naturalized.

7. That once orderly, lawful, and straightforward process – applied to thousands of

soldiers in years past – has morphed into a process characterized by chaos and unlawful DoD

conduct.

8. In a related action pending in this Court, Nio, et al. v. United States Department of

Homeland Security, et al., No. 17-cv-998-ESH (D.D.C.) (the “Nio Action”), other MAVNI

soldiers (who have been issued N-426 certifications based on their Selected Reserve service) are

challenging unlawful actions by DoD and others affecting STEP TWO and STEP THREE

described above. This action focuses on STEP ONE – namely, the certification of honorable

service itself by DoD. Without that certification – the ministerial action which DoD unlawfully

is withholding – Plaintiffs and similarly-situated soldiers who are serving honorably in the

military cannot file for naturalization and thus advance to STEP TWO.

9. Defendants have no legal authority over the implementation or enforcement of the

immigration and naturalization laws of the United States, or over the adjudication of

naturalization applications. Yet, Defendants have inserted themselves into the naturalization

process by erecting a roadblock to prevent Plaintiffs and similarly-situated soldiers from

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applying for naturalization by denying them the N-426 documentation that these soldiers are entitled to receive as a matter of law.
10. Defendants’ refusal to furnish certifications to these Selected Reservists is alarming, as their position is so directly in violation of federal law, regulations, and other promulgated rules. Indeed, Defendants have admitted that DHS – the agency empowered by Congress to administer and enforce the naturalization laws – disagrees with DoD’s action and has determined that DoD’s policy is contrary to the statute. In actuality, Defendants’ conduct is nothing more than a poorly-thought-out and thinly-veiled effort to deny U.S. citizenship to certain MAVNI soldiers because DoD’s own views about the MAVNI program have changed over time.
11. To be clear, this Complaint does not involve or implicate the definition of “honorable” or “honorable service,” but instead challenges Defendants’ unlawful refusal to fulfill its ministerial duty by withholding the issuance of certified Form N-426s for soldiers who are eligible and entitled to receive such forms under the plain and clear terms of 8 U.S.C. § 1440.
12. Accordingly, on behalf of themselves and a class of all similarly-situated individuals, Plaintiffs seek Administrative Procedure Act (“APA”), mandamus, declaratory, and preliminary and permanent injunctive relief to compel and enjoin Defendants to comply with their ministerial duties pursuant to federal law, including 8 U.S.C. § 1440, to certify Plaintiffs’ honorable service as members of the Selected Reserve.
RELATED LAWSUIT 13. In the Nio Action, commenced on May 24, 2017, ten individuals (the “Nio Plaintiffs”) brought suit against DoD, DHS, United States Citizenship and Immigration Services (“USCIS”), and others (collectively, the “Nio Defendants”) alleging that the Nio Defendants
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were improperly depriving the Nio Plaintiffs of their lawful opportunity and right to become naturalized United States citizens. Specifically, the Nio Plaintiffs allege that the Nio Defendants have impeded and delayed the adjudication of their naturalization applications by holding their applications and/or imposing on them additional citizenship qualifications and criteria that have no basis in law, particularly “enhanced DoD security checks.” The Nio Action currently is pending before this Court.
14. This Complaint involves common issues of fact and arises out of the same core events as the Nio Action. For example, both lawsuits involve DoD’s unlawful interference in the naturalization process of Selected Reservists recruited through the MAVNI program. Notably, if Plaintiffs receive the honorable service certifications to which they are entitled, allowing them to apply for naturalization, they will be placed into the same circumstances as the Nio Plaintiffs and should fall within the scope of the proposed class in the Nio Action. This action also involves the same issues of injury and harm to the respective plaintiffs and classes. In both cases, applications for naturalization for MAVNI soldiers are being delayed, resulting in similar or identical injuries, harms, and difficulties. Finally, Defendant officials have admitted that DoD is considering applying its “active-duty” service rule to invalidate and revoke the N-426 forms that already have been issued to the plaintiffs and proposed class in the Nio Action.
JURISDICTION 15. This action arises under section 329 of the Immigration and Nationality Act of 1952 (“INA”), codified at 8 U.S.C. § 1440. This Court has jurisdiction over this action under 28 U.S.C. § 1331 (federal question) and the APA, 5 U.S.C. § 701 et seq.
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VENUE 16. Venue is proper in the Court under 28 U.S.C. § 1391(e) because the individual Defendant is an officer of the United States acting in his official capacities, and the United States Department of Defense is present in this district. Further, the individual Defendant performs official duties in Washington, D.C.
PARTIES 17. Plaintiff Mahlon Kirwa resides in Orangeburg, South Carolina. Mr. Kirwa enlisted in the Selected Reserve through the MAVNI program in December 2015 and serves with the U.S. Army’s 414th Chemical Company in Orangeburg, South Carolina. 18. Plaintiff Santhosh Meenhallimath resides in Eden Prairie, Minnesota. Mr. Meenhallimath enlisted in the Selected Reserve through the MAVNI program in February 2016 and serves with the U.S. Army’s 353rd Transportation Company in Buffalo, Minnesota. 19. Plaintiff Ashok Viswanathan resides in Eden Prairie, Minnesota. Mr. Viswanathan enlisted in the Selected Reserve through the MAVNI program in June 2016 and serves with the U.S. Army’s 353rd Transportation Company in Buffalo, Minnesota. 20. Defendant United States Department of Defense is responsible for the overall administration of military policy, which includes the MAVNI program. 21. Defendant James Mattis is sued in his official capacity as Secretary of Defense of the United States Department of Defense. As Secretary of Defense, Gen. Mattis is responsible for the overall administration of DoD, which includes the MAVNI program.
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BACKGROUND AND FACTS The MAVNI Program and Plaintiffs’ Service Commitments 22. Typically, U.S. Armed Forces enlistees must meet U.S. citizenship or permanent residence requirements. 10 U.S.C. § 504(b). However, 10 U.S.C. § 504(b)(2) authorizes the Secretary of Defense and the Secretaries of the military service departments to enlist certain non-U.S. citizens and non-permanent residents if enlistment of such individuals is “vital to the national interest.” Under this authority, DoD initiated the MAVNI program in 2008 and the program has continued to operate through the present, with brief interruptions and enlistment suspension periods. 23. The MAVNI program is designed to attract two types of recruits into the military: (a) health care professionals and (b) individuals who possess critical foreign language skills. DoD officials acknowledge that soldiers with these skills “are necessary to sustain effective military operations.” 24. Under MAVNI, DoD encouraged qualified individuals to enlist, touting the opportunity of an “expedited” path to U.S. citizenship. DoD contractually mandated that MAVNI enlistees – including Plaintiffs – apply for citizenship “as soon as the [service branch (e.g., the Army)] has certified [the MAVNI soldier’s] honorable service.” This citizenship opportunity was a powerful enticement to Plaintiffs and other such qualified individuals who contemplated MAVNI enlistment. 25. Plaintiffs are soldiers who possess the skills that DoD has deemed “vital to the national interest.” They enlisted under the MAVNI program, signed MAVNI enlistment contracts, and are serving honorably in the Selected Reserve. Each Plaintiff has taken the military service oath. Each Plaintiff’s enlistment contract obligates him to eight years of service
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in the Army Reserve, six years of which must be served in the Selected Reserve. Each Plaintiff is assigned to a U.S. Army Selected Reserve unit, and each has served with his unit by participating in multiple Selected Reserve drill periods.
26. The commitment that each Plaintiff has undertaken to serve as a soldier in the U.S. Army Reserve is serious and substantial. As the standard MAVNI Army Reserve enlistment contract states, an agreement to enlist “is more than an employment agreement. It effects a change in status from civilian to military member of the Armed Forces.” As such, per the Enlistment/Reenlistment Document Armed Forces of the United States (DD Form 4/1), soldiers (a) are “[r]equired to obey all lawful orders and perform all assigned duties,” (b) are “[s]ubject to the military justice system” and, among other things, “may be tried by military courts-martial,” (c) may be “[r]equired upon order to serve in combat or other hazardous situations,” and (d) must otherwise “meet acceptable military standards” such that any failure to meet their service obligations as Selected Reservists can result in demotion and/or discharge from the service under other than honorable conditions.
27. As members of the U.S. military, Plaintiffs may be required to compromise individual liberties that are considered fundamental in ordinary civilian American society. As the enlistment contracts provide, a service member’s freedom of religious expression may be curtailed: “I understand that the Army cannot guarantee accommodation of religious practices, and that religious accommodations may be modified or revoked based on changes in military necessity.” A service member’s freedom of speech, expression, and association also may be curtailed. Consequently, prior to enlistment, the Army provides recruits with USMEPCOM Form 601-23-4 – “Restrictions on Personal Conduct in the Armed Forces” – which specifies that military service entails behavioral limitations not applicable to civilians in America:
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Military life is fundamentally different from civilian life. The military has its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society. These are necessary because military units and personnel must maintain high standards for morale, good order and discipline, and unit cohesion that are essential for combat effectiveness.
28. As a member of the Selected Reserve, each soldier “may at any time, and without
[his/her] consent, be ordered to active duty to complete a total of 24 months of active duty.” In
times of war or national emergency declared by Congress, these soldiers may, without their
consent, “be ordered to serve on active duty for the entire period of the war or emergency and for
six (6) months after its end.” As members of the Selected Reserve, these soldiers may, without
their consent, be ordered to 365 days of consecutive active duty whenever “the President
determines that it is necessary to augment the active forces for any operational mission or for
certain emergencies.”
The Applicable Statutory and Regulatory Framework
29. The statutory and regulatory framework applicable to Plaintiffs is simple and
clear. 8 U.S.C. § 1440(a), provides that:
[a]ny person who, while an alien or a noncitizen national of the United States, has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States . . . during any . . . period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force[1] . . . may be naturalized as provided in this section . . . .
1 On July 3, 2002, the President determined that the military is engaged in armed conflict. Exec. Order No. 13269, 67 Fed. Reg. 45,287 (July 3, 2002). Executive Order No. 13269 has remained in effect through the present.
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30. The key language here is that certain non-U.S. citizens qualify for naturalization under this section with honorable service “as a member of the Selected Reserve of the Ready Reserve or in an active-duty status.” 8 U.S.C. § 1440(a) (emphasis added). This disjunctive language of the statute is clear and unequivocal: honorable service in the Selected Reserve is an independent basis for naturalization. Stated differently, naturalization under this statute is not dependent on an individual performing active-duty service.
31. The history of the statute reinforces the separate and independent import of these two clauses. While the prior version of the statute limited naturalization to those serving in an active-duty status, the National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, 117 Stat. 1392, 1693 (2003) amended the statute to add those serving as members of the Selected Reserve. Thus, Congress made clear that naturalization is available based on either service as a member of the Selected Reserve or service in active-duty status.
32. DHS, which administers the naturalization laws and adjudicates naturalization applications under Section 1440(a), reads and applies this provision in the same way. DHS’s final rulemaking for this statute confirms that it was amended in 2003 to include “not only [] individuals who served honorably in an active duty status . . . but also [] individuals who have served honorably as members of the Selected Reserve. . . .” 75 Fed. Reg. 2785-01 (2010) provides (with emphasis added):
[T]his final rule extends eligibility for naturalization to include those individuals who have served honorably in the U.S. Armed Forces either in an active duty status or as a member of the Selected Reserve of the Ready Reserve. See revised 8 CFR 329.2(a). In addition, this rule amends the title of 8 CFR part 329 to include service in the Selected Reserve of the Ready Reserve. Currently, the title only lists active duty service as a basis for naturalization where service occurred during specified periods of hostilities. Like Section 1440, the disjunctive “either ... or” is unequivocal.
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33. The regulations implementing 8 U.S.C. § 1440 are located at 8 C.F.R. Part 329, entitled “SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: PERSONS WITH ACTIVE DUTY OR CERTAIN READY RESERVE SERVICE IN THE UNITED STATES ARMED FORCES DURING SPECIFIED PERIODS OF HOSTILITIES.” Section 329.2 provides that a service member is eligible for naturalization under 8 U.S.C. § 1440 upon establishing that 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 in the Armed Forces of the United States during . . . [a]ny other period as may be designated by the President in an Executive Order pursuant to section 329(a) of the Act . . . .” Like the statute, the disjunctive language of DHS’s legislative rules under Section 329.2(a) could not be clearer. Service as a member of the Selected Reserve and service in an active-duty status provide alternative paths to citizenship under Section 1440.
34. Volume 12 of the USCIS Policy Manual, the USCIS’s centralized repository for its immigration policies, explains the laws and policies that govern United States citizenship and naturalization, and further confirms that service in the Selected Reserve counts as qualifying service under Section 1440. USCIS Policy Manual Volume 12, Part I, Chapter 3, current as of July 26, 2017 (“One day of qualifying service is sufficient in establishing eligibility.”).
35. Thus, just as one day of active-duty service is sufficient for naturalization eligibility, so is one day of Selected Reserve service. On July 7, 2017, DHS admitted this directly in sworn testimony to this Court (emphasis added): “As members of the U.S. Armed Forces during a period of hostilities, MAVNI recruits are eligible to apply for naturalization under section 329(a), 8 U.S.C. § 1440, once they join the military.”
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36. DHS regulations also confirm that the service requirement can be satisfied either through any current service that is honorable or a separation from military service under honorable conditions: “[h]onorable service and separation means service and separation from service which the executive department under which the applicant served determines to be honorable . . . .” 8 C.F.R. 329.1 (emphasis in original).
37. The N-426 Form is the official form established by USCIS for certification of a soldier’s “honorable service” status. The form – entitled “USCIS Form N-426: Request for Certification of Military or Naval Service” – reflects the statutory option of such service either via Selected Reserve membership or active-duty status, does not indicate any minimum tenure of service for naturalization eligibility, and reflects that current or past service is qualifying.
38. The service department “under which the applicant served or is serving” certifies the member’s honorable service to USCIS officials. 8 C.F.R. 329.4. DoD previously had shown no confusion (at least until the unlawful actions complained of herein) regarding the ability to naturalize based on service in the Selected Reserve. In fact, the Army recited the statutory framework for citizenship in the standard enlistment contract (emphasis added below):
3. I understand that I am enlisting under a federal law that allows the Secretary of the Army to authorize the enlistment of certain non-citizens of the United States (10 U.S.C. 504(b)(2)). I also understand that I am enlisting during a period of time in which any alien who serves honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air or naval forces of the United States may apply for United States Citizenship (8 U.S.C. 1440). . . . 4. In 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. I understand that the Army does not grant U.S. citizenship, and the Army does not guarantee that my application for U.S. citizenship will be approved.
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Defendants Are Withholding Their Mandatory and Ministerial Duty 39. Under federal law, the authority to administer and enforce all laws relating to the immigration and naturalization of aliens is vested in DHS and its component agency, USCIS. Defendants have no legal authority to implement or enforce the immigration and/or naturalization laws of the United States. 40. By statute, Defendants’ role in the naturalization of MAVNIs is compulsory and ministerial. Indeed, Defendants admitted to this Court in the Nio Action that “DoD serves a ministerial role in determining if an individual is serving honorably[.]” The service member’s executive department (i.e., service branch) merely certifies to DHS – the agency responsible for adjudicating and conferring citizenship – the service member’s honorable service. DHS created and requires the use of Form N-426 for this purpose. 41. Form N-426 instructs the military to consult a soldier’s existing service records and, on that basis, designate “yes” or “no” as to whether the soldier’s service is “honorable.” Because the form can be completed through a simple service record look-up, USCIS specifically authorizes that designation to be certified by “personnel office, administrative unit, command, or human resources department” personnel. 42. The choice on the form is binary. For service members eligible to apply for naturalization under 8 U.S.C. § 1440, either the soldier is serving honorably or not, based on the individual’s service record. Neither the form nor the statute authorizes DoD to refuse to make that choice or to otherwise withhold making the designation for Selected Reserve soldiers based on the absence of service in an active-duty status or for any other unlawful reason. 43. Yet, in disregard and defiance of the relevant statutes and implementing regulations, Defendants are withholding issuance of Form N-426 certifications to Plaintiffs and
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similarly-situated MAVNI soldiers and thereby impeding and preventing the exercise of their statutory right to seek naturalization.
Defendants’ Unlawful N-426 Withholding and Unlawful “Active-Duty Status” Policy 44. Plaintiffs have fulfilled their obligations under the law and their enlistment
contracts. They possess the language and/or medical skills deemed “vital” by DoD. They enlisted as members of the Selected Reserve during a period of armed conflict, thereby serving a “vital national interest.” They are serving, including by attending drills with their units, and are doing so honorably.
45. Defendants, contrary to the plain language of federal law, including 8 U.S.C. § 1440, have blocked Plaintiffs’ “expedited” path to citizenship by refusing to certify Plaintiffs’ honorable service as members of the Selected Reserve.
46. Instead, DoD has 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. According to Defendant officials, “DoD is not certifying any new MAVNI N-426s” and pursuant to its policy, DoD may rescind prior honorable service certifications that Selected Reserve MAVNIs received without active-duty service. This policy, on its face, unlawfully disrupts and interferes with the naturalization processing of Selected Reserve MAVNIs, including Plaintiffs, because DHS will not accept, process, or adjudicate a naturalization application from a Selected Reservist if that application does not include an N-426 signed by the military.
47. DoD’s policy is clear and final, and it is impacting Plaintiffs and similarlysituated MAVNI soldiers. On July 7, 2017, a DoD official submitted sworn testimony to the
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Court in the Nio Action, confirming that “[p]resently, DoD is not certifying any new MAVNI N-426s.” Thus, the policy is being applied to Plaintiffs and each and every member of the Class.
48. Thereafter, on July 28, 2017, the same DoD official submitted another sworn statement, this time attesting that “DoD has recently determined that the IDT drill periods performed by members of the Selected Reserve . . . are defined in law as not being creditable active duty service . . . and, standing alone, do not qualify for certification of honorable service under 8 U.S.C. § 1440.”
49. Even more recently, on August 17, 2017, an Army Lieutenant General issued orders via memorandum to commands to which MAVNI Selected Reservists are assigned (“DoD August Memo”). The subject of that DoD August Memo is “Certification of Honorable Service Pursuant to 8 U.S. Code § 1440,” and it orders as follows:
Effectively immediately, I withhold authority to certify the honorable service (N-426) of Soldiers who have not yet attended Initial Entry Training (IET). Commanders seeking certification for Soldiers who have not attended IET must provide a detailed justification to the OCAR, G1 that includes an explanation of all periods of active-duty service. 50. On August 23, 2017, DoD representatives confirmed to this Court that “[t]his document indicates . . . that effective immediately [the issuance of N-426s has] been withheld” and that the message that had been sent out to “everybody in the field” was “not to issue them [N-426s]” and “not to issue anymore of them [N-426s].” 51. On August 30, 2017, DoD further confirmed to this Court that DoD is not certifying any MAVNI N-426s while DoD “undertakes a review of the MAVNI program,” but DoD did not provide any indication of what that review entails or how long it may take. And, in sworn testimony on that same day, DoD admitted that the DoD August Memo (1) withholds, for
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an indefinite period of time, N-426 certifications, and (2) was a response to DoD concerns that Army officials “prematurely” certified N-426s in the past.
52. As specified above, DoD has a mandatory, non-discretionary duty to complete N-426 Forms for those soldiers (including Plaintiffs and the Class) eligible to apply for naturalization under the statute, and the DoD policy prohibiting military officials from completing those forms is unlawful. As described above, DoD’s “active-duty” service policy in particular is contrary to the plain and unambiguous terms of the governing statute and regulations, and would in effect unlawfully repeal the specific amendment passed by Congress to bring service in the Selected Reserve within the scope of 8 U.S.C. § 1440.
53. DoD’s new “active-duty service” policy and DoD’s refusal to complete N-426s lack rationality, coherence, and consistency. DoD’s position is directly at odds with DHS’s past and current interpretation of 8 U.S.C. § 1440, including DHS’s final rulemaking published in the Federal Register. And, DoD’s position defies and disregards the instructions on the Form N-426 that DHS created for the express purpose of compliance with 8 U.S.C. § 1440.
54. In fact, as Government counsel conceded to this Court on August 23, 2017, “the Department of Defense and USCIS disagree[] as to an interpretation of [8 U.S.C § 1440].” In other words, DHS – the agency with exclusive authority to administer the naturalization laws and to adjudicate naturalization applications – does not agree with Defendants’ action requiring service in an active-duty status as a prerequisite to any Form N-426 certification. The fact that DoD’s policies are impeding and disrupting the lawful naturalization process is even more extraordinary given Defendants’ admission to this Court – in the Nio Action – that “it is the province of USCIS to interpret the Immigration and Nationality Act which is what is Title 8 and which leads to CFRs under Title 8.”
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55. And, DoD’s current policy 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 has certified the honorable service of hundreds, if not thousands, of MAVNI soldiers without any service in an active-duty status, including 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 halfday drills (the equivalent of one day of drilling service).
56. In short, DoD is engaging in a power play. Contrary to law, DoD is interfering with and manipulating the naturalization process for Selected Reservists – a process over which it has no more than a ministerial duty to issue N-426 certifications. For its part, DHS either lacks the wherewithal or the power to block DoD’s gambit. In the meantime, the lives and fates of MAVNI soldiers, including Plaintiffs, hang in the balance.
Plaintiffs’ Honorable Service and N-426 Requests 57. Plaintiff Mahlon Kirwa enlisted in the Selected Reserve through the MAVNI program in December 2015. Mr. Kirwa took his service oath on December 7, 2015. Mr. Kirwa began drilling with the 414th Chemical Company in Orangeburg, South Carolina as a U.S. Army Private First Class (E-2) in March 2016 and has since participated in multiple Selected Reserve drill periods with his unit. 58. In July 2017, Mr. Kirwa requested his commander to sign his Form N-426 so that he could submit his N-400 Application for Naturalization. However, Mr. Kirwa’s commander declined to sign the Form N-426, telling Mr. Kirwa that his service to date did not qualify for
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issuance of a Form N-426. The excuse that Mr. Kirwa’s commander gave for denying his N-426 was that Mr. Kirwa had not attended at least 48 drill periods.
59. Plaintiff Santhosh Meenhallimath enlisted in the Selected Reserve through the MAVNI program in February 2016. Mr. Meenhallimath took his service oath on February 4, 2016. Mr. Meenhallimath began drilling with the 353rd Transportation Company in Buffalo, Minnesota as a Specialist (E-4) in January 2017 and has since participated in multiple Selected Reserve drill periods with his unit.
60. In April 2017, Mr. Meenhallimath requested an official in his unit to sign his Form N-426 so that he could submit his N-400 Application for Naturalization. However, Mr. Meenhallimath’s unit administrator refused to sign the Form N-426 stating that “I have found out that we cannot certify [a Form N-426] unless you are on Active Duty or have a DD214 (you will receive that after BCT/AIT).” No one from Mr. Meenhallimath’s unit has signed his N-426.
61. Plaintiff Ashok Viswanathan enlisted in the Selected Reserve through the MAVNI program in June 2016. Mr. Viswanathan took his service oath on June 24, 2016. Mr. Viswanathan began serving with the 353rd Transportation Company in Buffalo, Minnesota as a Specialist (E-4) in August 2016 and has since participated in multiple Selected Reserve drill periods with his unit.
62. In March 2017, Mr. Viswanathan filed his N-400 Application for Naturalization, attaching a Form N-426. On March 31, 2017, USCIS responded to Mr. Viswanathan’s submission with a Request for Evidence (“RFE”) stating that USCIS was unable to fully process his application. The RFE instructed him to “Take the N-426 to your personnel office, administrative unit, command, or human resources department where your service record can be verified and certified” and noted that “No Recruiter can Certify” the Form N-426. The RFE
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instructed Mr. Viswanathan to resubmit the Form N-426 within 30 days. In April 2017, Mr. Viswanathan contacted his unit administrator regarding his Form N-426 certifying his honorable service. Mr. Viswanathan’s unit administrator responded with the following: “I have found out that we cannot certify [a Form N-426] unless you are on Active Duty or have a DD214 (you will receive that after BCT/AIT).” No one from Mr. Viswanathan’s unit has signed his N-426.
Defendants’ Unlawful Conduct Has Caused, and Will Continue to Cause, Substantial and Irreparable Harm to Plaintiffs
63. Plaintiffs are suffering and will continue to suffer irreparable harm due to Defendants’ actions.
64. The right to acquire United States citizenship is a precious one. The benefits of U.S. citizenship are priceless, and the consequences of a lost or unlawfully delayed opportunity to acquire citizenship are dire. Depriving U.S. service members of their opportunity to become naturalized citizens – an opportunity earned through their honorable military service and guaranteed by statute – is an ongoing and mounting harm for which there is no recompense.
65. Defendants’ conduct is unlawfully depriving Plaintiffs and Class members of the opportunity to realize fundamental rights and benefits that come along with citizenship, including the right to vote, protection from deportation/removal proceedings, work or school authorization and benefits, the right to travel outside of this country and return to the United States, the ability to meet personal, family and professional obligations, and peace of mind regarding their legal status to remain in the United States. This deprivation of citizenship opportunities continues with each passing day. And every day of lost citizenship rights and benefits is a day that these Plaintiffs can never recover or be recompensed for losing.
66. Without the ability to obtain a job, a driver’s license, a U.S. passport (which has prevented certain Plaintiffs from visiting loved ones and attending important family events),
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additional educational and professional opportunities, and the myriad other privileges that naturalization would afford, these soldiers are suffering. DoD’s unlawful refusal to certify Plaintiffs’ honorable service has led to financial and other distress, hardship, and uncertainty. Simply put, Plaintiffs cannot plan for the future.
67. Further, Plaintiffs’ lawful immigration status has been jeopardized by Defendants’ conduct. Enlistment in the military shows “immigrant intent” that jeopardizes any nonimmigrant visa status. For example, DHS officials have stated that, in the agency’s view, MAVNI soldiers who entered the United States on F or M non-immigrant visas are subject to removal because of their enlistment in the U.S. Army. According to the agency, these U.S. Army soldiers remain “lawfully presen[t]” in the United States only “at the discretion of the agency” and only “for so long as DHS continues to forbear” removal proceeding against them.
68. And, the DoD has told these soldiers the following: “If you are discharged from the Army before you become a citizen, you may no longer have a valid immigration status. For example, if you are on an H1B worker visa prior to joining the Army and are later discharged without citizenship, you will have no legal status.”
69. Furthermore, current DHS guidance relating to F and M non-immigrant visas provides that if a MAVNI Selected Reserve soldier receives “compensation during Reserve duty, this marks the beginning of employment and the [Designated School Officials] must terminate the student [Student and Exchange Visitor Information System (“SEVIS”)] record.” While DHS officials state that, at least for now, the agency “will not enforce the requirement that designated school officials terminate the [SEVIS] record of a student solely because he or she accepts compensation for participating in Reserve duty,” the “requirement” still exists and this representation affords no comfort whatsoever to MAVNI soldiers whose enrollment already has
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been terminated or will be terminated by school officials in compliance with this DHS requirement.
70. By withholding certification of honorable service for Plaintiffs and similarlysituated soldiers, DoD is not even allowing these soldiers the modicum of “lawful presence” protection that may accompany a pending naturalization application.
71. Further, the new uncertainty associated with their military careers, and concomitantly their legal status, is causing anguish and is particularly unconscionable given that each Plaintiff is serving during a period of armed conflict and has sworn an oath to protect and defend the United States.
72. Finally, any loss of the opportunity to become U.S. citizens on the part of Plaintiffs and the members of the Class, after already having volunteered to serve in the United States military, could subject these individuals to extreme peril. These individuals would be subject to deportation to countries of origin, where, for some, they could face detention, interrogation, prosecution, and/or imprisonment because of their decision to enlist in the U.S. Army and swear their allegiance to the United States and the Constitution.
CLASS ACTION ALLEGATIONS 73. The named Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of themselves and all other persons similarly situated. The named Plaintiffs seek to represent the below-described Class: 74. Class: All individuals who: (i) have enlisted in the U.S. military through the MAVNI program; (ii) have served in the Selected Reserve; and (iii) have not received a completed N-426 Form from the military.
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75. The members of Plaintiffs’ Class warrant class action treatment because they fulfill the certifying requirements under Rule 23(a) of the Federal Rules of Civil Procedure. While the exact number of Class members is unknown to Plaintiffs at this time, recent DoD memoranda – including a May 19, 2017 “Action Memo” signed by DoD Under Secretaries, a July 27, 2017 memorandum from the Acting Secretary of the Army, and sworn statements by DoD representatives in the Nio Action – indicate that the proposed Class would consist of approximately 2,000 members.
76. The proposed Class meets the numerosity requirement of Rule 23(a)(1) because the members of the Class are so numerous that joinder of all members is impractical.
77. The proposed Class meets the commonality requirement of Rule 23(a)(2) because there are questions of law and fact common to the Class, including, for example, whether DoD has a mandatory duty to complete N-426 Forms and whether DoD’s “active-duty service” requirement for certification of a Form N-426 is contrary to law.
78. The proposed Class meets the typicality requirement of Rule 23(a)(3) because the claims of the named Plaintiffs are typical of the claims of each of the Class members. Class members and Plaintiffs similarly are affected by Defendants’ wrongful conduct in violation of federal law, including 8 U.S.C. § 1440, that is described herein.
79. The named Plaintiffs will fairly and adequately protect the interests of the Class as required by Rule 23(a)(4) because their interests are identical to those of the other members of the Class. Fair and adequate protection of the interests of the Class will be further ensured because the named Plaintiffs are represented by competent legal counsel who are experienced in federal litigation, are undertaking representation on a pro bono basis, and have adequate resources and commitment to represent the Class as a whole.
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80. Furthermore, as contemplated by Rule 23(b)(1), if the individual members of the Class were to bring separate suits to address Defendants’ policies, practices, and actions and inactions, Defendants may address the cases of the named Plaintiffs but ignore the concerns of the remaining Class members, thereby exacerbating Defendants’ violations of the law. Resolving this matter as a class action also would serve the Court’s interest in judicial economy by avoiding overburdening the courts with individual lawsuits brought by each of the many enlistees recruited through the MAVNI program whose Form N-426 honorable service certifications are being withheld subject to DoD’s unlawful active-duty service requirement.
81. Alternatively, this case qualifies for class action treatment under Rule 23(b)(2) because Plaintiffs seek final injunctive and declaratory relief. This relief is appropriate for the whole Class as Defendants’ actions and/or refusals to act apply generally to the Class as a whole.
CLAIMS FOR RELIEF Count I: Declaratory Judgment 82. Plaintiffs re-allege paragraphs one through eighty-one as if fully set forth herein. 83. 28 U.S.C. § 2201 authorizes a court, “[i]n a case of actual controversy within its jurisdiction . . . upon the filing of an appropriate pleading” to “declare the rights and other legal relations of any interested party seeking such declaration . . . .” 84. 8 U.S.C. § 1440 establishes a clear, limited, and purely ministerial role for DoD in the naturalization process. DoD’s role is to verify, by way of Form N-426, whether a soldier is or is not serving honorably based on that soldier’s existing service record. 85. 8 U.S.C. § 1440, the implementing regulations promulgated thereunder, and the final rules published in the Federal Register further provide that soldiers with honorable service either as a member of the Selected Reserve of the Ready Reserve or in an active-duty status are
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eligible for naturalization under Section 1440. Service in an active-duty status is not required. Contrary to the express language of the statute and regulations, DoD has adopted a final policy precluding the certification of honorable service for members serving in the Selected Reserve until such service members serve in an active-duty status, and has applied that policy to Plaintiffs (and to the Class) to deny them the honorable service certifications to which they are entitled under the statute.
86. Accordingly, Plaintiffs seek declaratory judgment that: (i) DoD may not withhold or unreasonably delay completion and execution of Form N-426 service certifications for Selected Reserve MAVNI soldiers; (ii) For purposes of 8 U.S.C. § 1440, one day of Selected Reserve service is sufficient; (iii) DoD may not refuse to certify honorable service for Selected Reserve MAVNI soldiers on the basis that service in an active-duty status is necessary for naturalization under 8 U.S.C. § 1440; and (iv) Unless the soldier’s existing service record reflects conduct that disqualifies that service from being designated honorable – under the recognized standard applicable to all soldiers regardless of immigration status, DoD may not withhold an honorable service certification for any Selected Reserve MAVNI soldier seeking naturalization. Count II: Preliminary and Permanent Injunctive Relief
87. Plaintiffs re-allege paragraphs one through eighty-six as if fully set forth herein. 88. Defendants unlawfully and improperly have imposed an active-duty service requirement for certification of Plaintiffs’ honorable service. And, Defendants unlawfully are
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withholding MAVNI service certifications (N-426s). Defendants’ actions interfere with and prevent the submission, processing, and adjudication of Plaintiffs’ naturalization applications under 8 U.S.C. § 1440.
89. Plaintiffs have been, and will continue to be, substantially and irreparably harmed by Defendants’ unlawful and improper actions, for which they have no adequate remedy at law. Under the facts and circumstances of this case, the balance of the equities clearly favors Plaintiffs, and injunctive relief is in the public interest.
90. Plaintiffs seek preliminary injunctive relief against Defendants: (i) to place and maintain the parties in the pre-dispute status quo; (ii) to preliminarily restrain Defendants from refusing to sign and issue Form N-426s to members of the Selected Reserve; (iii) to preliminarily set aside Defendants’ policy requiring service in an activeduty status for certification of honorable service under 8 U.S.C. § 1440(a); (iv) to preliminarily restrain Defendants from refusing to certify honorable service to members of the Selected Reserve, except as related to the conduct of an individual Plaintiff or Class member as reflected in that soldier’s service record and based on sufficient grounds generally applicable to all members of the military; (v) to preliminarily restrain Defendants from discharging or separating Plaintiffs or members of the Class pending completion of their N-426 Forms and processing of their naturalization applications, except as related to the conduct of an individual soldier and based on sufficient grounds
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generally applicable to members of the military for discharge from service; and (vi) to compel Defendants to provide weekly reports to the Court, Plaintiffs, and the Class regarding (a) the status of Plaintiffs’ and Class members’ honorable service certifications until such certifications are issued, and (b) any plans to discharge or separate the Plaintiffs or Class members from the military pending issuance of their N-426 Forms and processing of their naturalization applications. 91. Plaintiffs seek permanent injunctive relief against Defendants: (i) to restrain Defendants from refusing to sign and issue Form N-426s to members of the Selected Reserve; (ii) to set aside Defendants’ policy requiring service in an active-duty status for certification of honorable service under 8 U.S.C. § 1440(a); (iii) to restrain Defendants from refusing to certify honorable service to members of the Selected Reserve, except as related to the conduct of an individual soldier as reflected in that soldier’s service record and based on sufficient grounds generally applicable to all members of the military; (iv) to restrain Defendants from discharging or separating Plaintiffs or members of the Class pending completion of their N-426 Forms and processing of their naturalization applications, except as related to the conduct of an individual soldier and based on sufficient grounds generally applicable to members of the military for discharge from service; and
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(v) to compel Defendants to provide weekly reports to the Court, Plaintiffs, and the Class regarding (a) the status of Plaintiffs’ and Class members’ honorable service certifications until such certifications are issued, and (b) any plans to discharge or separate the Plaintiffs or Class members from the military pending issuance of their N-426 Forms and processing of their naturalization applications.
92. Plaintiffs further seek preliminary and permanent injunctive relief against the Defendants enjoining them from taking any retaliatory actions against Plaintiffs and the Class.
Count III: Relief Pursuant to the Administrative Procedure Act 93. Plaintiffs re-allege paragraphs one through ninety-two as if fully set forth herein. 94. 5 U.S.C. § 706(1) authorizes a court to “compel agency action unlawfully withheld or unreasonably delayed.” Reviewable agency action includes an agency’s failure to act. Defendants unlawfully have withheld and/or unreasonably delayed the issuance of Form N426s and honorable service certifications to Plaintiffs and the Class contrary to the plain language of applicable law, including 8 U.S.C. § 1440. 95. Plaintiffs have a clear right to receive honorable service certifications for naturalization purposes pursuant to 8 U.S.C. § 1440 based on their current service and based on the current record. Defendants have interfered with that right and the only adequate remedy is to order Defendants to resume certification of Plaintiffs’ honorable service solely in accordance with existing criteria, law, and regulations. 96. Accordingly, Plaintiffs seek an order from the Court pursuant to 5 U.S.C. § 706(1) compelling Defendants to comply with their statutory obligations pursuant to 8 U.S.C.
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§ 1440 to issue Form N-426s certifying the honorable service of Plaintiffs and members of the Class.
97. 5 U.S.C. § 706(2) authorizes a court to hold unlawful and set aside final agency action found to be arbitrary, capricious, an abuse of discretion (e.g., irrational), or otherwise not in accordance with law, or in excess of statutory jurisdiction or authority.
98. Defendants have implemented a policy withholding the issuance of N-426s and precluding the certification of honorable service under Section 1440 for members serving in the Selected Reserve until such service members serve in an active-duty status, and Defendants have applied that policy to Plaintiffs and the Class to deny them the honorable service certifications to which they are entitled and eligible under the law. Defendants’ policy is contrary to the plain language of the statute, implementing regulations, and final rulemaking, which unambiguously provide that service members with honorable service either as a member of the Selected Reserve of the Ready Reserve or in an active-duty status are eligible for naturalization. Defendants’ policy also is directly contrary to the decision by Congress to amend Section 1440 to broaden the statute’s scope specifically to include service by members of the Selected Reserve. DoD’s policy and practice exceeds its statutory authority. And, this policy of withholding the N-426s and precluding certification of honorable service absent active-duty status is inconsistent with DoD’s own past practice with respect to numerous other Selected Reserve MAVNIs.
99. Accordingly, Plaintiffs seek an order: (i) holding unlawful and setting aside Defendants’ policy refusing issuance of N-426s and precluding the certification of honorable service for members of the Selected Reserve who have not served in an active-duty status; (ii) declaring such policy unlawful; (iii) enjoining Defendants from withholding issuance of N-426s and from refusing to certify honorable service except as related to the conduct of an
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individual soldier as reflected in that soldier’s service record and based on sufficient grounds generally applicable to all members of the military; and (iv) enjoining Defendants from applying the policy to Plaintiffs and the Class.
Count IV: Mandamus 100. Plaintiffs re-allege paragraphs one through ninety-nine as if fully set forth herein. 101. 28 U.S.C. § 1361 authorizes a court to “compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff” if the plaintiff can demonstrate that: (1) the plaintiff seeking mandamus has a clear right to the relief requested; (2) the defendant has a clear duty to perform the act in question; and (3) no other adequate remedy is available. 102. By virtue of their service in the Selected Reserve and their stated intention to apply for naturalization pursuant to 8 U.S.C. § 1440, Plaintiffs have the right and need to obtain from Defendants a certification of their honorable service, via Form N-426. 103. Pursuant to 8 U.S.C. § 1440, Defendants have a mandatory duty and obligation to perform the ministerial function of verifying Plaintiffs’ service status from their existing service records and certifying – via Form N-426 – Plaintiffs’ honorable service. 104. Defendants have refused to perform this limited task and have implemented policies thwarting and preventing the issuance of N-426 certification to Plaintiffs and the Class. 105. Accordingly, Plaintiffs seek issuance of a writ of mandamus compelling Defendants to comply with their ministerial obligations pursuant to 8 U.S.C. § 1440 to certify the honorable service of Plaintiffs and the Class.
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Case 1:17-cv-01793 Document 1 Filed 09/01/17 Page 31 of 32 PRAYER FOR RELIEF
Wherefore, Plaintiffs, on behalf of themselves and the Class, respectfully request that this Court:
1. Assume jurisdiction over this action; 2. Enter the declaratory judgment requested in Count I of this Complaint; 3. Grant the preliminary and permanent injunctive relief requested in Count II of this
Complaint; 4. Grant the relief requested pursuant to the APA (Count III of this Complaint); 5. Issue the mandamus requested in Count IV of this Complaint; 6. Award Plaintiffs and the Class reasonable costs and attorneys’ fees, including
under the Equal Access to Justice Act; and 7. Award such further relief as the Court deems just or appropriate.
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Respectfully submitted this 1st day of September 2017.
/s/ Joseph J. LoBue Joseph J. LoBue (D.C. Bar No. 484097) Douglas W. Baruch (D.C. Bar No. 414354) Jennifer M. Wollenberg (D.C. Bar No. 494895) Neaha P. Raol (D.C. Bar No. 1005816) Webster R. M. Beary (D.C. Bar No. 1041653) Shaun A. Gates (D.C. Bar No. 1034196) Katherine L. St. Romain (D.C. Bar No. 1035008) Fried, Frank, Harris, Shriver & Jacobson LLP 801 17th Street, NW Washington, D.C. 20006 Telephone: (202) 639-7000 Facsimile: (202) 639-7003 Email: joseph.lobue@friedfrank.com Email: douglas.baruch@friedfrank.com Email: jennifer.wollenberg@friedfrank.com Counsel for Plaintiffs
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 Case 1:17-cv-01793-ESH-GMH Document 28 Filed 10/25/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAHLON KIRWA, et al., Plaintiffs,
v. UNITED STATES DEPARTMENT OF DEFENSE, et al.,
Defendants.

Civil Action No. 17-1793(ESH)

ORDER Before the Court is plaintiffs’ Motion for a Preliminary Injunction and provisional class certification. (Pls.’ Mot. for a Prelim. Inj., Sept. 19, 2017, ECF No. 11.) For the reasons stated in an accompanying Memorandum Opinion, ECF No. 29, it is hereby ORDERED that the motion is GRANTED; it is further ORDERED that defendants are preliminarily enjoined from refusing to sign and issue Form N-426s to members of the Selected Reserve pursuant to Section II of DOD’s October 13, 2017 Guidance; it is further ORDERED that defendants are preliminarily enjoined from refusing to certify MAVNI enlistees who have served for one day or more in the Selected Reserve as having honorable service, except as related to the conduct of an individual plaintiff or class member as reflected in that soldier’s service record and based on sufficient grounds generally applicable to all members of the military; it is further ORDERED that defendants should use their best efforts to certify or deny Form N-426s,

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as was done for the Nio plaintiffs, within two business days of receipt of the Form N-426; it is further
ORDERED that for purposes of the preliminary injunction the Court provisionally certifies a class that includes (1) MAVNI enlistees, (2) who enlisted prior to October 13, 2017, (3) who have served in the Selected Reserve, and (4) not received a completed Form N-426; it is further
ORDERED that plaintiffs Mahlon Kirwa, Santhosh Meenhallimath, and Ashok Viswanathan are provisionally certified as representatives of the class pursuant to Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure; and it is further
ORDERED that plaintiffs’ counsel is appointed to represent the provisional class.

SO ORDERED. Date: October 25, 2017

/s/ Ellen Segal Huvelle ELLEN SEGAL HUVELLE United States District Judge

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 Case 1:17-cv-01793-ESH Document 29 Filed 10/25/17 Page 1 of 35

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAHLON KIRWA, et al., Plaintiffs,
v. UNITED STATES DEPARTMENT OF DEFENSE, et al.,
Defendants.

Civil Action No. 17-1793(ESH)

MEMORANDUM OPINION 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

Case 1:17-cv-01793-ESH Document 29 Filed 10/25/17 Page 2 of 35
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.
BACKGROUND 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-cv0998, 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. I. FACTUAL BACKGROUND A. Military Service as a Path to Citizenship 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
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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).
1. Section 1440 Section 1440 applies to “[a]ny person who, while an alien or a noncitizen national of the
United States, has served honorably as a member of the Selected Reserve of the Ready Reserve
or in an active-duty status in the military, air, or naval forces of the United States” during a
designated period of military hostilities. 8 U.S.C. § 1440(a); see also 8 C.F.R. § 329.2(a). Prior
to 2003, § 1440 applied only to persons who had served in an “active-duty status,” but it was
amended in 2003 to insert “as a member of the Selected Reserve of the Ready Reserve or” after
“has served honorably.”1 National Defense Authorization Act for Fiscal Year 2004, § 1702, P.L.
108-136, 117 Stat. 1392 (Nov. 24, 2003) (“NDAA”).2 “[A]ll soldiers enlisted through the Army
Reserve Delayed Training Program (DTP) . . . are attached to a unit in the U.S. Army Reserve,”
1 The “reserve components of the armed forces” are: (1) The Army National Guard of the United States; (2) The Army Reserve; (3) The Navy Reserve; (4) The Marine Corps Reserve; (5) The Air National Guard of the United States; (6) The Air Force Reserve; and (7) The Coast Guard Reserve. 10 U.S.C. § 10101. Each reserve component has a “Ready Reserve, a Standby Reserve, and a Retired Reserve.” 10 U.S.C. § 10141. The “Ready Reserve consists of units or Reserves, or both, liable for active duty.” Id. § 10142. The “Selected Reserve” are units, or Reserves, within the Ready Reserve, “trained as prescribed.” Id. § 10143. The prescribed training for Selected Reserve status is to “(1) participate in at least 48 scheduled drills or training periods during each year and serve on active duty for training of not less than 14 days (exclusive of travel time) during each year,” id. § 10147(a)(1), or to “(1) assemble for drill and instruction, including indoor target practice, at least 48 times each year; and (2) participate in training at encampments, maneuvers, outdoor target practice, or other exercises, at least 15 days each year.” Id. § 502. 2 At the same time, Congress reduced the period of service required for military naturalization based on peacetime service from three years to one year. NDAA § 1701(a), 117 Stat. at 1691.
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and “[t]hey are members of the Selected Reserve of the Ready Reserve.”3 (Decl. of Alicia M.
Glanz Decl., Sept. 21, 2017 (“Glanz Decl.”), ¶ 2 (citing Army Regulation 601-210).)
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 this section. 8 U.S.C. § 1440(b)(1), (2), (4); see also
8 C.F.R. § 329.2(e). In addition, no minimum period of military service is required.
See 8 U.S.C. § 1440; see also S. Rep. No. 1268-1292, at 5 (2d Sess. 1968) (“the wartime
serviceman has no minimum required”).4
3 The Army Reserve’s Delayed Training Program (“DTP”) “allows . . . members of the Selected Reserve to attend drill periods for pay and benefits, known as Inactive Duty for Training (IDT) during the period prior to assignment to initial military training (also known as basic training).” (2d Miller Decl. ¶ A4.) While in the DTP, enlistees are “on a delayed training status and are considered in this status until they have a valid reservation date to ship to Initial Active Duty Training (IADT) (Basic Combat Training and Advanced Individual Training).” (Glanz Decl. ¶ 2.) The Army Reserve’s DTP has existed since at least 2002. See USAREC Regulation 601-95, Personnel Procurement: Delayed Entry and Delayed Training Programs (Aug. 15, 2002). 4 A DOD regulation requires that “each qualifying alien shall be advised of the liberalized naturalization provisions of [8 U.S.C. 1440], i.e., that the usual naturalization requirements concerning age, residence, physical presence, court jurisdiction and waiting periods are not applicable, and will be given appropriate assistance in processing his naturalization application . . . .” 32 C.F.R. § 94.4.
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“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, 329.4.5 “Citizenship granted pursuant to [§ 1440] may be revoked . . . if the person is separated from the Armed Forces under other than honorable conditions before the person has served honorably for a period or periods aggregating five years.” 8 U.S.C. § 1440(c). Since October 1, 2001, USCIS has naturalized 109,321 members of the military. USCIS, Naturalization Through Military Service: Fact Sheet at 3 (June 12, 2017) (“USCIS Fact Sheet”).6
2. USCIS Form N-426 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: Persons who are serving or have served under specified conditions in the U.S.
5 Earlier versions of military naturalization statutes required that military service “shall be proven by duly authenticated copies of records of the executive departments having custody of the records of such service.” The Nationality Act of 1940, Pub. L. No. 76-853, § 324, 54 Stat. 1137, 1149–1150 (1940). 6 Available at https://www.uscis.gov/news/fact-sheets/naturalization-through-military-servicefact-sheet.
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Armed Forces are granted certain exemptions from the general requirements for naturalization. To establish eligibility, the law requires the department with custody of the service record to certify whether the service member served honorably, and whether each separation from the service was under honorable conditions. USCIS requests certification of the service member’s military service. (Pls.’ Mot. for a Preliminary Injunction (“PI Mot.”) Ex. 3, Sept. 19, 2017, ECF No. 11.)7 The applicant fills out and signs the first part of the N-426, which asks for personal information; enlistment date and location; and all periods of military service, by branch, dates of service, and “type of service”—either “Active Duty” or “Selected Reserve of the Ready Reserve.” (PI Mot. Ex. 3.); see also USCIS Policy Manual, Vol. 12, Part I, Ch. 3, § B (“Qualifying military service is honorable service in the Selected Reserve of the Ready Reserve or active duty service . . . .”). “One day of qualifying service is sufficient in establishing eligibility.” USCIS Policy Manual, Vol. 12, Part I, Ch. 3, § A. 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 derogatory information in your records relating to the service member’s character, loyalty to the United States, disciplinary action, convictions, other than honorable discharges, or other matters concerning his or her fitness for citizenship.” (PI Mot. Ex. 3.) Once a noncitizen soldier obtains an executed N-426 and submits an application for naturalization, it is the policy of the Bureau of Immigration and Customs Enforcement (“ICE”) not to initiate removal proceedings solely based on a lack of lawful status. (Nio, Decl. of
7 The N-426 Form used during the period of time relevant to the present litigation expired on August 31, 2017. (PI Mot. Ex. 3.) The current version, which is essentially the same, expires on July 31, 2019. (PI Mot. Ex. 4.)
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Nathalie R. Asher, Aug. 10, 2017, ECF No. 31-1 (“Asher Decl.”), ¶ 5; Tr. of PI Hr’g at 57, Oct. 18, 2017, ECF No. 27 (“10/18/2017 Tr.”) at 57–58.) In a May 23, 2016 guidance document from ICE, ICE reiterated its position that “submitting this [MAVNI] application provides the enlistee continued lawful presence in the United States while the application is pending.” (PI Mot. Ex. 14, at 2.)
Until very recently, DOD had no official guidance that applied to the execution of N426s. (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:
As a general rule, a Soldier is considered to be serving honorably unless a decision has been made, either by the Soldier’s commander or a court martial, to discharge him/her under less than honorable conditions. In the rare cases where the character of a Soldier’s service is questionable, ONLY the Soldier’s commander can decide this issue, and the sole criterion for the decision is: If the Soldier were being discharged today, based on his/her record, what type of discharge would the Soldier receive? If Honorable or General or Under Honorable Conditions, the character of service on the N-426 will read “honorable”. If Under Less than Honorable Conditions, the N-426 character of service item will NOT read “honorable”. (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
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“[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 Naturalization Applications Based upon Qualifying Military Service.” (PI Reply Ex. 12.) It instructs applicants to “submit the partially competed Form N-426 to their local service record holder,” and then instructs that the certifying official “must complete all pertinent blocks” and “MUST sign” the document. (PI Reply Ex. 12 at 3–4.) In another publication, the Navy instructs the “local service record holder” to certify the N-426 after checking existing and past service records. (PI Reply Ex. 11.) Similar presentations by the Army to health care professionals who enlisted in MAVNI instructed them to have their chain of command sign their N-426 “after 1 drill is completed.” (PI Mot. Ex. 7.)
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.)
3. USCIS’s Naturalization at Basic Training Initiative 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
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for non-citizen enlistees once they arrived at IET.8 See USCIS Fact Sheet at 2;9 (see also Nio, Decl. of Daniel Renaud, ECF No. 19-6, July 7, 2017 (“1st Renaud Decl.”), ¶ 13.) “Under this initiative, USCIS conducts all naturalization processing including the capture of biometrics, the naturalization interview, and administration of the Oath of Allegiance on the military base.” USCIS Fact Sheet at 2. The goal, which was generally achieved, was for the naturalization process to be completed by the end of IET. (Decl. of Stephanie P. Miller, July 7, 2017 (“1st Miller Decl.”), ¶ 9; Nio, 1st Renaud Decl. ¶ 13.)
B. The MAVNI Program 1. Establishment
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”).)
2. Enhanced Security Screening (9/30/2016 DOD Memorandum) Over the years of the MAVNI program, DOD increased the security screening
8 IET encompasses “basic training,” also referred to as “basic combat training” (BCT). DOD considers IET to be active duty. (10/18/2017 Tr. at 28–29.) 9 Since 2009, USCIS has expanded the initiative to the Navy, Air Force, and in 2013, to the Marine Corps, giving enlistees of all branches an equal opportunity to leave IET as U.S. citizens. USCIS Fact Sheet at 2.
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requirements for MAVNI enlistees. (1st Miller Decl. ¶¶ 12–17.)10 From June to September 2016, DOD engaged in a review of the MAVNI program that led it to conclude MAVNI screening “was not being implemented adequately.” (1st Miller Decl. ¶ 15; see also id. ¶¶ 15– 17.) On September 30, 2016, citing national security concerns, DOD implemented enhanced security screening requirements for MAVNIs and required that the screening be successfully completed before a MAVNI enlistee would get a “military suitability determination” and be allowed to go to IET. (9/30/2016 DOD Memorandum, attach. 1, at 3; 1st Miller Decl. ¶¶ 10, 14– 18; Nio, Tr. of PI Hr’g (Part I), July 19, 2017, ECF No. 34 (“Nio, 7/19/2017 Tr.”) at 21–22.) DOD’s enhanced security screening for MAVNI enlistees included: (1) a Tier 3 or Tier 5 background investigation—Tier 5 was formerly known as a Single Scope Background Investigation (“SSBI”); (2) a National Intelligence Agency Check (“NIAC”); (3) a counterintelligence focused security review (“CI Review”); and (4) an “issue-oriented interview and/or issue-oriented polygraph, if needed to resolve any foreign influences or foreign preference concerns.” (1st Miller Decl. ¶ 14; 9/30/2016 DOD Memorandum, attach. 1, at 3–5.) Despite the reference to the possibility of a Tier 3 background investigation for some MAVNIs (a much less in-depth and time-consuming endeavor (see Decl. of Stephanie P. Miller, July 28, 2017 (“2d Miller Decl.”), ¶ A2), DOD’s current position is that all MAVNIs are subjected to a Tier 5
10 In 2014, the Army Reserve published a MAVNI Information Paper which advised MAVNI foreign language recruits that
As a condition for participation in the MAVNI program, all MAVNI applicants will be subject to enhanced security screening measures which will occur while you are in the Army Reserve Delayed Training Program (DTP) before you ship to BCT. You will be required to remain in the DTP for at least 180 days to allow for the completion of the security checks. If results are not returned prior to ship date, the ship date will be renegotiated. (PI Opp. Ex. 4, at 7 (“MAVNI Information Paper”).)
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investigation because “every MAVNI applicant inherently has derogatory information” due to the fact they are citizens of foreign governments. (10/18/2017 Tr. at 11–12.) Currently, the estimated time for completion of the Tier 5 investigation is over 400 days, and that is just one part of the enhanced security screening. (10/18/2017 Tr. at 13; 2d Miller Decl. ¶ A2.)
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.)
C. MAVNI Program in the Army Reserve The Army Reserve began implementing the MAVNI Program in 2009 due to “critical shortages of high-quality, multi-lingual, ethnically and culturally diverse recruits, and healthcare professionals . . . .” (PI Mot. Ex. 6 (Army Memorandum dated 3/24/2009 re “AR [MAVNI] Pilot Program Implementation Guidance”).)11 This litigation concerns MAVNIs who enlisted in the Army Reserve’s Selected Reserve of the Ready Reserve and who are in the DTP.
11 When it was first adopted, only health care professionals were allowed to enlist in the Army Reserve; all applicants with foreign language skills had to enlist in the regular Army. (PI Mot. Ex. 6, at 2.)
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1. Path to Citizenship 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.
a. Before 9/30/2016 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.)
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b. After 9/30/2016 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 naturalization applications. (See 10/18/2017 Tr. at 21–22; see also May 2017 Action Memo at 2.) But USCIS has refused to process their immigration applications until DOD’s enhanced security screening is completed. See Nio, 2017 WL 3917006, at *4. 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
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[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.
2. October 13, 2017 N-426 Guidance 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:
Standards and Procedures Applicable to Cases in which the Date of the Member’s Enlistment or Accession in either the Active or Reserve Component was Prior to the Date of this Memorandum. The Military Department concerned may certify such a Service Member’s service as honorable for purposes of supporting the member’s naturalization application only if 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 administrative action or proceedings, and is not the subject of a law enforcement or command investigation; AND 2. Background Investigation and Suitability Vetting: The Service member has completed applicable screening and suitability requirements as set forth in Section
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I, 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 an 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.
(10/13/2017 Guidance at 3.) For MAVNIs, the “screening and suitability requirements” are set
forth in Section I, paragraph 2(a) and are as follows:
a completed National Intelligence Agency Check (NIAC); Tier 3 or Tier 5 Background Investigation, as applicable; counterintelligence-focused security review; counterintelligence interview; and a Military Service Suitability Determination (MSSD), favorably adjudicated in accordance with Office of the Under Secretary of Defense for Personnel and Readiness (OUSD(P&R)) memorandum of September 30, 2016, Military Accessions Vital to the National Interest Pilot Program Extension, and OUSD(P&R) memorandum of October 13, 2017, Military Accessions Vital to the National Interest Pilot Program.
(10/13/2017 Guidance at 2.)12
D. Plaintiffs
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,
12 According to the 10/13/2017 Guidance, any N-426s already issued to a person who “has not completed all applicable screening and suitability requirements as set forth in Section I, paragraph 2” will be “recall[ed] and decertif[ied].” (10/13/2017 Guidance at 4.) This applies to the Nio plaintiffs.
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2016, so none has been assigned a date for their IET.13 (Decl. of Mahlon Kirwa, Sept. 12, 2017 (“Kirwa Decl.”), ¶ 6; Decl. of Santhosh Meenhallimath, Sept. 11, 2017 (“Meenhallimath Decl.”), ¶ 8; Decl. of Ashok Viswanathan, Sept. 11, 2017 (“Viswanathan Decl.”), ¶ 12.) Each is currently serving in the Army Reserve DTP and has attended Reserve training since 2016, or January 2017, in the case of plaintiff Meenhallimath. (Kirwa Decl. ¶ 5; Meenhallimath Decl. ¶ 5; Viswanathan Decl. ¶ 5; Glanz Decl. ¶ 4.) Each has filled out and signed their part of an N-426 form, but the military has refused to complete the form. (Kirwa Decl. ¶¶ 8–9; Meenhallimath Decl. ¶¶ 6–10; Viswanathan Decl. ¶¶ 7–11; PI Mot. Exs. 12–13.) Initially, the refusal to execute plaintiffs’ N-426 forms was attributable to DOD’s hold during its N-426 policy review (see 1st Miller Decl. ¶¶ 19–20; PI Mot. Ex. 5; Compl. ¶ 5),14 but the refusal is now mandated by DOD’s October 13th Guidance.
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 action extends plaintiffs’ time of living in a period of uncertain immigration status—with the concomitant limitations that places on their actions—and delays their ability to realize the benefits of citizenship. (Kirwa Decl. ¶¶ 13–18; Meenhallimath Decl. ¶¶ 12–22; Viswanathan Decl. ¶¶ 13–21; see also Nio, 2017 WL 3917006, at *8–9 (finding that the hold on
13 DOD has represented to the Court that their screenings are “underway” but has not provided any further information. (10/18/2017 Tr. at 29.) 14 On September 6, 2017, the Court issued its opinion denying the preliminary injunction in Nio. As to DOD, the Court refused to grant a preliminary injunction against DOD for its N-426 review because DOD had yet to revoke any of the Nio plaintiffs N-426s, and thus, “plaintiffs failed to establish that they w[ould] suffer any irreparable harm absent an injunction.” Nio, 2017 WL 3917006, at *8. That situation has now changed and the Nio plaintiffs have renewed their motion for a preliminary injunction.
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processing of citizenship applications was causing irreparable harm). The parties agree that there are approximately 2000 MAVNIs in the same situation as the three named Kirwa plaintiffs.15 (10/18/2017 Tr. at 114.) II. PROCEDURAL HISTORY
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).16 (Compl. ¶¶ 82–105.)
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
15 The Army “maintain[s] a roster that accounts for the assignment and duty status of all individuals enlisted under the MAVNI program.” (Glanz Decl. ¶ 1.) 16 Count I is a claim under the Declaratory Judgment Act, 28 U.S.C. § 2201, which is not a stand-alone cause of action. Malek v. Flagstar Bank, 70 F. Supp. 3d 23, 28 (D.D.C. 2014). Count II is a claim for preliminary and permanent injunctive relief, but it does not include a distinct cause of action.
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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 Guidance. In light of this significant and abrupt change by DOD, the case was no longer about a single legal issue. The Court therefore concluded that it could no longer collapse the preliminary injunction hearing with the hearing on the merits. (10/18/2017 Tr. at 6.) Accordingly, it ordered full briefing on the preliminary injunction motion to be completed by October 17, 2017 (see Minute Order, Oct. 14, 2017), so that it could hold the hearing as scheduled on October 18, 2017. In response to the Court’s request at the October 18th hearing, the parties filed additional materials on October 19, 2017. (See Notices of Supplemental Filing, ECF Nos. 23–25.) The Court is now in a position to rule on the plaintiffs’ motion for preliminary injunctive relief.
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ANALYSIS I. LEGAL STANDARD
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 (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 (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. Where the government is the opposing party, as here, these final two factors merge. Nken v. Holder, 556 U.S. 418, 435 (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. II. THE MERITS
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).
A. Reviewability of Defendants’ N-426 Policy 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
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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 (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.
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; 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
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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”:
As a general rule, a Soldier is considered to be serving honorably unless a decision has been made, either by the Soldier’s commander or a court martial, to discharge him/her under less than honorable conditions. In the rare cases where the character of a Soldier’s service is questionable, ONLY the Soldier’s commander can decide this issue, and the sole criterion for the decision is: If the Soldier were being discharged today, based on his/her record, what type of discharge would the Soldier receive? If Honorable or General or Under Honorable Conditions, the character of service on the N-426 will read “honorable”. If Under Less than Honorable Conditions, the N-426 character of service item will NOT read “honorable”.
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(PI Reply Ex. 7, at 11.) The military has multiple regulations to judge an enlistee’s honorable service, which make clear that the determination concerns an analysis of the existing military record. For instance, Army Regulation 135-178 states:
The characterization of service upon separation is of great significance to the Solider. It must accurately reflect the nature of service performed. . . . The type of discharge and character of service will be determined solely by the military recording during the current enlistment or period of service . . . . 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
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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.17 See also Petition of Delgado, 57 F. Supp. 460, 461–62 (N.D. Cal. 1944) (concluding that a non-citizen Coast Guard Reservist was “serving honorably in the naval forces of the United States, [was] properly vouched for as provided by law, and [was] therefore entitled to citizenship”).
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 (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, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.”) (internal quotation marks omitted). Indeed, DOD has conceded that certifying Form N-426s is merely ministerial. Counsel for DOD in Nio represented to the Court that “DOD serves a ministerial role in determining if an individual is serving honorably.” (Nio v. United States Dep’t of Homeland Sec., Defs.’ Resp. to Pls.’ Mot. for a Prelim. Inj., June 7, 2017, ECF No. 19, at 36.)18 Accordingly, DOD’s N-426 policy is subject to review as a ministerial task not committed to agency discretion, for there are meaningful standards by which
17 The government did not appeal this portion of the district court’s decision, but the petitioner later appealed the district court’s denial of his motion for attorney’s fees. Cody v. Caterisano, 631 F.3d 136, 141 (4th Cir. 2011). The Fourth Circuit appeared to recognize that the district court could make a meaningful determination of petitioner’s past honorable service for purposes of naturalization by analyzing applicable statutes, regulations, the factual circumstances of the case, and analogous cases. See id. at 142–144. 18 DOD is arguably judicially estopped from changing its position based on a change in litigation interests. See New Hampshire v. Maine, 532 U.S. 742, 749–51 (2001).
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the Court can judge agency action in this context. B. Claims under APA § 706(2) 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).19
1. Arbitrary and Capricious 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, No. 15-5332, 2017 WL 4385259, at *5–10 (D.C. Cir. Sept. 29, 2017); Jicarilla Apache
19 Defendants do not contest that DOD’s current N-426 policy represents final agency action. 5 U.S.C. § 704.
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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, 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.
At the October 18th hearing, defendants made the curious argument that its October 13th Guidance was not subject to judicial review and required no explanation because no formal policy existed before October 13, 2017. (10/18/2017 Tr. at 41, 45.) On the contrary, “the agency must show that there are good reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). For purposes of arbitrary-and-capricious review, the APA “makes no distinction . . . between initial agency action and subsequent agency action undoing or revising that action.” Id.; see also Loving v. IRS, 742 F.3d 1013, 1021 (D.C. Cir. 2014) (an agency’s “interpretation [of a statute], whether old or new, must be consistent with the statute”); Handley v. Chapman, 587 F.3d 273, 282 (5th Cir. 2009) (explaining that courts review a policy change under the same standards as a “policy drafted on a blank slate”). Whether DOD is taking an initial agency action or changing a longstanding policy, or practice, it still must provide a reasoned explanation for its action.
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–
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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.
2. Retroactivity 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.
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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 capacity, for a period of time, that permits DOD to
make “an informed determination” as to whether such service was honorable. (10/13/2017
Guidance at 3.) These open-ended requirements will double and possibly even triple the time it
takes for plaintiffs to receive N-426s, for the Tier 5 investigation, just one step in the screening
process, will take over 400 days. DOD represented to plaintiffs that they would naturalize, or at
least have the protection of being in the process of pursuing expedited citizenship, shortly after
enlistment. Instead, the October 13th Guidance stands in stark contrast since the new projected timetable deprives the enlistees of their right to apply for an expedited path to citizenship.20
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
20 In exchange for enlisting in the military for a total of 8 years’ service, DOD promised MAVNI enlistees the right to apply for an expedited path to citizenship. The MAVNI Information Paper, signed by plaintiffs and a DOD official at the time of enlistment, provided that “The Army, along with [USCIS] has implemented expedited citizenship processing.” (MAVNI Information Paper at 3 (emphasis added).) Furthermore, the legislative history to 8 U.S.C. § 1440 explains that it was meant to “provide[] expedited naturalization for members of the Selected Reserves during military conflicts.” National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108136, 117 Stat 1443, S7280 (2003). USCIS’s Policy Guidance confirms this. See USCIS Policy Manual, Vol. 12, Part I, Ch. 1, § A (“Members of the U.S. armed forces and their families are eligible for naturalization and ensure that qualified applicants are naturalized expeditiously through the military provisions.”) Therefore, DOD is depriving enlistees of their lawful right to apply for expedited citizenship.
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rights and obligations of plaintiffs and similarly-situated individuals. See Bennett v. Spear, 520 U.S. 154, 177–78 (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.21
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 ‘substantively inconsistent’ with a prior agency practice and attaches new legal consequences to events completed before its enactment.” Arkema, 618 F.3d at 7 (citation omitted). “Even where a rule merely narrows ‘a range of possible interpretations’ to a single ‘precise interpretation,’ it may change the legal landscape in a way that is impermissibly retroactive.” Id.; see also Nat’l Min. Ass’n, 292 F.3d at 859. Put another way, if the new rule
21 As now Justice Gorsuch explained, [T]he more an agency acts like a legislator—announcing new rules of general applicability—the closer it comes to the norm of legislation and the stronger the case becomes for limiting application of the agency’s decision to future conduct. The presumption of prospectivity attaches to Congress’s own work unless it plainly indicates an intention to act retroactively. That same presumption, we think, should attach when Congress’s delegates seek to exercise delegated legislative policymaking authority: their rules too should be presumed prospective in operation unless Congress has clearly authorized retroactive application. De Niz Robles v. Lynch, 803 F.3d 1165, 1172 (10th Cir. 2015).
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“effects a substantive change from the agency’s prior regulation or practice,” then it is impermissibly retroactive. Ne. Hosp. Corp. v. Sebelius, 657 F.3d 1, 14 (D.C. Cir. 2011) (citation omitted). There can be no dispute that the October 13th Guidance changes the legal landscape: DOD has never applied the criteria listed therein to MAVNI enlistees before now. By promulgating the October 13th Guidance, DOD attaches new legal meaning to the concept of honorable service in the Selected Reserve. Assuming arguendo that DOD has authorization to interpret an immigration statute, DOD’s “interpretation” of 8 U.S.C. § 1440 clearly marks a substantive change from its past practice of certifying a Form N-426 based on an enlistee’s past service at the time he submits the N-426 for certification.
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
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counterbalanced by any significant statutory interests. C. Claims under APA § 706(1) 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. “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 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).
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 take any action on plaintiffs’ N-426s. Based on the record and for the reasons discussed herein, the Court concludes that plaintiffs are likely to succeed in proving—at least for MAVNI enlistees who have enlisted prior to October 13, 2017, and who completed sufficient service in the Selected Reserve—DOD must expeditiously certify or deny their N-426s based on their existing military records.
D. Claim under Mandamus Act “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
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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 (2004) (noting that “mandamus may not issue so long as alternative avenues of relief remain available”). III. IRREPARABLE HARM
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
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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).22 Defendants
argue that plaintiffs are not harmed because they can still file for naturalization after they receive
their N-426s. This argument is nothing short of illogical. The government represented to
plaintiffs that, in exchange for 8 years of military service, they would be able to pursue an
expedited path to citizenship shortly after enlistment. Now that time has been extended by two
or three years.
Furthermore, every day of delay leaves plaintiffs in limbo and in fear of removal.
(Compl. ¶¶ 8–9.)23 Plaintiffs live in constant fear that they will lose their work or student visas,24
22 In the context of constitutional deprivations, irreparable harm may be presumed simply because of a delay in the ability to exercise constitutional rights. Aziz v. Trump, 234 F. Supp. 3d 724, 737 (E.D. Va. 2017) (“As a matter of law, the threat of an Establishment Clause violation in and of itself constitutes irreparable harm.”) (citing Newsom v. Albermarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003)); Hill v. Williams, No. 16-cv-02627, 2016 WL 8667798, *9 (D. Col. Nov. 4, 2016) (unpublished) (“Where First Amendment rights are at issue, ‘the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’”) (quoting Elrod v. Burns, 427 U.S. 347, 373–74 (1976)). “[I]t is well-established that acts by Government agencies in derogation of statutory rights of the public or certain individual members of the public can constitute irreparable injury.” Gates v. Schlesinger, 366 F. Supp. 797, 800 (D.D.C. 1973). Here the delay “violates a statutory right to timely decision making,” see Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 557 (D.C. Cir. 2015), and that delay cannot be repaired by damages awarded later or by further adjudication. 23 DOD has informed MAVNI enlistees “[i]f you are discharged from the Army before you become a citizen you may no longer have a valid immigration status.” (PI Mot. Ex. 15, at 2.) 24 Defendants do not dispute that military enlistment exhibits an intent to immigrate, which can jeopardize any non-immigrant visa status. For example, Current DHS guidance indicates that “compensation during Reserve duty . . . marks the beginning of employment and the [Designated School Officials] must terminate the [Student and Exchange Visitor Information System] SEVIS record.” (PI Mot. Ex. 14, at 3; see also Kirwa Decl. ¶ 2 (entered US on a student visa).)
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or be discharged, deported, and subject to harsh punishment in their country of origin for joining a foreign military. (Compl. ¶ 72.) Defendants maintain that a fear of deportation is too speculative to establish irreparable harm. It is true that some courts have found, in some circumstances, that a risk of deportation is too speculative to show irreparable harm, see Carlsson v. U.S. Citizenship & Imm. Servs., No. 12-7893, 2012 WL 4758118, at *9 (C.D. Cal. Oct. 3, 2012) (unpublished), but that is not the issue here for plaintiffs suffer from more than mere fear. See Vargas, 682 F. Supp. at 595 (“[T]o deny plaintiffs the right of filing in this country is to deny them of the benefits of protection from deportation and work authorization, as well as the right to travel outside this country without forfeiting these benefits.”) DOD is blocking access to an existing legal avenue for avoiding removal. See Santillan v. Ashcroft, No. 04-2686, 2004 WL 2297990, at *12 (N.D. Cal. Oct. 12, 2004) (unpublished) (granting class certification to persons pursuing lawful permanent resident status “to whom USCIS ha[d] failed to issue evidence of registration”). By preventing plaintiffs from submitting valid naturalization applications to USCIS, defendants are depriving plaintiffs of “lawful presence” for purposes of ICE enforcement. (See Nio, Declaration of Rachel Canty, July 28, 2017, ECF No. 25-3, ¶ 6 (explaining that lawful presence “describes the result of notifying an alien that DHS has made a non-binding decision to forbear from pursuing his removal for a period of time.”).) Pretending otherwise ignores ICE’s own representations: (1) “Generally ICE does not initiate removal proceedings against individuals in the [MAVNI] program if they have no valid immigration status, so long as they can demonstrate active participation in the MAVNI program and have a naturalization application pending with [USCIS],” (Asher Decl. ¶ 5 (emphasis added)), and the submission of a MAVNI “application provides the enlistee continued lawful presence in the United States while the application is pending.” (PI Mot. Ex. 14, at 2.) While it is true that
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plaintiffs are not guaranteed that they will not be discharged before attaining citizenship, the threat of removal proceedings, which plaintiffs face without certified N-426s, is a serious one. See Padilla v. Kentucky, 559 U.S. 356, 373 (2010) (describing “[t]he severity of deportation” as “the equivalent of banishment or exile”).
In sum, defendants’ refusal to certify plaintiffs’ N-426s based on their past honorable service causes irreparable injury to plaintiffs and the proposed class. IV. HARM TO DEFENDANTS/PUBLIC INTEREST/BALANCE OF THE EQUITIES
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. V. PROVISIONAL CLASS CERTIFICAITON
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
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enlisted on October 13, 2017 and after. CONCLUSION
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.

Date: October 25, 2017

/s/ Ellen Segal Huvelle ELLEN SEGAL HUVELLE United States District Judge

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 Case 1:17-cv-01793-ESH-GMH Document 32 Filed 10/27/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAHLON KIRWA, et al., Plaintiffs,
v. UNITED STATES DEPARTMENT OF DEFENSE, et al.,
Defendants.

Civil Action No. 17-1793(ESH)

AMENDED ORDER In response to defendants’ motion for clarification, ECF No. 30, of the Court’s prior Order granting preliminary injunctive relief, ECF No. 28, the Court issues this Amended Order granting preliminary injunctive relief. It is hereby ORDERED that defendants are preliminarily enjoined from refusing to sign and issue Form N-426s to members of the Selected Reserve pursuant to Section II of DOD’s October 13, 2017 Guidance; it is further ORDERED that defendants are preliminarily enjoined from refusing to certify MAVNI enlistees who have served for one day or more in the Selected Reserve as having honorable service, except as related to the conduct of an individual plaintiff or class member as reflected in that soldier’s service record and based on sufficient grounds generally applicable to all members of the military; it is further ORDERED that, after members of the provisionally-certified class submit or resubmit

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N-426s to their military officer ranked O6 or higher, defendants should use their best efforts to certify or deny Form N-426s, as was done for the Nio plaintiffs, within two business days of receipt of Form N-426; it is further
ORDERED that for purposes of the preliminary injunction the Court provisionally certifies a class that includes (1) MAVNI enlistees, (2) who enlisted prior to October 13, 2017, (3) who have served in the Selected Reserve, and (4) not received a completed Form N-426; it is further
ORDERED that plaintiffs Mahlon Kirwa, Santhosh Meenhallimath, and Ashok Viswanathan are provisionally certified as representatives of the class pursuant to Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure; and it is further
ORDERED that plaintiffs’ counsel is appointed to represent the provisional class. SO ORDERED.
/s/ Ellen Segal Huvelle ELLEN SEGAL HUVELLE United States District Judge Date: October 27, 2017
2

 
 Case 1:17-cv-01793-ESH-GMH Document 33 Filed 11/03/17 Page 1 of 37

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAHLON KIRWA, et al.
on behalf of themselves and those similarly situated,
PLAINTIFFS, v. UNITED STATES DEPARTMENT OF DEFENSE, et al.,
DEFENDANTS.

) ) ) ) ) No. 1:17-cv-01793-ESH ) ) ) AMENDED COMPLAINT ) ) ) ) ) ) ) ) )

COMPLAINT 1. Plaintiffs bring this action on behalf of themselves and similarly-situated United States soldiers who are the victims of a misguided and unlawful attempt to deprive them of their right to seek United States citizenship. As non-citizen soldiers serving honorably during wartime, Plaintiffs have an absolute statutory right to apply to become naturalized U.S. citizens. But, until ordered to do so by the Court via a preliminary injunction entered in this case on October 25, 2017, Defendants refused to certify their naturalization application eligibility as required by law, leaving these soldiers to languish in immigration limbo, notwithstanding their ongoing military service to this Nation. Defendants’ actions are contrary to law and a disservice to these Plaintiff-soldiers.

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2. Defendants recruited and enlisted each Plaintiff into the United States Army under the Military Accessions Vital to the National Interest (“MAVNI”) program, under which non-U.S. citizens with critical language and/or medical skills deemed by the Department of Defense (“DoD”) to be “vital to the national interest” serve in the United States Armed Forces. DoD recruits individuals into this “vital” program, in part, by promising enlistees a “fast track” to U.S. citizenship. Now, without authorization or justification to do so, Defendants have broken that promise and are making a mockery of the expedited path to citizenship that Congress prescribed through policies that unlawfully block, interfere with, and delay naturalization for these honorably serving soldiers.
3. Each MAVNI Plaintiff here is serving in the Selected Reserve of the Ready Reserve (“Selected Reserve”) and is entitled to apply for naturalization under federal law, including 8 U.S.C. § 1440. An initial step in the naturalization application process is the certification of Plaintiffs’ honorable service in the Selected Reserve. The Department of Homeland Security (“DHS”), which is the federal agency responsible for processing and adjudicating all naturalization applications, requires these certifications to be made via DHS Form N-426, a form specifically designated for this purpose. Completing the N-426 certification is a ministerial task. The service member’s military branch simply indicates – by checking a box “yes” or “no” – whether the soldier (e.g., a Plaintiff or a class member) is serving honorably based on the existing military record for that soldier. The military has performed this ministerial task thousands of times before without complication or ordeal, including approximately 500 times in recent months alone.
4. Due to their status as soldiers serving in the Selected Reserve, Plaintiffs and the class satisfy the threshold legal condition necessary to obtain the Form N-426 certifications. The
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federal statute enabling naturalization for these soldiers, 8 U.S.C. § 1440, is clear and unambiguous:
[a]ny person who, while an alien or a noncitizen national of the United States, has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States . . . during any . . . period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict . . . may be naturalized as provided in this section . . . . 8 U.S.C. § 1440(a) (emphasis added). 5. Notwithstanding this express and well-established federal law, Defendants have implemented new policies that withhold the issuance of N-426s to statutorily eligible soldiers until DoD has determined – for its own purposes – that these men and women comply with certain DoD-imposed naturalization criteria. Through these policies, DoD has seized control over naturalizations under 8 U.S.C. § 1440 and has assigned to itself a naturalization gate-keeping role that it has no power or authority to assume. 6. One such policy was issued on August 17, 2017 (“DoD’s August N-426 Policy”), which instructed DoD Reserve commanders to cease issuing N-426s to Selected Reservists until the service member had served in an active duty status. 7. On October 13, 2017, in response to this and related litigation, DoD issued its most recent N-426 policy (“New DoD N-426 Policy”). Without withdrawing DoD’s August N-426 Policy, the New DoD N-426 Policy specifically imposed pre-conditions to DoD’s issuance of N-426s, including an active-duty service requirement, a waiting period requirement, a minimum period of service requirement, a physical presence requirement, a geographic location requirement, and other conditions that are contrary to law.
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8. The New DoD N-426 Policy expressly forbids the issuance of N-426s until

Selected Reserve soldiers satisfy specific conditions that DoD deems necessary to make the

soldier worthy of naturalization. These conditions exceed DoD’s ministerial duties and functions

in the naturalization process pursuant to 8 U.S.C. § 1440 – which is limited to the duty to certify

whether these soldiers have served honorably – and are intended to prevent Plaintiffs and the

class from applying for naturalization until DoD deems them fit to do so. And Defendants

implemented these policies in blatant disregard for the immense suffering and mounting harm

that their actions have caused to soldiers under their command.

9. On October 25, 2017, the Court granted Plaintiffs’ Motion for a Preliminary

Injunction and issued an order (amended on October 27, 2017) enjoining Defendants from

enforcing aspects of the New DoD N-426 Policy and requiring Defendants to use their “best

efforts” to complete and provide to Plaintiffs and the class N-426 certifications within two

business days of receipt. The Court also provisionally certified the class. As of the date of this

Amended Complaint, Defendants were not in compliance with the preliminary injunction.

10. Defendants’ policy of denying N-426 certifications to Plaintiffs and other

Selected Reservists stands in stark contrast to past practices. Until recently – i.e., before DoD

implemented these policies and before it began otherwise interfering with the naturalization

process for MAVNI applicants – soldiers in Plaintiffs’ position sought (and obtained)

naturalization through a well-established and orderly process that was consistent with the law:

STEP ONE:

MAVNI soldiers obtained N-426 certifications of their honorable service from the military and submitted them to DHS with their naturalization applications,

STEP TWO: DHS expedited the naturalization paperwork, and

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STEP THREE: DHS adjudicated the applications using the same fundamental citizenship factors that apply to all persons seeking to be naturalized.
11. Thousands of Selected Reservists followed these steps in past years, obtaining their N-426 honorable service certifications from DoD with no fanfare – and often in minutes after as little as one day of service – and submitting them with their naturalization applications to DHS. With no notice to Plaintiffs and the class, who relied on the promise of an expedited naturalization adjudication and whose enlistment contracts require them to apply for citizenship promptly after enlistment, that once swift, orderly, lawful, and straightforward process came to a screeching halt in late 2016 and has morphed into a process characterized by DoD disarray, delay, dishonor, and a dereliction of duty.
12. In a related action pending in this Court, Nio, et al. v. United States Department of Homeland Security, et al., No. 17-cv-998-ESH (D.D.C.) (the “Nio Action”), other MAVNI soldiers (who had obtained N-426 certifications from DoD based on their Selected Reserve service) are challenging, among other things, unlawful actions by DoD and others affecting STEP TWO and STEP THREE described above. This action focuses on STEP ONE – namely, the certification of honorable service itself by DoD. Without that certification – the ministerial action which DoD’s policy withholds – Plaintiffs and similarly-situated soldiers who are serving honorably in the military cannot file for naturalization and thus advance to STEP TWO.
13. Defendants have no legal authority over the implementation or enforcement of the immigration and naturalization laws of the United States, or over the adjudication of naturalization applications. Congress, which has the constitutional obligation to establish a Uniform Rule of Naturalization, enacted laws assigning naturalization duties solely to DHS. Yet, Defendants have inserted themselves into the naturalization process by implementing
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policies that block and impede the issuance of the N-426 certifications that these soldiers need to pursue naturalization and that they are entitled to receive as a matter of law.
14. Defendants’ refusal to furnish certifications to these Selected Reservists is alarming, as their position brazenly violates federal law, regulations, and other promulgated rules. In actuality, Defendants’ N-426 policies are nothing more than a thinly-veiled effort – albeit poorly-reasoned and litigation driven – to deny U.S. citizenship to certain MAVNI soldiers because DoD’s views about the MAVNI program have changed over time.
RELATED LAWSUIT 15. In the Nio Action, commenced on May 24, 2017, ten individuals (the “Nio Plaintiffs”) brought a class action suit against DoD, DHS, United States Citizenship and Immigration Services (“USCIS”), and others (collectively, the “Nio Defendants”) alleging that the Nio Defendants were improperly depriving the Nio Plaintiffs of their lawful opportunity and right to become naturalized United States citizens. Specifically, the Nio Plaintiffs allege that the Nio Defendants have impeded and delayed the adjudication of their naturalization applications by holding their applications and/or imposing on them additional citizenship qualifications and criteria that have no basis in law, particularly “enhanced DoD security checks,” and/or revoking or threatening to revoke the N-426 honorable service certifications previously issued to the Nio Plaintiffs and the Nio class (“Nio Class”), including pursuant to the New DoD N-426 Policy. The Nio Action currently is pending before this Court. On October 27, 2017, the Court in the Nio Action issued a preliminary injunction enjoining aspects of the New DoD N-426 Policy. 16. This Amended Complaint involves common issues of fact and arises out of the same core events as the Nio Action. For example, both lawsuits involve DoD’s unlawful interference in the naturalization process of Selected Reservists recruited through the MAVNI
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program, including through the New DoD N-426 Policy. If Plaintiffs and the class obtain the final relief they seek here and receive the honorable service certifications to which they are entitled, allowing them to apply for naturalization, they will be placed into the same circumstances as the Nio Class and should fall within the scope of the Nio Class in the Nio Action. This action also involves the same issues of injury and harm to the respective plaintiffs and classes. In both cases, applications for naturalization for MAVNI soldiers are being delayed, resulting in similar or identical injuries, harms, and difficulties.
JURISDICTION 17. This action arises under section 329 of the Immigration and Nationality Act of 1952 (“INA”), codified at 8 U.S.C. § 1440, and the United States Constitution. This Court has jurisdiction over this action under 28 U.S.C. § 1331 (federal question) and the APA, 5 U.S.C. § 701 et seq.
VENUE 18. Venue is proper in the Court under 28 U.S.C. § 1391(e) because Defendant Mattis is an officer of the United States acting in his official capacities, and the United States Department of Defense is present in this district. Further, Defendant Mattis performs official duties in Washington, D.C.
PARTIES 19. Plaintiff Mahlon Kirwa resides in Orangeburg, South Carolina. Mr. Kirwa enlisted in the Selected Reserve through the MAVNI program in December 2015 and serves with the U.S. Army’s 414th Chemical Company in Orangeburg, South Carolina.
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20. Plaintiff Santhosh Meenhallimath resides in Eden Prairie, Minnesota. Mr. Meenhallimath enlisted in the Selected Reserve through the MAVNI program in February 2016 and serves with the U.S. Army’s 353rd Transportation Company in Buffalo, Minnesota.
21. Plaintiff Ashok Viswanathan resides in Eden Prairie, Minnesota. Mr. Viswanathan enlisted in the Selected Reserve through the MAVNI program in June 2016 and serves with the U.S. Army’s 353rd Transportation Company in Buffalo, Minnesota.
22. Defendant United States Department of Defense is responsible for the overall administration of military policy, which includes the MAVNI program, and issued the N-426 policies that are among the issues in this Amended Complaint.
23. Defendant James Mattis is sued in his official capacity as Secretary of Defense of the United States Department of Defense. As Secretary of Defense, Gen. Mattis is responsible for the overall administration of DoD, which includes the MAVNI program.
BACKGROUND AND FACTS The MAVNI Program and Plaintiffs’ Service Commitments 24. Typically, U.S. Armed Forces enlistees must meet U.S. citizenship or permanent residence requirements. 10 U.S.C. § 504(b). However, 10 U.S.C. § 504(b)(2) authorizes the Secretary of Defense and the Secretaries of the military service departments to enlist certain non-U.S. citizens and non-permanent residents if enlistment of such individuals is “vital to the national interest.” Under this authority, DoD initiated the MAVNI program in 2008, and the program has continued to operate through the present, with brief interruptions and enlistment suspension periods. According to a DoD official, DoD has suspended new MAVNI enlistments since approximately June 2016.
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25. The MAVNI program is designed to attract two types of recruits into the military: (a) health care professionals and (b) individuals who possess critical foreign language skills. DoD officials acknowledge that soldiers with these skills “are necessary to sustain effective military operations.”
26. Under MAVNI, DoD encouraged qualified individuals to enlist, touting the opportunity of an “expedited” path to U.S. citizenship. DoD contractually mandated that MAVNI enlistees – including Plaintiffs – apply for citizenship “as soon as the [service branch (e.g., the Army)] has certified [the MAVNI soldier’s] honorable service.” This citizenship opportunity was a powerful enticement to Plaintiffs and other such qualified individuals who contemplated MAVNI enlistment.
27. Plaintiffs are soldiers who possess the skills that DoD has deemed “vital to the national interest.” They enlisted under the MAVNI program, signed MAVNI enlistment contracts, and are serving honorably in the Selected Reserve. Each Plaintiff has taken the military service oath and has a military rank. Each 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. Each Plaintiff is assigned to a U.S. Army Selected Reserve unit, and each has served with his unit by participating in multiple Selected Reserve drill periods.
28. The commitment that each Plaintiff has undertaken to serve as a soldier in the U.S. Army Reserve is serious and substantial. As the standard MAVNI Army Reserve enlistment contract states, an agreement to enlist “is more than an employment agreement. It effects a change in status from civilian to military member of the Armed Forces.” As such, per the Enlistment/Reenlistment Document Armed Forces of the United States (DD Form 4/1), soldiers (a) are “[r]equired to obey all lawful orders and perform all assigned duties,” (b) are
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“[s]ubject to the military justice system” and, among other things, “may be tried by military courts-martial,” (c) may be “[r]equired upon order to serve in combat or other hazardous situations,” and (d) must otherwise “meet acceptable military standards” such that any failure to meet their service obligations as Selected Reservists can result in demotion and/or discharge from the service under other than honorable conditions.
29. As members of the U.S. military, Plaintiffs may be required to compromise individual liberties that are considered fundamental in ordinary civilian American society. As the enlistment contracts provide, a service member’s freedom of religious expression may be curtailed: “I understand that the Army cannot guarantee accommodation of religious practices, and that religious accommodations may be modified or revoked based on changes in military necessity.” A service member’s freedom of speech, expression, and association also may be curtailed. Consequently, prior to enlistment, the Army provides recruits with USMEPCOM Form 601-23-4 – “Restrictions on Personal Conduct in the Armed Forces” – which specifies that military service entails behavioral limitations not applicable to civilians in America:
Military life is fundamentally different from civilian life. The military has its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society. These are necessary because military units and personnel must maintain high standards for morale, good order and discipline, and unit cohesion that are essential for combat effectiveness. 30. As a member of the Selected Reserve, each soldier “may, at any time and without [his/her] consent, be ordered to active duty to complete a total of 24 months of active duty.” In times of war or national emergency declared by Congress, these soldiers may, without their consent, “be ordered to serve on active duty for the entire period of the war or emergency and for six (6) months after its end.” As members of the Selected Reserve, these soldiers may, without
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their consent, be ordered to 365 days of consecutive active duty whenever “the President determines that it is necessary to augment the active forces for any operational mission or for certain emergencies.”
The Applicable Statutory and Regulatory Framework 31. The Constitution vests Congress the power to establish a uniform Rule of Naturalization. U.S. Constitution, Art. 1, Sect. 8, Cl. 4. One naturalization statute enacted by Congress pursuant to its Constitutional authority is the INA. The provision of the INA applicable in this case is simple and clear. 8 U.S.C. § 1440(a), provides that:
[a]ny person who, while an alien or a noncitizen national of the United States, has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States . . . during any . . . period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force[1] . . . may be naturalized as provided in this section . . . . 32. The key language here is that certain non-U.S. citizens qualify for naturalization under this section with honorable service “as a member of the Selected Reserve of the Ready Reserve or in an active-duty status.” 8 U.S.C. § 1440(a) (emphasis added). This disjunctive language of the statute is clear and unequivocal: honorable service in the Selected Reserve is an independent basis for naturalization. Stated differently, naturalization under this statute is not dependent on an individual performing active-duty service. 33. The history of the statute reinforces the separate and independent import of these two clauses. While the prior version of the statute limited naturalization to those serving in an
1 On July 3, 2002, the President determined that the military is engaged in armed conflict. Exec. Order No. 13269, 67 Fed. Reg. 45,287 (July 3, 2002). Executive Order No. 13269 has remained in effect through the present.
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active-duty status, the National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, 117 Stat. 1392, 1693 (2003) amended the statute to add those serving as members of the Selected Reserve. Thus, Congress made clear that naturalization is available based on either service as a member of the Selected Reserve or service in active-duty status.
34. DHS, which administers the naturalization laws and adjudicates naturalization applications under Section 1440(a), reads and applies this provision in the same way. DHS’s final rulemaking for this statute confirms that it was amended in 2003 to include “not only [] individuals who served honorably in an active duty status . . . but also [] individuals who have served honorably as members of the Selected Reserve. . . .” 75 Fed. Reg. 2785-01 (2010) provides (with emphasis added):
[T]his final rule extends eligibility for naturalization to include those individuals who have served honorably in the U.S. Armed Forces either in an active duty status or as a member of the Selected Reserve of the Ready Reserve. See revised 8 CFR 329.2(a). In addition, this rule amends the title of 8 CFR part 329 to include service in the Selected Reserve of the Ready Reserve. Currently, the title only lists active duty service as a basis for naturalization where service occurred during specified periods of hostilities. Like Section 1440, the disjunctive “either . . . or” is unequivocal. 35. The regulations implementing 8 U.S.C. § 1440 are located at 8 C.F.R. Part 329, entitled “SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: PERSONS WITH ACTIVE DUTY OR CERTAIN READY RESERVE SERVICE IN THE UNITED STATES ARMED FORCES DURING SPECIFIED PERIODS OF HOSTILITIES.” Section 329.2 provides that a service member is eligible for naturalization under 8 U.S.C. § 1440 upon establishing that 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 in the Armed Forces of the United States during . . . [a]ny other period as may be designated by the President
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in an Executive Order pursuant to section 329(a) of the Act . . . .” Like the statute, the disjunctive language of DHS’s legislative rules under Section 329.2(a) is clear and direct. Service as a member of the Selected Reserve and service in an active-duty status provide alternative paths to citizenship under Section 1440.
36. Volume 12 of the USCIS Policy Manual, the USCIS’s centralized repository for its immigration policies, explains the laws and policies that govern United States citizenship and naturalization, and further confirms that service in the Selected Reserve counts as qualifying service under Section 1440. USCIS Policy Manual Volume 12, Part I, Chapter 3, current as of July 26, 2017 (“Members of the U.S. armed forces who serve honorably for any period of time during specifically designated periods of hostilities may be eligible to naturalize. One day of qualifying service is sufficient in establishing eligibility.”).
37. Thus, just as one day of active-duty service is sufficient for naturalization eligibility, so is one day of Selected Reserve service. On July 7, 2017, DHS admitted this directly in sworn testimony to this Court (emphasis added): “As members of the U.S. Armed Forces during a period of hostilities, MAVNI recruits are eligible to apply for naturalization under section 329(a), 8 U.S.C. § 1440, once they join the military.”
38. DHS regulations also confirm that the service requirement can be satisfied either through any current service that is honorable or a separation from military service under honorable conditions: “[h]onorable service and separation means service and separation from service which the executive department under which the applicant served determines to be honorable . . . .” 8 C.F.R. 329.1 (emphasis in original).
39. The N-426 Form is the official form established by USCIS for certification of a soldier’s “honorable service” status. The form – entitled “USCIS Form N-426: Request for
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Certification of Military or Naval Service” – reflects the statutory option of such service either via Selected Reserve membership or active-duty status, does not indicate any minimum period of service for naturalization eligibility, and reflects that current or past service is qualifying.
40. The service department “under which the applicant served or is serving” certifies the member’s honorable service to USCIS officials. 8 C.F.R. 329.4. DoD previously had shown no confusion (at least until the unlawful actions complained of herein) regarding the ability to naturalize based on service in the Selected Reserve. In fact, the Army recited the statutory framework for citizenship in the standard enlistment contract:
3. I understand that I am enlisting under a federal law that allows the Secretary of the Army to authorize the enlistment of certain non-citizens of the United States (10 U.S.C. 504(b)(2)). I also understand that I am enlisting during a period of time in which any alien who serves honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air or naval forces of the United States may apply for United States Citizenship (8 U.S.C. 1440). . . . 4. In 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. I understand that the Army does not grant U.S. citizenship, and the Army does not guarantee that my application for U.S. citizenship will be approved.
Defendants Are Withholding Their Mandatory and Ministerial Duties 41. Under federal law, the authority to administer and enforce all laws relating to the immigration and naturalization of aliens is vested in DHS and its component agency, USCIS. Defendants have no legal authority to implement or enforce the immigration and/or naturalization laws of the United States. 42. By statute, Defendants’ role in the naturalization of MAVNIs is compulsory and ministerial. Indeed, Defendants admitted to this Court in the Nio Action that “DoD serves a ministerial role in determining if an individual is serving honorably[.]” The service member’s
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executive department (i.e., service branch) merely certifies to DHS – the agency responsible for adjudicating and conferring citizenship – the service member’s honorable service. DHS created and requires the use of Form N-426 for this purpose.
43. Form N-426 instructs the military to consult a soldier’s existing service records and, on that basis, designate “yes” or “no” as to whether the soldier’s service is “honorable.” Because the form can be completed through a simple service record look-up, USCIS specifically authorizes that designation to be certified by “personnel office, administrative unit, command, or human resources department” personnel.
44. The choice on the form is binary. For service members eligible to apply for naturalization under 8 U.S.C. § 1440, either the soldier is serving honorably or not, based on the individual’s service record. Neither the form nor the statute authorizes DoD to refuse to make that choice or to otherwise withhold making the designation for Selected Reserve soldiers who have not yet served in an active-duty status, have not served for minimum periods, have not been resident in the United States for long enough, have not passed a Tier 3 or Tier 5 security investigation, have not received a so-called military suitability (or other military-specific) determination, have not served in a certain “capacity,” or for any other unlawful reason.
45. Yet, in disregard and defiance of the relevant statutes and implementing regulations, Defendants are withholding issuance of N-426 certifications to Plaintiffs and similarly-situated MAVNI soldiers and thereby impeding, depriving, and preventing the exercise of their statutory right to seek naturalization.
Defendants’ Unlawful N-426 Withholding and Unlawful “Active-Duty Status” Policy 46. Plaintiffs have fulfilled their obligations under the law and their enlistment
contracts. They possess the language and/or medical skills deemed “vital” by DoD. They
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enlisted as members of the Selected Reserve – with military ranks – during a period of armed conflict, thereby promoting a “vital national interest.” They are serving in the Selected Reserves, including by attending drills with their units, and are doing so honorably.
47. Defendants, contrary to the plain language of federal law, including 8 U.S.C. § 1440, have blocked Plaintiffs’ “expedited” path to citizenship by refusing to certify Plaintiffs’ honorable service as members of the Selected Reserve.
48. 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. According to Defendant officials, “DoD is not certifying any new MAVNI N-426s” and pursuant to its policy, DoD may rescind prior honorable service certifications that Selected Reserve MAVNIs received without active-duty service. This policy, on its face, unlawfully disrupts and interferes with the naturalization processing of MAVNI Selected Reservists. DHS will not accept, process, or adjudicate a naturalization application from a Selected Reservist if that application does not include an N-426 signed by the military.
49. DoD’s policy is clear and final, and it is negatively impacting Plaintiffs and similarly-situated MAVNI soldiers. On July 7, 2017, a DoD official submitted sworn testimony to the Court in the Nio Action, confirming that “[p]resently, DoD is not certifying any new MAVNI N-426s.”
50. Thereafter, on July 28, 2017, the same DoD official submitted another sworn statement, this time attesting that “DoD has recently determined that the IDT drill periods performed by members of the Selected Reserve . . . are defined in law as not being creditable active duty service . . . and, standing alone, do not qualify for certification of honorable service under 8 U.S.C. § 1440.”
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51. On August 17, 2017, Defendants implemented DoD’s August N-426 Policy via a memorandum from an Army Lieutenant General to commands to which MAVNI Selected Reservists are assigned. The subject of that memorandum is “Certification of Honorable Service Pursuant to 8 U.S. Code § 1440,” and it orders as follows:
Effectively immediately, I withhold authority to certify the honorable service (N-426) of Soldiers who have not yet attended Initial Entry Training (IET). Commanders seeking certification for Soldiers who have not attended IET must provide a detailed justification to the OCAR, G1 that includes an explanation of all periods of active-duty service. 52. On August 23, 2017, DoD representatives confirmed to this Court that “[t]his document indicates . . . that effective immediately [the issuance of N-426s has] been withheld” and that the message that had been sent out to “everybody in the field” was “not to issue them [N-426s]” and “not to issue anymore [N-426s].” 53. On August 30, 2017, DoD further confirmed to this Court that DoD is not certifying any MAVNI N-426s while DoD “undertakes a review of the MAVNI program.” And, in sworn testimony on that same day, DoD admitted that the DoD’s August N-426 Policy (1) withholds, for an indefinite period of time, N-426 certifications, and (2) was a response to DoD concerns that Army officials “prematurely” certified N-426s in the past. 54. Plaintiffs commenced this litigation on September 1, 2017, following the implementation of DoD’s August N-426 Policy. The complaint challenged, among other things, Defendants’ withholding of N-426s from Plaintiffs and other Selected Reservists who were serving honorably in the Selected Reserve but had not yet served in an active duty capacity. 55. On September 6, 2017, in the Nio Action, the Court issued a memorandum decision in which it questioned the lawfulness of DoD’s assertions that Selected Reservists are
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not eligible for naturalization under 8 U.S.C. § 1440 until they have served in an active duty status. The Court expressed similar views during court hearings in the Nio Action.
56. Shortly thereafter, on September 19, 2017, Plaintiffs filed a motion for preliminary injunction that would order Defendants to issue N-426s to Plaintiffs and others without waiting for them to serve in an active-duty capacity and without imposing other unlawful requirements. This Court, with Defendants’ express agreement that the issues in the original complaint were purely legal, converted the preliminary injunction motion to a summary judgment motion and set a briefing schedule followed by a hearing on the merits for October 18, 2017.
57. On October 10, 2017, Defendants filed their opposition to the motion for summary judgment. The opposition made no mention of any pending change in DoD’s N-426 Policy. On October 13, 2017, the date set for Plaintiffs to file their summary judgment reply brief, DoD issued the New DoD N-426 Policy. The Government “notified” the Court of the New DoD N-426 Policy by attaching it to a Weekly Status Report filing in the Nio Action on October 13, 2017. Thereafter, the Court issued an order directing the parties to address the New DoD N-426 Policy and converting the pending motion back to a preliminary injunction motion.
58. On October 25, 2017, after further briefing and argument, the Court granted Plaintiffs’ Motion for a Preliminary Injunction and provisionally certified the class. The October 25 order (as amended on October 27) (the “PI Order”) enjoined certain aspects of the New DoD N-426 Policy and ordered Defendants to issue N-426s to Plaintiffs and the class.
59. The New DoD N-426 Policy is unlawful on its face in numerous respects. In direct contravention of Section 1440(a), for instance, the new policy mandates that MAVNIs who enlist on or after October 13, 2017 may not receive N-426 certifications until they have
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served in an active duty status. Likewise, in violation of law, the new policy imposes upon new enlistees an unlawful minimum period of service requirement – from 180 days to 1 year – before they are eligible to receive an N-426.
60. With respect to Selected Reservists who enlisted prior to October 13, 2017, but who had not yet received N-426s as of October 13, including Plaintiffs, the new policy – in “Section II” – specifies 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 administrative 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.
61. The New DoD N-426 Policy is unlawful in multiple respects. For example, as applicable to Plaintiffs and the class, it appears to require the same type of “military training and required service” requirements as post-October 13 enlistees (i.e., including active duty), even though it does not state so expressly. Other unlawful pre-conditions to naturalization include, among other things, a minimum period of service requirement, a definition and determination of “honorable” service that does not comport with applicable laws and regulations, and service
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“capacity,” residency, physical presence, and background check requirements that are contrary to law.
62. None of these and other N-426 eligibility conditions imposed by the New DoD N-426 Policy is permissible under law. DoD has a mandatory, non-discretionary duty to complete N-426 Forms for those soldiers (including Plaintiffs and the class) eligible to apply for naturalization under the statute, and DoD’s refusal to perform this duty lacks rationality, coherence, and consistency. DoD has no authority or discretion to impose and mandate compliance with additional conditions in order for these soldiers to obtain their honorable service certifications.
63. With respect to the “active-duty service” requirement in the New DoD N-426 Policy, DoD’s position is directly at odds with DHS’s interpretation of 8 U.S.C. § 1440, including DHS’s final rulemaking published in the Federal Register. And, DoD’s position defies and disregards the instructions on the Form N-426 that DHS created for the express purpose of compliance with 8 U.S.C. § 1440. In fact, as Government counsel conceded to this Court on August 23, 2017, “the Department of Defense and USCIS disagree[] as to an interpretation of [8 U.S.C. § 1440].” And defendants in the Nio Action previously acknowledged this to the Court, by admitting that “it is the province of USCIS to interpret the Immigration and Nationality Act which is what is Title 8 and which leads to CFRs under Title 8.” In other words, DHS – the agency with exclusive authority to administer the naturalization laws and to adjudicate naturalization applications – does not agree with Defendants’ action requiring service in an active-duty status as a prerequisite to any Form N-426 certification.
64. DoD’s policy 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
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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).
65. In short, DoD is engaging in a power play. Contrary to law, DoD is interfering with and manipulating the naturalization process for Selected Reservists – a process over which it has no more than a ministerial duty to issue N-426 certifications. For its part, DHS either lacks the wherewithal or the power to block DoD’s gambit. In the meantime, the lives and fates of MAVNI soldiers, including Plaintiffs, hang in the balance.
Plaintiffs’ Honorable Service and N-426 Requests 66. Plaintiff Mahlon Kirwa enlisted in the Selected Reserve through the MAVNI program in December 2015. Mr. Kirwa took his service oath on December 7, 2015. Mr. Kirwa began drilling with the 414th Chemical Company in Orangeburg, South Carolina as a U.S. Army Private First Class (E-2) in March 2016 and has since participated in multiple Selected Reserve drill periods with his unit. 67. In July 2017, Mr. Kirwa requested his commander to sign his Form N-426 so that he could submit his N-400 Application for Naturalization. However, Mr. Kirwa’s commander declined to sign the Form N-426, telling Mr. Kirwa that his service to date did not qualify for
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issuance of a Form N-426. The excuse that Mr. Kirwa’s commander gave for denying his N-426 was that Mr. Kirwa had not attended at least 48 drill periods.
68. Following the PI Order, Mr. Kirwa immediately submitted an N-426 to DoD. More than two business days afterwards, and after multiple attempts by Mr. Kirwa to secure compliance, DoD provided Mr. Kirwa with an electronic version of a signed and completed N-426 certifying his honorable service in the Selected Reserve.
69. Plaintiff Santhosh Meenhallimath enlisted in the Selected Reserve through the MAVNI program in February 2016. Mr. Meenhallimath took his service oath on February 4, 2016. Mr. Meenhallimath began drilling with the 353rd Transportation Company in Buffalo, Minnesota as a Specialist (E-4) in January 2017 and has since participated in multiple Selected Reserve drill periods with his unit.
70. In April 2017, Mr. Meenhallimath requested an official in his unit to sign his Form N-426 so that he could submit his N-400 Application for Naturalization. However, Mr. Meenhallimath’s unit administrator refused to sign the Form N-426 stating that “I have found out that we cannot certify [a Form N-426] unless you are on Active Duty or have a DD214 (you will receive that after BCT/AIT).” No one from Mr. Meenhallimath’s unit signed his N-426.
71. Following the PI Order, Mr. Meenhallimath immediately submitted an N-426 to DoD. More than two business days afterwards, and after multiple attempts by Mr. Meenhallimath to secure compliance, DoD provided Mr. Meenhallimath with an electronic version of a signed and completed N-426 certifying his honorable service in the Selected Reserve.
72. Plaintiff Ashok Viswanathan enlisted in the Selected Reserve through the MAVNI program in June 2016. Mr. Viswanathan took his service oath on June 24, 2016. Mr.
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Viswanathan began serving with the 353rd Transportation Company in Buffalo, Minnesota as a Specialist (E-4) in August 2016 and has since participated in multiple Selected Reserve drill periods with his unit.
73. In March 2017, Mr. Viswanathan filed his N-400 Application for Naturalization, attaching a Form N-426. On March 31, 2017, USCIS responded to Mr. Viswanathan’s submission with a Request for Evidence (“RFE”) stating that USCIS was unable to fully process his application. The RFE instructed him to “Take the N-426 to your personnel office, administrative unit, command, or human resources department where your service record can be verified and certified” and noted that “No Recruiter can Certify” the Form N-426. The RFE instructed Mr. Viswanathan to resubmit the Form N-426 within 30 days. In April 2017, Mr. Viswanathan contacted his unit administrator regarding his Form N-426 certifying his honorable service. Mr. Viswanathan’s unit administrator responded with the following: “I have found out that we cannot certify [a Form N-426] unless you are on Active Duty or have a DD214 (you will receive that after BCT/AIT).” No one from Mr. Viswanathan’s unit signed his N-426.
74. Following the PI Order, Mr. Viswanathan immediately submitted an N-426 to DoD. More than two business days afterwards, and after multiple attempts by Mr. Viswanathan to secure compliance, DoD provided Mr. Viswanathan with an electronic version of a signed and completed N-426 certifying his honorable service in the Selected Reserve.
75. Following the PI Order, Defendants issued new policies in response to the PI Order. Those new policies imposed additional requirements on eligible service members who were seeking N-426s following and pursuant to their rights under the PI Order. Those new policies did not comply with the PI Order. Defendants also failed to take reasonable and necessary steps to communicate the PI Order to members of the class, despite their “best efforts”
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obligations imposed by the PI Order and their independent statutory obligations, under 10 U.S.C. § 10210 to communicate such information to members of the Selected Reserve.
76. In the absence of the PI Order requiring DoD to do so, Defendants would not have issued N-426s to any of the Plaintiffs without first subjecting them to unlawful requirements, such as service in an active-duty status, completion of background checks, completion of military suitability determinations, and the like.
77. As of the date of this Amended Complaint, more than one week after the PI Order, multiple members of the provisional class who submitted N-426s to DoD for certification more than two business days earlier have not received completed certifications from DoD in any form.
Defendants’ Unlawful Conduct Has Caused, and Will Continue to Cause, Substantial and Irreparable Harm to Plaintiffs
78. Plaintiffs are suffering and will continue to suffer irreparable harm due to Defendants’ actions.
79. The right to acquire United States citizenship is a precious one. The benefits of U.S. citizenship are priceless, and the consequences of a lost or unlawfully delayed opportunity to acquire citizenship are dire. Depriving U.S. service members of their opportunity to become naturalized citizens – an opportunity earned through their honorable military service and guaranteed by statute – is an ongoing and mounting harm for which there is no recompense.
80. Defendants’ conduct is unlawfully depriving Plaintiffs and class members of the opportunity to realize fundamental rights and benefits that come along with citizenship, including the right to vote, protection from deportation/removal proceedings, work or school authorization and benefits, the right to travel outside of this country and return to the United States, the ability to meet personal, family and professional obligations, and peace of mind
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regarding their legal status to remain in the United States. This deprivation of citizenship opportunities continues with each passing day. And every day of lost citizenship rights and benefits is a day that these Plaintiffs can never recover or be recompensed for losing.
81. Without the ability to obtain a job, a driver’s license, a U.S. passport (which has prevented certain Plaintiffs from visiting loved ones and attending important family events), additional educational and professional opportunities, and the myriad other privileges that naturalization would afford, these soldiers are suffering. DoD’s unlawful refusal to certify Plaintiffs’ honorable service has led to financial and other distress, hardship, and uncertainty. Simply put, Plaintiffs cannot plan for the future.
82. Further, Plaintiffs’ lawful immigration status has been jeopardized by Defendants’ conduct. Enlistment in the military shows “immigrant intent” that jeopardizes any nonimmigrant visa status. For example, DHS officials have stated that, in the agency’s view, MAVNI soldiers who entered the United States on F or M non-immigrant visas are subject to removal because of their enlistment in the U.S. Army. According to the agency, these U.S. Army soldiers remain “lawfully presen[t]” in the United States only “at the discretion of the agency” and only “for so long as DHS continues to forbear” removal proceeding against them. DHS officials also have stated to this Court – and specifically with reference to MAVNIs – that “any alien without legal immigration status in the United States is subject to removal and may be placed in removal proceedings for failing to maintain status or for any other violation of the immigration laws which would make the alien removable.”
83. And, DoD has told these soldiers the following: “If you are discharged from the Army before you become a citizen, you may no longer have a valid immigration status. For
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example, if you are on an H1B worker visa prior to joining the Army and are later discharged without citizenship, you will have no legal status.”
84. Furthermore, current DHS guidance relating to F and M non-immigrant visas provides that if a MAVNI Selected Reserve soldier receives “compensation during Reserve duty, this marks the beginning of employment and the [Designated School Officials] must terminate the student [Student and Exchange Visitor Information System (“SEVIS”)] record.” While DHS officials have represented that, at least for now, the agency “will not enforce the requirement that designated school officials terminate the [SEVIS] record of a student solely because he or she accepts compensation for participating in Reserve duty,” the “requirement” still exists and this representation affords no comfort whatsoever to MAVNI soldiers whose enrollment already has been terminated or will be terminated by school officials in compliance with this DHS requirement.
85. By withholding certification of honorable service for Plaintiffs and similarlysituated soldiers, DoD is not even allowing these soldiers the modicum of “lawful presence” protection that may accompany a pending naturalization application.
86. Further, the new uncertainty associated with their military careers, and concomitantly their legal status, is causing anguish and is particularly unconscionable given that each Plaintiff is serving during a period of armed conflict and has sworn an oath to protect and defend the United States.
87. Finally, any loss of the opportunity to become U.S. citizens on the part of Plaintiffs and the members of the class, after already having volunteered to serve in the United States military, could subject these individuals to extreme peril. These individuals would be subject to deportation to countries of origin, where, for some, they could face detention,
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interrogation, prosecution, and/or imprisonment because of their decision to enlist in the U.S. Army and swear their allegiance to the United States and the Constitution.
CLASS ACTION ALLEGATIONS 88. The named Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of themselves and all other persons similarly situated. The named Plaintiffs seek to represent the below-described class: 89. Class: All individuals who: (i) have enlisted in the U.S. military through the Military Accessions Vital to the National Interest (“MAVNI”) prior to October 13, 2017; (ii) have served in the Selected Reserve of the Ready Reserve (“Selected Reserve”); and (iii) have not received a completed Form N-426 from the military (as of October 25, 2017). 90. The members of Plaintiffs’ class warrant class action treatment because they fulfill the certifying requirements under Rule 23(a) of the Federal Rules of Civil Procedure. While the exact number of class members is unknown to Plaintiffs at this time, recent DoD memoranda – including a May 19, 2017 “Action Memo” signed by DoD Under Secretaries, a July 27, 2017 memorandum from the Acting Secretary of the Army, and sworn statements by DoD representatives in the Nio Action – indicate that the proposed class would consist of approximately 2,000 members. 91. The proposed class meets the numerosity requirement of Rule 23(a)(1) because the members of the class are so numerous that joinder of all members is impractical. 92. The proposed class meets the commonality requirement of Rule 23(a)(2) because there are questions of law and fact common to the class, including, for example, whether DoD has a mandatory duty to complete N-426 Forms and whether DoD’s “active-duty service”
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requirement and numerous other pre-conditions for certification of a Form N-426 are contrary to law.
93. The proposed class meets the typicality requirement of Rule 23(a)(3) because the claims of the named Plaintiffs are typical of the claims of each of the class members. Class members and Plaintiffs similarly are affected by Defendants’ wrongful conduct in violation of federal law, including 8 U.S.C. § 1440, that is described herein.
94. The named Plaintiffs will fairly and adequately protect the interests of the class as required by Rule 23(a)(4) because their interests are identical to those of the other members of the class. Fair and adequate protection of the interests of the class will be further ensured because the named Plaintiffs are represented by competent legal counsel who are experienced in federal litigation, are undertaking representation on a pro bono basis, and have adequate resources and commitment to represent the class as a whole. As of the filing of this Amended Complaint, Plaintiffs already have demonstrated their ability to serve as class representatives by filing a motion for preliminary injunction on behalf of themselves and the class – which the Court granted – and having the Court, via an October 27, 2017 Order, provisionally certify the class and provisionally certify Plaintiffs as class representatives. Plaintiffs are committed to continuing to represent the class until their claims for permanent injunctive and other relief are fully and finally adjudicated and until all eligible class members who seek to obtain completed N-426s allowing them to apply for naturalization receive them from DoD with certainty.
95. Furthermore, as contemplated by Rule 23(b)(1), if the individual members of the class were to bring separate suits to address Defendants’ policies, practices, and actions and inactions, Defendants may address the cases of the named Plaintiffs but ignore the concerns of the remaining class members, thereby exacerbating Defendants’ violations of the law. Resolving
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this matter as a class action also would serve the Court’s interest in judicial economy by avoiding overburdening the courts with individual lawsuits brought by each of the many enlistees recruited through the MAVNI program whose Form N-426 honorable service certifications are being withheld subject to DoD’s unlawful active-duty service requirement.
96. Alternatively, this case qualifies for class action treatment under Rule 23(b)(2) because Plaintiffs seek final injunctive and declaratory relief. This relief is appropriate for the whole class as Defendants’ actions and/or refusals to act apply generally to the class as a whole.
CLAIMS FOR RELIEF Count I: Declaratory Judgment 97. Plaintiffs re-allege paragraphs one through ninety-six as if fully set forth herein. 98. 28 U.S.C. § 2201 authorizes a court, “[i]n a case of actual controversy within its jurisdiction . . . upon the filing of an appropriate pleading” to “declare the rights and other legal relations of any interested party seeking such declaration . . . .” 99. 8 U.S.C. § 1440 establishes a clear, limited, and purely ministerial role for DoD in the naturalization process. DoD’s role is to verify, by way of Form N-426, whether a soldier is or is not serving honorably based on that soldier’s existing service record. 100. 8 U.S.C. § 1440, the implementing regulations promulgated thereunder, and the final rules published in the Federal Register further provide that soldiers with honorable service as a member of the Selected Reserve of the Ready Reserve are eligible for naturalization under Section 1440. Service in an active-duty status is not required. Contrary to the express language of the statute and regulations, DoD has adopted N-426 policies, including the August DoD N-426 Policy and the New DoD N-426 Policy, that purport to preclude Plaintiffs and the class
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from obtaining N-426 honorable service certifications until Plaintiffs satisfy certain DoD requirements that have no legal justification.
101. Accordingly, Plaintiffs seek declaratory judgment that: (i) DoD may not withhold or unreasonably delay completion and execution of Form N-426 service certifications for Selected Reserve MAVNI soldiers; (ii) For purposes of 8 U.S.C. § 1440, one day of Selected Reserve service is sufficient; (iii) DoD may not refuse to certify honorable service for Selected Reserve MAVNI soldiers on the basis that any other requirement – such as service in an active-duty status, completion of background checks, a military suitability or other military determination, or any other requirement set forth in the New DoD N-426 Policy – is necessary for naturalization under 8 U.S.C. § 1440; and (iv) Unless the soldier’s existing service record reflects conduct that disqualifies that service from being designated honorable – under the recognized standard applicable to all soldiers regardless of immigration status, DoD may not withhold an honorable service certification for any Selected Reserve MAVNI soldier seeking naturalization. Count II: Injunctive Relief
102. Plaintiffs re-allege paragraphs one through one hundred one as if fully set forth herein.
103. Through their N-426 policies, Defendants have imposed unlawful conditions on the issuance of N-426s to honorably serving members of the Selected Reserve who enlisted prior
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to October 13, 2017 and who are seeking to apply for naturalization. Defendants’ actions interfere with and prevent the submission, processing, and adjudication of Plaintiffs’ naturalization applications under 8 U.S.C. § 1440.
104. Defendants’ unlawful and improper actions have caused irreparable harm, for which they have no adequate remedy at law. Under the facts and circumstances of this case, the balance of the equities clearly favors Plaintiffs, and injunctive relief is in the public interest.
105. On October 27, 2017, in an amended order (Dkt. 32), the Court entered an order granting Plaintiffs’ motion for preliminary injunction:
 “preliminarily enjoin[ing] [Defendants] from refusing to sign and issue Form N-426s to members of the Selected Reserve pursuant to Section II of DOD’s October 13, 2017 Guidance [New DoD N-426 Policy];”
 “preliminarily enjoin[ing] [Defendants] from refusing to certify MAVNI enlistees who have served for one day or more in the Selected Reserve as having honorable service, except as related to the conduct of an individual plaintiff or class member as reflected in the soldier’s service record and based on sufficient grounds generally applicable to all members of the military;” and
 “[o]rder[ing] that, after members of the provisionally-certified class submit or resubmit N-426s to their military officer ranked O6 or higher, defendants should use their best efforts to certify or deny Form N-426s, as was done for the Nio plaintiffs, within two business days of receipt of Form N-426.”
106. Plaintiffs seek any other preliminary relief necessary, such as enjoining Defendants from taking any retaliatory actions against Plaintiffs or members of the class.
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107. Plaintiffs further seek to have the already-issued preliminary injunction converted to a final and permanent injunction and, in addition, seek to permanently enjoin Defendants from retaliating against Plaintiffs or class members, including by discharging or separating them from the military pending issuance of their N-426 Forms and processing of their naturalization applications.
Count III: Relief Pursuant to the Administrative Procedure Act 108. Plaintiffs re-allege paragraphs one through one hundred seven as if fully set forth herein. 109. 5 U.S.C. § 706(1) authorizes a court to “compel agency action unlawfully withheld or unreasonably delayed.” Reviewable agency action includes an agency’s failure to act. Defendants unlawfully have withheld and/or unreasonably delayed the issuance of Form N426s and honorable service certifications to Plaintiffs and the class contrary to the plain language of applicable law, including 8 U.S.C. § 1440. 110. Plaintiffs have a clear right to receive honorable service certifications for naturalization purposes pursuant to 8 U.S.C. § 1440 based on their current service and based on the current record. Defendants have interfered with that right and the only adequate remedy is to order Defendants to resume certification of Plaintiffs’ honorable service solely in accordance with existing criteria, law, and regulations. 111. Accordingly, Plaintiffs seek an order from the Court pursuant to 5 U.S.C. § 706(1) compelling Defendants to comply with their statutory obligations pursuant to 8 U.S.C. § 1440 to issue Form N-426s certifying the honorable service of Plaintiffs and members of the class.
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112. 5 U.S.C. § 706(2) authorizes a court to hold unlawful and set aside final agency action found to be arbitrary, capricious, an abuse of discretion (e.g., irrational), or otherwise not in accordance with law, or in excess of statutory jurisdiction or authority.
113. Defendants’ N-426 policies impose unlawful preconditions to DoD’s issuance of N-426 honorable service certifications to Plaintiffs and the class. The conditions imposed by the N-426 policies are contrary to the plain language of the statute, implementing regulations, and final rulemaking and exceed DoD’s statutory authority and represent a departure from and change in the legal landscape vis-à-vis Defendants’ prior N-426 policies and practices. As such, Defendants’ policies are unlawful on their face and otherwise are being unlawfully applied retroactively to Plaintiffs and the class.
114. Accordingly, Plaintiffs seek an order: (i) holding unlawful and setting aside Defendants’ policies; (ii) declaring such policies unlawful; (iii) enjoining Defendants from withholding issuance of N-426s and from refusing to certify honorable service except as related to the conduct of an individual soldier as reflected in that soldier’s service record and based on sufficient grounds generally applicable to all members of the military; and (iv) enjoining Defendants from applying the policy to Plaintiffs and the class.
Count IV: Mandamus 115. Plaintiffs re-allege paragraphs one through one hundred fourteen as if fully set forth herein. 116. 28 U.S.C. § 1361 authorizes a court to “compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff” if the plaintiff can demonstrate that: (1) the plaintiff seeking mandamus has a clear right to the relief requested;
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(2) the defendant has a clear duty to perform the act in question; and (3) no other adequate remedy is available.
117. By virtue of their service in the Selected Reserve and their stated intention to apply for naturalization pursuant to 8 U.S.C. § 1440, Plaintiffs have the right and need to obtain from Defendants a certification of their honorable service, via Form N-426.
118. Pursuant to 8 U.S.C. § 1440, Defendants have a mandatory duty and obligation to perform the ministerial function of verifying Plaintiffs’ service status from their existing service records and certifying – via Form N-426 – Plaintiffs’ honorable service.
119. Defendants have refused to perform this limited task and have implemented policies thwarting and/or preventing the issuance of N-426 certification to Plaintiffs and the class.
120. Accordingly, Plaintiffs seek issuance of a writ of mandamus compelling Defendants to comply with their ministerial obligations pursuant to 8 U.S.C. § 1440 to certify the honorable service of Plaintiffs and the class.
Count V: Constitutional Violations 121. Plaintiffs re-allege paragraphs one through one hundred twenty as if fully set forth herein. 122. Under the “uniform Rule of Naturalization” clause of the Constitution, Congress is vested with the sole legal authority to establish eligibility criteria for naturalization. 123. By enacting 8 U.S.C. § 1440, Congress has specified the naturalization eligibility conditions applicable to Selected Reservists such as Plaintiffs and the class. Congress did not authorize DoD to establish or impose naturalization conditions or to enforce or adjudicate naturalization applications.
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124. Congress assigned to DHS the exclusive responsibility for determining a service member’s eligibility for naturalization under 8 U.S.C. § 1440.
125. Congress did not assign to DoD any role in naturalizations other than the ministerial task of certifying whether soldiers have served honorably.
126. Pursuant to 8 U.S.C. § 1440, Plaintiffs and the class – as Selected Reservists serving honorably during wartime – have a clear statutory entitlement to apply for naturalization.
127. Through their N-426 policies, Defendants are interfering with and otherwise depriving Plaintiffs and the class of their right to apply for naturalization. Defendants’ N-426 policies constitute additional, non-statutory, substantive pre-conditions to naturalization that are contrary to law. As such, they violate the Constitution with resulting harm to Plaintiffs and the class.
128. Plaintiffs and the class assert that they meet all of the lawful eligibility requirements to become naturalized citizens. As such, applying lawful eligibility criteria, their applications must be granted. There is no discretion to deny naturalization to a person who satisfies the criteria established by Congress.
129. Defendants’ N-426 policies, as described above, impose unauthorized, unlawful, and/or arbitrary conditions on Plaintiffs’ ability to apply for naturalization. Defendants’ conduct therefore violates Plaintiffs’ (and the class’s) right to due process under the Fifth Amendment to the U.S. Constitution because these soldiers cannot be denied immigration benefits – namely naturalization – for which they are eligible and seeking.
130. Plaintiffs seek appropriate equitable relief for these violations.
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PRAYER FOR RELIEF Wherefore, Plaintiffs, on behalf of themselves and the class, respectfully request that this Court: 1. Assume jurisdiction over this action; 2. Enter the declaratory judgment requested in Count I of this Amended Complaint; 3. Maintain and grant the injunctive relief requested in Count II of this Amended
Complaint; 4. Grant the APA relief requested in Count III of this Amended Complaint; 5. Issue the mandamus requested in Count IV of this Amended Complaint; 6. Grant the relief requested pursuant to Count V of this Amended Complaint. 7. Award Plaintiffs and the class reasonable costs and attorneys’ fees, including
under the Equal Access to Justice Act; and 8. Award such further relief as the Court deems just or appropriate.
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Respectfully submitted this 3rd day of November 2017.
/s/ Joseph J. LoBue Joseph J. LoBue (D.C. Bar No. 484097) Douglas W. Baruch (D.C. Bar No. 414354) Jennifer M. Wollenberg (D.C. Bar No. 494895) Neaha P. Raol (D.C. Bar No. 1005816) Webster R. M. Beary (D.C. Bar No. 1041653) Shaun A. Gates (D.C. Bar No. 1034196) Katherine L. St. Romain (D.C. Bar No. 1035008) Fried, Frank, Harris, Shriver & Jacobson LLP 801 17th Street, NW Washington, D.C. 20006 Telephone: (202) 639-7000 Facsimile: (202) 639-7003 Email: joseph.lobue@friedfrank.com Email: douglas.baruch@friedfrank.com Email: jennifer.wollenberg@friedfrank.com Counsel for Plaintiffs
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 Case 1:17-cv-01793-ESH-GMH Document 37 Filed 11/16/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAHLON KIRWA, et al., Plaintiffs,
v. UNITED STATES DEPARTMENT OF DEFENSE, et al.,
Defendants.

Civil Action No. 17-1793(ESH)

ORDER It is hereby ORDERED that defendants shall respond to plaintiffs’ motion, ECF No. 35, to enforce the Court’s Amended Preliminary Injunction Order, ECF No. 32, on or before Nov 29, 2017, at 5:00 PM; it is further ORDERED that plaintiffs have until December 4, 2017, at 5:00 PM, to file any reply; it is further ORDERED that defendants shall inform the Court of its efforts to comply with the Court’s Amended Preliminary Injunction Order including, but not limited to, the following: (1) all instructions for effectuating the Court’s Order issued to command and reserve personnel, and documentation of all such communication; and (2) all efforts to communicate and explain the Court’s Order issued to class members, and documentation of all such communication. ORDERED that on or before Nov 29, 2017, at 5:00 PM, plaintiffs and defendants will propose a joint communication to be distributed to the class members explaining their rights

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under the Court’s Amended Preliminary Injunction Order. The communication shall be sent by defendants, but if defendants would rather the plaintiffs send the communication, defendants must provide the names, addresses, and contact information for all class members who have not received their N-426; it is further
ORDERED that on or before Nov 29, 2017, at 5:00 PM, defendants shall provide the following information:
(1) how many class members have applied for an N-426; (2) when those class members applied for an N-426; (3) how many class members have approved N-426s; (4) when those class members received their N-426 or confirmation that it had been uploaded into the soldier’s Army Military Human Resource Record; and (5) a list containing the names of class members who submitted an N-426, the dates they submitted their N-426s, and the date they received their N-426 or confirmation of approval. ORDERED that on or before Nov 29, 2017, at 5:00 PM, defendants shall provide the Court with the responses they received to its October 27, 2017 Memorandum for Secretaries of the Military Departments, ECF No. 35-3, regarding the status of the military departments’ compliance with the Court’s Order.

SO ORDERED. Date: November 16, 2017

/s/ Ellen Segal Huvelle ELLEN SEGAL HUVELLE United States District Judge

 
 Case 1:17-cv-01793-ESH Document 47 Filed 12/01/17 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAHLON KIRWA, et al., Plaintiffs,
v. UNITED STATES DEPARTMENT OF DEFENSE, et al.,
Defendants.

Civil Action No. 17-1793(ESH)

MEMORANDUM OPINION Before the Court is plaintiffs’ motion for class certification. (Pls.’ Mot. For Class Certification and Appointment of Class Counsel, Sept. 19, 2017, ECF No. 12, (“Class Mot.”); Supp. Mem. in Support of Pls.’ Class Mot., Nov. 3, 2017, ECF No. 34, (“Supp. Class Mot.”).) The Court thoroughly considered the present class certification issues when it provisionally certified the class in Kirwa, No. 17-cv-1793, 2017 WL 4862763 (D.D.C. Oct. 25, 2017), and when it certified the class in the related Nio case, Nio v. United States Dep’t of Homeland Sec., No. 17-cv-998, 2017 WL 4876276 (D.D.C. Oct. 27, 2017). In fact, “[d]efendants have decided not to oppose Plaintiffs’ motion in this case because the Court granted a similar motion for class certification in Nio . . . . The Government reserves its objections to class certification that it set forth in the Nio litigation.” (Notice of Defs.’ Non-Opp. to Pls.’ Mot. for Class Cert., Nov. 28, 2017, ECF No. 40, at 1.) The only remaining dispute between the parties regarding class certification is whether the class should be defined as those MAVNI enlistees who have not received a completed Form

Case 1:17-cv-01793-ESH Document 47 Filed 12/01/17 Page 2 of 2
N-426 as October 25, 2017, or whether the class should be defined as those MAVNI enlistees who have not received a completed Form N-426 as of the filing of this opinion. Consistent with the definition the Court used to provisionally certify the class, the Court will define the class as all persons who (1) have enlisted in the U.S. military through the Military Accessions Vital to the National Interest (“MAVNI”) program prior to October 13, 2017, (2) who have served in the Selected Reserve of the Ready Reserve (“Selected Reserve”), and (3) have not received a completed and duly authenticated Form N-426.
The formal joint communication to the class members, which defendants have agreed to distribute, shall not be disseminated until the Court’s resolution of the dispute between the parties regarding language about the class members’ rights under the preliminary injunction. (See Notice of Filing of Proposed Joint Communication to Class Members, Nov. 29, 2017, ECF No. 43.) Having satisfied itself that plaintiffs have met the requirements of Federal Rule of Civil Procedure 23, the Court will certify a class as further detailed in the Court’s accompanying Order, ECF No. 48.
/s/ Ellen Segal Huvelle ELLEN SEGAL HUVELLE United States District Judge Date: December 1, 2017
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAHLON KIRWA, et al., Plaintiffs,
v. UNITED STATES DEPARTMENT OF DEFENSE, et al.,
Defendants.

Civil Action No. 17-1793(ESH)

MEMORANDUM OPINION 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.
BACKGROUND
The relevant background is set out in detail in the Court’s prior opinions certifying the
class2 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.
1 Although the three named plaintiffs have received Form N-426s as a result of this Court’s preliminary injunction, the Court has granted plaintiffs’ counsel leave to substitute new named plaintiffs who have yet to receive a completed Form N-426. (Order, Dec. 1, 2017, ECF No. 48.) 2 The class consists of all persons who (1) have enlisted in the U.S. military through the MAVNI program prior to October 13, 2017, (2) have served in the Selected Reserve, and (3) have not received a completed and duly authenticated Form N-426. (Order, Dec. 1, 2017, ECF No. 48.) On December 14, 2017, the Court ordered defendants to disseminate notice to the class of their rights under the preliminary injunction. (ECF No. 54.)
3 The issues in this case overlap with a related case before this Court, Nio v. United States Department of Homeland Security, No. 17-cv-0998, 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.
2

I. FACTUAL BACKGROUND 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
3

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 administrative 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).
4

(Id. ¶ 64.) II. PROCEDURAL HISTORY
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
4 Count I is a claim under the Declaratory Judgment Act, 28 U.S.C. § 2201, which is not a standalone cause of action. Malek v. Flagstar Bank, 70 F. Supp. 3d 23, 28 (D.D.C. 2014). Count II is a claim for preliminary and permanent injunctive relief, but it does not include a distinct cause of action.
5

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.
ANALYSIS I. LEGAL STANDARD
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
5 The Court may also consider “documents attached to or incorporated by reference in the complaint and documents attached to a motion to dismiss for which no party contests authenticity.” Demissie v. Starbucks Corp. Office & Headquarters, 19 F. Supp. 3d 321, 324 (D.D.C. 2014); see also Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004). 6 As detailed infra Part IV.A and Part VII, summary judgment is not appropriate based on the administrative record before the Court.
6

II. REVIEWABILITY OF DEFENDANTS’ N-426 POLICY 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
7

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. 2:17CV-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
8

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 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).
As explained in the Court’s preliminary injunction opinion, defendants have a duty to certify Form N-426s if the enlistee’s service would qualify as honorable “based on an enlistee’s service record as it existed on the day he submitted the N–426.” Kirwa v, 2017 WL 4862763, at *11; see also id. at *15. In response, defendants argue that because they have the authority to determine present military suitability, they can redefine past honorable service to require a finding of present military suitability. The Army undoubtedly has the authority to judge an enlistee’s present suitability for service. Army Reg. 135-178 § 1-1; Army Reg. 635-200 § 1-1; DOD Instruction 1332.14 § 3. DOD, however, does not have the right to rewrite 8 U.S.C. § 1440, an immigration statute that references past honorable service. 8 U.S.C. § 1440(a) (“Any person who . . . has served honorably. . . .”) (emphasis added); see Meina Xie v. Kerry, 780 F.3d 405, 408 (D.C. Cir. 2015).8 Under “normal rule[s] of statutory construction . . . identical words
7 Plaintiffs are not asserting an unreasonable-delay claim. (Pls.’ Opp. to MTD, Dec. 1, 2017, ECF No. 49 (“Opp.”) at 21.) 8 Although defendants briefly mention Chevron deference (MTD at 11), Chevron deference would not be applicable given the lack of evidence that Congress delegated authority to DOD to interpret immigration statutes and the informal manner in which DOD reached its October 13th Guidance. See United States v. Mead Corp., 533 U.S. 218, 227 (2001); DeNaples v. Office of Comptroller of Currency, 706 F.3d 481, 487 (D.C. Cir. 2013).
9

used in different parts of the same act are intended to have the same meaning.” Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995). Every characterization of honorable service or separation under honorable conditions in 8 U.S.C. § 1440 is defined in terms of past service. See 8 U.S.C. § 1440(a). Therefore, as plaintiffs allege, defendants are impermissibly conflating a present suitability determination with a determination of past honorable service in their interpretation of 8 U.S.C. § 1440—a naturalization statute that, on its face, does not require certification of present military suitability or active honorable service.9 IV. APA § 706(2)
Pursuant to 5 U.S.C. § 706(2)(A), the Court must decide if 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).10
A. Arbitrary and Capricious DOD admits that prior to its October 13th Guidance, it had no formal department-wide written guidance defining “honorable service” for purposes of certifying N-426s. (Tr. of PI Hr’g at 57, Oct. 18, 2017, ECF No. 27 (“10/18/2017 Tr.”) at 16–17, 24, 45, 66.) Still, as plaintiffs have sufficiently pled (Am. Compl. ¶¶ 27, 46, 64, 89), and as the record before this Court corroborates, see Kirwa, 2017 WL 4862763, at *12–13, prior to October 13, 2017, branches of the military under DOD’s control were proceeding under a non-formalized policy where Form N-426s were certified based on MAVNI enlistees’ past qualifying service. The October 13th
9 This is also enough for plaintiffs’ contrary-to-law claim, 5 U.S.C. § 706(2), to survive a motion to dismiss. 10 As defendants do for multiple claims, they argue that plaintiffs’ amended complaint fails to even plead an arbitrary-and-capricious claim. (MTD at n.12; Defs.’ Reply in Supp. of MTD, Dec. 8, 2017, ECF No. 50, at 14 n.7.) But these arguments are clearly refuted by the allegations in plaintiffs’ complaint. (See, e.g., Am. Compl. ¶¶ 112–13.)
10

Guidance thus represents a dramatic departure from past practice. “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 v. Perdue, 873 F.3d 914, 923 (D.C. Cir. 2017). 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.
At an October 18th hearing before the Court, defendants made the curious argument that its October 13th Guidance was not subject to judicial review and required no explanation because no formal policy existed before October 13, 2017. (10/18/2017 Tr. at 41, 45.) Defendants reprise this position here.
But for purposes of arbitrary-and-capricious review, the APA “makes no distinction . . . between initial agency action and subsequent agency action undoing or revising that action.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); see also Loving v. IRS, 742 F.3d 1013, 1021 (D.C. Cir. 2014) (an agency’s “interpretation [of a statute], whether old or new, must be consistent with the statute”); Handley v. Chapman, 587 F.3d 273, 282 (5th Cir. 2009) (explaining that courts review a policy change under the same standards as a “policy drafted on a blank slate”). Whether DOD is taking an initial agency action or changing a longstanding policy or practice, it still must provide a reasoned explanation for its action. Fox Television Stations,
11

Inc., 556 U.S. at 515. In an attempt to explain the change, defendants assert that the October 13 Policy reflects DoD’s desire to establish, for the first time, a clear and consistent process for N-426 certifications following a number of years in which the military was applying inconsistent standards for such determinations. Third Miller Decl. ¶ 11. The policy is consistent with DoD’s longstanding intent; DoD has now simply formalized it. Id. ¶ 5.
(MTD at 26.) For this argument, defendants cite only the Third Miller declaration (Nov. 17, 2017, ECF No. 39-5), which was not part of the administrative record, but was prepared in November 2017 to provide an explanation for defendants’ October 13th Guidance.
This explanation does not satisfy the agency’s burden under 5 U.S.C. § 706(2). See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42– 43 (1983); see also League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, No. 3:12-CV-02271, 2014 WL 6977611, at *25 (D. Or. Dec. 9, 2014) (“The Court cannot determine that the Forest Service’s conclusion was ‘reasonable’ because the record simply does not provide a rationale behind the decision. And Defendants’ briefing, including Mr. Sciarrino’s declaration, cannot explain the Forest Service’s methodology in the absence of supporting materials in the record.”).
Similarly, defendants’ reliance on the third Miller declaration demonstrates why granting defendants’ summary judgment motion would be inappropriate. Challenges to final agency action are normally resolved at summary judgment based on a review “limited to the administrative record.” Bluewater Network v. Salazar, 721 F. Supp. 2d 7, 15 (D.D.C. 2010). “When the record is inadequate, a court may ‘obtain from the agency, either through affidavits or testimony, such additional explanations of the reasons for the agency decision as may prove necessary.’” Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 285 (D.C. Cir. 1981) (citation
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omitted). However, “[t]he new materials should be merely explanatory of the original record and should contain no new rationalizations.” Id.
The Miller declaration is hardly “merely explanatory.” This declaration purports to offer new justifications for agency action—justifications that find no support in the administrative record complied by defendants or in the record that has been amassed during the extensive preliminary injunction proceedings in this action and in Nio. Cf. Olivares v. Transp. Sec. Admin., 819 F.3d 454, 464 (D.C. Cir 2016), cert. denied, 137 S. Ct. 282 (2016) (“The critical point is that the Vara Declaration contains ‘no new rationalizations’; it is ‘merely explanatory of the original record,’ and thus admissible for our consideration.”) (citation omitted).
The APA requires an agency to explain the rationale for its decision in order to demonstrate that the agency reached its decision in a well-reasoned manner after considering appropriate factors. See Motor Vehicle Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43 (“[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’”); Judulang v. Holder, 565 U.S. 42, 53 (2011) (noting that arbitrary-and-capricious review “involves examining the reasons for agency decisions—or, as the case may be, the absence of such reasons”). APA review may be limited, but it involves more than a court rubberstamping action based on bare declarations from the agency amounting to “trust us, we had good national security reasons for what we did.”11 See Wagafe, 2017 WL 5989162, at *1; see also Patterson v. Comm’r of Soc. Sec. Admin.,
11 Relatedly, much of the Third Miller Declaration is either belied by, or unsupported by, the documents that defendants have brought to the Court’s attention during the preliminary injunction proceedings. For example, the declaration cites documents from 2010–2014 that related to security risks and military suitability determinations but those documents never mention honorable service determinations. (See Third Miller Decl. ¶ 6.) The declaration also states that “it has always been DOD’s intent to require the completion of a suitability for service determination well prior to accession and a certification of honorable service for the purposes of
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846 F.3d 656, 663 (4th Cir. 2017) (“[T]he dispute here arises from a problem that has become all too common among administrative decisions challenged in this court—a problem decision makers could avoid by following the admonition they have no doubt heard since their gradeschool math classes: Show your work.”).
B. Retroactivity The need for a reasoned explanation on the record is even more important where, as here, the agency appears to be retroactively applying its new policy. As explained in the Court’s preliminary injunction opinion, the October 13th Guidance retroactively changes standards and procedures applicable to MAVNIs who enlisted prior to October 13, 2017. Kirwa, 2017 WL 4862763, at *13–14. “As [the D.C. Circuit] ha[s] lamented, the retroactivity rules are easy to state, less easy to apply.” Arkema, Inc. v. EPA, 618 F.3d 1, 7 (D.C. Cir. 2010). “Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity.” Landgraf v. USI Film Prod., 511 U.S. 244, 270 (1994). As Justice Holmes once said, “[p]erhaps the reasoning of the cases has not always been as sound as the instinct which directed the decisions.” Danforth v. Groton Water Co., 59 N.E. 1033, 1034 (Mass. 1901). Broadly speaking, “[t]he conclusion that a particular rule operates ‘retroactively’ comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a
naturalization” (id. ¶ 5) but it cites no documents, because, as far as the Court is aware, there is no evidentiary support for this intent. As best as can be determined, Miller’s explanation for the October 13th Guidance is a post-hoc rationalization that was adopted after litigation was instituted and after the Court expressed its skepticism that imposition of an active-duty requirement would comport with 8 U.S.C. § 1440. Kirwa, 2017 WL 4862763, at *12.
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relevant past event.” Landgraf, 511 U.S. at 270.
In the administrative context, “[g]enerally, an agency may not promulgate retroactive
rules without express congressional authorization.” Arkema, 618 F.3d at 7.12 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).
In arguing against retroactivity, defendants claim that they have only interpreted 8 U.S.C.
§ 1440, yet, 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).13 Under D.C. Circuit precedent, a new rule or policy changes the legal
12 As now Justice Gorsuch explained,
[T]he more an agency acts like a legislator—announcing new rules of general applicability—the closer it comes to the norm of legislation and the stronger the case becomes for limiting application of the agency’s decision to future conduct. The presumption of prospectivity attaches to Congress’s own work unless it plainly indicates an intention to act retroactively. That same presumption, we think, should attach when Congress’s delegates seek to exercise delegated legislative policymaking authority: their rules too should be presumed prospective in operation unless Congress has clearly authorized retroactive application. De Niz Robles v. Lynch, 803 F.3d 1165, 1172 (10th Cir. 2015). 13 In the related Nio case counsel for DOD appeared to acknowledge that the October 13th Guidance changed the legal landscape: THE COURT: . . . I think that to say you can’t be surprised that you find yourself with a lawsuit. The rules of the game have changed whether you have decided there’s good reason for some of the rules and I’ve decided there’s not good reason for some of the other rules. You have to tell me that the legal landscape has changed. MR. KISOR: Yes, your Honor. And there’s part of the enlistment contract that says I understand the laws and regulations may change at anytime and that that may affect me and they’ve all signed that. But your point, I take your point, your Honor, which is that the Department of Defense has to make the best decision it can with the information it has. (Nio, Tr. of PI Hr’g, Oct. 31, 2017, ECF No. 75 (“10/27/2017 Tr.”) at 18.)
15

landscape if it “is ‘substantively inconsistent’ with a prior agency practice and attaches new legal consequences to events completed before its enactment.” Arkema, 618 F.3d at 7 (citation omitted). “Even where a rule merely narrows ‘a range of possible interpretations’ to a single ‘precise interpretation,’ it may change the legal landscape in a way that is impermissibly retroactive.” Id.; see also Nat’l Min. Ass’n, 292 F.3d at 859. Put another way, if the new rule “effects a substantive change from the agency’s prior regulation or practice,” then it is impermissibly retroactive. Ne. Hosp. Corp. v. Sebelius, 657 F.3d 1, 14 (D.C. Cir. 2011) (citation omitted).
The October 13th Guidance changes the legal landscape: DOD has never applied the criteria listed therein to MAVNI enlistees before now. By promulgating the October 13th Guidance, DOD attaches new legal meaning to the concept of honorable service in the Selected Reserve. Even assuming arguendo that DOD has authorization to interpret an immigration statute, DOD’s “interpretation” of 8 U.S.C. § 1440 clearly marks a substantive change from its past practice of certifying a Form N-426 based on an enlistee’s past service at the time he or she submits the N-426 for certification.
Furthermore, as observed by now Justice Gorsuch, “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.
16

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, but DOD’s new procedures rob plaintiffs of this opportunity. Moreover, the Court
remains convinced, based on the allegations in the complaint and the record before it, that
DOD’s application of the October 13th Guidance would result in serious inequities to the
MAVNI enlistees that are not counterbalanced by any significant statutory interests. Kirwa,
2017 WL 4862763, at *14.
In its motion to dismiss, defendants argue that the October 13th Guidance does not attach
new legal consequences to events completed before its enactment, but instead, it only upsets
expectations, because
Section II of the policy—the section applicable to the Plaintiffs here—applies only to certifications made on or after October 13, 2017, not to any prior certification decisions. The fact that Plaintiffs enlisted prior to the date of the new policy does not make the policy retroactive. . . . Plaintiffs, moreover, were put on notice and acknowledged at the time of their enlistment that “[l]aws and regulations that govern military personnel may change without notice to me. Such changes may affect my status, pay, allowances, benefits, and responsibilities as a member of the Armed Forces REGARDLESS of the provisions of this enlistment/reenlistment document.”
(MTD at 29.) However, prospective changes are not the same as retroactive changes to
preexisting and longstanding policies. Plaintiffs were put on notice that their status, pay,
allowances, etc. could change going forward, but would defendants argue, for example, that they
could ask for pay back from Selected Reservists because they lowered compensation going
forward? That is precisely what defendants purport to do with the October 13th Guidance, by
redefining the meaning of honorable service already performed. As alleged by plaintiffs,
defendants are attaching new legal consequences to events completed before the October 13th
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Guidance. In effect, as of October 13, 2017, honorable service determinations require a finding of present military suitability, which had never been required before that date. See Arkema, 618 F.3d at 7.
Defendants also suggest that the new policy does not change the legal landscape because they always intended to put a program like this into effect:
The new policy also does not change the legal landscape. Although no formalized process for N-426 certification existed prior to October 13, 2017, it had always been DoD’s intent—since the creation of the MAVNI program—to require the completion of a suitability-for-service determination prior to a certification of honorable service, given the need to verify that an enlistee is qualified to serve. See Third Miller Decl. ¶ 5. (MTD at 30.) Defendants cite no authority for the proposition that an agency’s unexpressed intention justifies an otherwise impermissible retroactive change in policy or practice, and this Court will not sanction retroactive action on the basis of an agency’s hidden intent. See Landgraf, 511 U.S. at 270 (“Since the early days of this Court, we have declined to give retroactive effect to statutes burdening private rights unless Congress had made clear its intent.”). V. CONSTITUTIONAL CLAIMS Plaintiffs also allege constitutional claims in Count V under the “Uniform Rule of Naturalization Clause,” U.S. Const. art. 1, § 8, cl. 4, and under the Fifth Amendment’s Due Process Clause. The Court finds that plaintiffs have stated facially plausible constitutional claims under the Naturalization Clause, and under the Due Process Clause for procedural due process, but it dismisses plaintiffs’ claim for violating substantive due process. A. Naturalization Clause The Constitution vests Congress with the power “[t]o establish an uniform Rule of Naturalization.” U.S. Const., art. 1, § 8, cl. 4. Plaintiffs claim that DOD’s October 13th Guidance
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unlawfully interferes with Congress’s authority “by creating preconditions to naturalization that Congress did not authorize.” (Pls.’ Opp. to MTD, Dec. 1, 2017, ECF No. 49 (“Opp.”) at 36.)
Defendants argue that plaintiffs do not have standing to assert a claim under the Rule of Naturalization Clause because “[t]he Clause does not on its face extend or preserve any particular rights belonging to individuals like Plaintiffs here.” (MTD at 33.) There is a lack of precedent on point, but at least one other district court has held that plaintiffs have standing to assert a claim against an agency under the theory that its actions violate the Naturalization Clause. See Wagafe v. Trump, No. C17-0094, 2017 WL 2671254, at *7 (W.D. Wash. June 21, 2017).
In Wagafe v. Trump, the plaintiffs alleged that USCIS unlawfully implemented a program imposing extra-statutory eligibility criteria on applications for citizenship or adjustment of immigrant status. Id. at *1. The defendants argued, as they do here, that the plaintiffs lacked standing because there was no private right of action under the Naturalization Clause and, even if the program violated the clause, Congress, not the plaintiffs, would be the injured party. Id. at *7. The district court rejected these arguments, finding that the plaintiffs had standing to assert a violation of the Naturalization Clause because they suffered injury from having to undergo additional requirements not imposed by Congress. Id. This Court finds the reasoning of Wagafe to be persuasive and will not dismiss plaintiffs’ claim for lack of standing.
Defendants also argue that “Plaintiffs have not plausibly alleged that Defendants have violated the Rule of Naturalization . . . [because] [n]either the language of § 1440(a) nor any other provision of the INA precludes DoD from implementing sensible procedural rules, including background investigations, in connection with its honorable-service determinations.” (MTD at 34.) But the crux of plaintiffs’ complaint is that 8 U.S.C. § 1440 precludes DOD from implementing the October 13th Guidance and that DOD’s policies were not “sensible” or
19

implemented in a lawful manner. To credit defendants’ argument, the Court would have to ignore plaintiffs’ well-pled allegations and to do so would be improper on a motion to dismiss. See Herron, 861 F.3d at 173.
B. Due Process Clause The Fifth Amendment provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. Plaintiffs claim that DOD’s October 13th Guidance “violates their Due Process rights by denying or impairing their statutory right to seek naturalization.” (Opp. at 36.) Plaintiff allege violations of procedural due process and substantive due process.
1. Procedural Due Process “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). To state a facially plausible claim for violation of procedural due process a plaintiff must allege that he or she has a (1) protected liberty or property interest that the defendant has (2) deprived him or her of without adequate procedural protections. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 576–77 (1972); Mathews, 424 U.S. at 332–35. Plaintiffs allege that defendants’ October 13th Guidance deprives them of a protected property interest—under 8 U.S.C. § 1440 and related federal immigration statutes—to apply for expedited citizenship and obtain immigration benefits “for which they are eligible and seeking.” (Am. Compl. ¶ 129.) Defendants argue that “Plaintiffs cannot claim a protected property or liberty interest now in the mere possibility that they will eventually be deemed eligible for citizenship and thereafter naturalized” (MTD at 35), and that plaintiffs are essentially claiming an interest in having DOD certify their N-426s. (Defs.’ Reply in Supp. of MTD, Dec. 8, 2017, ECF No. 50, at 22.)
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However, courts “have held that naturalization applicants have a property interest in seeing their applications adjudicated lawfully.” Wagafe, 2017 WL 2671254, at *8. At this stage the Court need not define the exact contours of plaintiffs’ protected property interest. Plaintiffs have sufficiently alleged that 8 U.S.C. § 1440 bestows a right to apply for expedited citizenship in exchange for lengthy military service and that defendants are depriving them of this right by failing to certify their past honorable service. See Brown v. Holder, 763 F.3d 1141, 1147–48 (9th Cir. 2014) (“Brown had such a protected interest in being able to apply for citizenship, both as an adult and derivatively through his mother as a minor. As the government conceded at oral argument, Brown had a right to apply for citizenship, established by federal law.”)
Defendants also contend that plaintiffs have received all the process they are due because “categorical agency determinations do not implicate the Due Process Clause. There is no constitutional requirement that members of the public receive notice and an opportunity to be heard before an agency may implement a new policy.” (MTD at 35.) Defendants are correct that agency rules of broad applicability normally do not implicate the same due-process concerns typical of agency adjudications involving individual rights. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445–46 (1915); see also Sw. Airlines Co. v. Transp. Sec. Admin., 554 F.3d 1065, 1074 (D.C. Cir. 2009) (“There we appeared to assume the decision was adjudicative, and thus belonged to the class of cases for which due process is typically, and almost exclusively, applicable.”)
But this case is not the normal case. Plaintiffs are challenging specific aspects of the October 13th Guidance as applied to them, and allege that it summarily denies them the right to receive honorable service certifications they could have received prior to the October 13th Guidance. These allegations implicate due-process concerns. See Wagafe, 2017 WL 2671254,
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at *8 (“Here, Plaintiffs allege that all the statutory requirements have been complied with, and the application of CARRP’s extra-statutory requirements deprives Plaintiffs of the right to which they are entitled. This is sufficient to allege a violation of due process.”); see also Greene v. Lujan, No. C89-645Z, 1992 WL 533059, at *8 (W.D. Wash. Feb. 25, 1992), aff’d sub nom. Greene v. United States, 996 F.2d 973 (9th Cir. 1993), and aff’d sub nom. Greene v. Babbitt, 64 F.3d 1266 (9th Cir. 1995) (“The protections of the Fifth Amendment would be seriously impaired if this Court allowed the Government to cut off benefits without a hearing by creating new eligibility requirements and then summarily holding that current benefit recipients do not meet the new requirements.”)
2. Substantive Due Process Plaintiffs allege that plaintiffs’ right to apply for naturalization “gives rise to a fundamental liberty interest.” (Opp. at 43.) Defendants argue that plaintiffs have not sufficiently alleged a claim for violation of substantive due process rights. Plaintiffs’ substantive due process claim asks this Court to recognize a new fundamental right under the Constitution. As the Supreme Court recently explained, recognizing a new fundamental right requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015) (internal citation omitted). The D.C. Circuit has been reticent to recognize new substantive due process rights. See Aka v. United States Tax Court, 854 F.3d 30, 34–35 (D.C. Cir. 2017). Moreover, although the D.C. Circuit has yet to address the issue since the Supreme Court revised the substantive-due-process inquiry in
22

Obergefell, the D.C. Circuit has held that a claim for a substantive due process violation must carefully describe the “asserted fundamental liberty interest.” Abigail All. for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 702 (D.C. Cir. 2007) (en banc) (citation omitted); Sanders v. D.C., 522 F. Supp. 2d 83, 91 (D.D.C. 2007). This has not been done by plaintiffs. Therefore, the Court dismisses their substantive due process claim. VI. MANDAMUS
“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). Defendants argue that
Plaintiffs are not entitled to invoke the Mandamus Act, 28 U.S.C. § 1361. Mandamus is functionally coextensive with the relief Plaintiffs seek under APA § 706(1). Plaintiffs are either entitled to that relief or they are not, but they cannot invoke mandamus as a fallback in the event that their core APA claim fails. (MTD at 37.) Plaintiffs concede that if they succeed on their APA claims, the Court need not reach their mandamus claims, but maintain that “until the Court’s final order granting APA relief on these grounds, Plaintiffs are not precluded from pleading their alternative relief.” (Opp. at 36 n.22.) The Court agrees. Normally, if a Court has jurisdiction to grant relief under the APA, “it need not reach the question of whether mandamus is available to compel action by the agency.” Hamandi v. Chertoff, 550 F. Supp. 2d 46, 53 (D.D.C. 2008). However, defendants continue to dispute the Court’s authority to grant plaintiffs relief under the APA, and it would be premature to dismiss a cause of action on the ground that an adequate alternative remedy exists before
23

determining the contours of that remedy and plaintiffs’ entitlement to that remedy.14 VII. SUMMARY JUDGMENT
As detailed supra Part IV.A, to support their motion for summary judgment defendants primarily rely on a declaration that was executed after the agency action at issue here, which, as previously explained, cannot be treated as part of the administrative record. In addition, D.C. Local Civil Rule 7(h)(2) requires “motions for summary judgment and oppositions thereto [to] include a statement of facts with references to the administrative record.” Defendants provided an administrative record with an index but no statement of facts referencing that record. Thus, because defendants rely on a declaration that is not a part of the administrative record, and because they failed to comply with D.C. Local Civil Rule 7(h)(2), the Court cannot evaluate defendants’ motion for summary judgment against the administrative record as presently compiled by defendants. Therefore, the Court denies without prejudice defendants’ motion for summary judgment. Bluewater Network, 721 F. Supp. 2d at 15; see also Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (“This circuit has long upheld strict compliance with the district court’s local rules on summary judgment when invoked by the district court.”)
CONCLUSION For the reasons stated above, the Court denies without prejudice defendants’ motion for summary judgment. The Court grants defendants’ motion to dismiss plaintiffs’ constitutional substantive-due-process claim, but otherwise denies defendants’ motion to dismiss with
14 For similar reasons, the Court finds that it need not reach defendants’ other arguments about appropriate relief under certain provisions of the APA because multiple claims under the APA and the Constitution remain viable at this stage and could entitle plaintiffs to the relief they seek.
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prejudice. A separate order, accompanies this Memorandum Opinion. /s/ Ellen Segal Huvelle ELLEN SEGAL HUVELLE United States District Judge
Date: January 11, 2018
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAHLON KIRWA, et al., Plaintiffs,
v. UNITED STATES DEPARTMENT OF DEFENSE, et al.,
Defendants.

Civil Action No. 17-1793(ESH)

MEMORANDUM OPINION AND ORDER Before the Court is defendants’ motion for reconsideration of the Court’s order denying defendants’ motion to dismiss plaintiffs’ constitutional claims. Interlocutory decisions “may be revised at any time before the entry of a judgment.” Fed. R. Civ. P. 54(b). However, a court “should be loathe” to grant a motion for reconsideration “in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice.” Marshall v. Honeywell Tech. Sols., Inc., 598 F. Supp. 2d 57, 59 (D.D.C. 2009) (citation omitted); see also Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 17 (D.C. Cir. 2015). “The moving party has the burden of showing that reconsideration is warranted, and that some harm or injustice would result if reconsideration were to be denied.” Marshall, 598 F. Supp. 2d at 60; see also Nat’l Ctr. for Mfg. Scis. v. Dep’t of Def., 199 F.3d 507, 511 (D.C. Cir. 2000) (noting that “a district court should not grant a motion for reconsideration unless the moving party shows new facts or clear errors of law which compel the court to change its prior position”). In their motion for reconsideration, defendants argue that the “Court appears to have

overlooked or misunderstood several of Defendants’ arguments and controlling authorities.” (Defs.’ Mot. for Recons., ECF No. 72, at 1.) Yet defendants fail to point the Court to any controlling authority in either their initial motion or reply brief that would render the Court’s earlier decision clear error. Instead, defendants repackage arguments already made and attempt to slip in additional arguments not previously made before the Court. “[I]n this Circuit, it is ‘well-established’ that motions for reconsideration ‘cannot be used as an opportunity to reargue facts and theories upon which a court has already ruled, nor as a vehicle for presenting theories or arguments that could have been advanced earlier.’” Dist. Hosp. Partners, L.P. v. Sebelius, No. 11-cv-0116, 2011 WL 13248160, at *1 (D.D.C. Sept. 1, 2011) (citation omitted).
Even considering defendants’ new arguments, the Court finds that defendants have not met their burden of demonstrating that the Court’s initial decision was clearly erroneous and worked a manifest injustice. For these reasons defendants’ motion for reconsideration, ECF No. 72, is DENIED.

SO ORDERED. Date: May 23, 2018

/s/ Ellen Segal Huvelle ELLEN SEGAL HUVELLE United States District Judge

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MAHLON KIRWA, et al., Plaintiffs,
v. UNITED STATES DEPARTMENT OF DEFENSE, et al.,
Defendants.

Civil Action No. 17-1793(ESH)

MEMORANDUM OPINION AND ORDER Before the Court is defendants’ motion to clarify the Kirwa class certification order, ECF No. 83. “[T]here is no Federal Rule of Civil Procedure specifically governing “motions for clarification.” United States v. Philip Morris USA Inc., 793 F. Supp. 2d 164, 168 (D.D.C. 2011). “The general purpose of a motion for clarification is to explain or clarify something ambiguous or vague, not to alter or amend.” Id. (citation omitted). The Court will deny defendants’ motion because there is nothing ambiguous or vague about the class definition. The Court’s class certification order entered on December 1, 2017—granting plaintiffs’ unopposed motion for class certification—defines the Kirwa class as all persons who (1) have enlisted in the U.S. military through the Military Accessions Vital to the National Interest (“MAVNI”) program prior to October 13, 2017, (2) have served in the Selected Reserve of the Ready Reserve (“Selected Reserve”), and (3) have not received a completed and duly authenticated Form N-426. (ECF No. 48; see also ECF No. 32 (provisionally certifying the same class for purposes of
1

preliminary injunctive relief on October 27, 2017).) Similarly, the December 4, 2017 class
notice agreed to by the parties described class membership in the following manner:
You are a member of the class in this litigation if you meet the following criteria:
 You are an enlistee in the Military Accessions Vital to the National Interest (“MAVNI”) program;
 You enlisted prior to October 13, 2017;
 You have served in the Selected Reserve; and
 You have not received a completed and signed Form N-426 from DOD.
(ECF No. 54-1.) Defendants have filed the instant motion because
At the time of class certification, Defendants understood the class to comprise MAVNI enlistees in the Delayed Training Program (“DTP”), i.e., those enlistees who had not yet entered initial entry training (“IET,” also known as basic combat training or “BCT”) because their background investigations and military service suitability determinations remained pending. As set forth below, Defendants have identified two other groups of MAVNI affiliates that Defendants do not understand to fall within the class as defined. These individuals include (1) former MAVNI Soldiers who were discharged prior to October 13, 2017, and who may not have received a signed Form N-426 prior to discharge; and (2) MAVNI Soldiers who had already shipped to IET as of October 13, 2017, and who should have received, but may not certainly have received, a signed N-426 shortly after arriving at IET.
(Defs.’ Mot. to Clarify, ECF No. 83, at 1–2.)
“The Court denies plaintiff’s motion to ‘clarify’ because, first of all, the motion does not
actually indicate that there was anything unclear about the Order.” Comm. on Oversight & Gov’t
Reform v. Holder, No. 12-cv-1332, 2014 U.S. Dist. LEXIS 199455 at *2 (D.D.C. Sept. 9, 2014).
That a MAVNI was discharged prior to October 13, 2017, or that a MAVNI had shipped to IET
before October 13, 2017, would not automatically exclude that enlistee from falling within the
class definition of a (1) MAVNI enlistee who had enlisted prior to October 13, 2017, (2) served
in the Selected Reserve, and (3) not received a completed and duly authenticated Form N-426.
2

Despite acknowledging that the two groups of MAVNI enlistees defendants now seek to exclude fall within the Court’s current class definition, defendants suggest that the Court’s motivation and concern for certifying the class did not extend to these two groups. (Defs.’ Mot. to Clarify, ECF No. 83, at 4–5.) This argument fails for multiple reasons. First, the plain language of the Court’s order governs over any implicit intent defendants seek to divine from the Court’s opinion. Second, in both this case and the related Nio case, the Court and the parties have been operating under the assumption that Kirwa class members could move through military processes differently depending on individualized circumstances, but what made them Kirwa class members was past honorable service and the lack of a completed Form N-426.1
Defendants themselves admit in their reply that they understand the Court’s preliminary injunction order “to require Army officials to render honorable service determinations for any requesting MAVNI Soldiers who have served in the Selected Reserve of the Ready Reserve, regardless of these Soldiers’ current status.” (ECF No. 89, at 2.) What appears to be motivating defendants’ motion is a concern that defendants will face challenges in identifying and reporting on discharged MAVNIs or MAVNIs who have gone to IET without an N-426. (Id.) But the fact that defendants have to expend resources to identify and track class members is not a reason to exclude class members who clearly fall within the definition of class. See Philip Morris USA Inc., 793 F. Supp. 2d at 168 (“It is significant that Defendants fail to identify anywhere in their Motion which provisions of [the challenged order] are ‘ambiguous’ or ‘vague.’ Rather what Defendant seek is to add new language to [the challenged order] containing new declarations of
1 Indeed the class definition in the related Nio action largely parallels the Kirwa definition except for the fact that Kirwa class members do not have an N-426. Defendants’ counsel and counsel in the related Nio action have treated the subclasses they now seek to exclude as part of the class on multiple occasions. (See, e.g., Pls.’ Opp. to Defs.’ Mot. to Clarify, ECF No. 86, at 4–7.)
3

law.”). This case is before a magistrate judge for case-management purposes and the parties should seek a joint resolution of issues regarding class administration if defendants are experiencing administrative problems tracking and reporting on the class.2 Granting defendants’ motion would wrongly exclude class members who fall within the current and unambiguous class definition. For these reasons—and the additional reasons aptly explained in plaintiffs’ opposition to defendants’ motion (ECF No. 86)—defendants’ motion to clarify the Kirwa class certification order is DENIED.

SO ORDERED. Date: May 23, 2018

/s/ Ellen Segal Huvelle ELLEN SEGAL HUVELLE United States District Judge

2 If plaintiffs know of MAVNI enlistees who are unable to obtain N-426s and fall within the definition of the class, then they should inform defendants directly. It may also be true that defendants will be unable to identify discharged MAVNIs and provide contact information to plaintiffs’ counsel for these MAVNIs. For these and any other administrative disputes, the parties should use their best efforts to reach resolution before going to the magistrate judge. As the Court has reminded the parties in this action and in the related Nio action, filing multiple motions after every individualized disagreement in the case is the most judicially inefficient way to move towards resolution.
4