UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANGE SAMMA, et al. , Plaintiffs,

v. UNITED STATES DEPARTMENT OF DEFENSE, et al. , Defendants
. Civil Action No. 20-cv-1104 (ESH)

MEMORANDUM OPINION The United States has a long hi story of allowing noncitizens t o serve in its military and providing those who serve with a n expedited path to citizenship . But in recent years, despite its need for noncitizen enlistees to f ill its ranks, the Department of Defense (“DOD”) had placed obstacles in that path to citi zenship. DOD’s actions have led to a significant amount of litigation, much of it before this Court. T his is another su ch case that p its noncitizen service members against the DOD. 1 Plaintiffs are noncitizens serving in the United States militar y who wish to file applications for naturaliz ation pursuant to 8 U.S.C. § 1440, wh ich provides an expedited path to naturalization based on military s ervice during designated peri ods of hostilities. They are challenging a DOD policy adopte d on October 13, 2017, that requ ires them to meet certain durational and type of service req uirements (“Minimum Service R equirements”) before they can

1 This case was assigned to this Court pursuant to Local Rule 40 .5 because it is related to three pending cases: Nio v. U.S. Dep’t of Homeland Security , No. 17-cv-0998 (D.D.C.); Kirwa v. U.S. Dep’t of Defense , No. 17-cv-1793 (D.D.C.); Calixto v, U.S. Dep’t of the Army , No. 18cv1551 (D.D.C.).2 obtain a Certification of Honorable Service (USCIS Form N-426) (“N-426 Policy”). A certified N-426 is required by the United States Citizen and Immigration Service (“USCIS”) in order to apply for naturalization base d on military service. Plaintiffs bring claims under the Administrative Procedure Act (“AP A”) seeking to vacate the Mini mum Service Requirements because they are arbitrary and capricious; not in accordance wi th law; and in exce ss of statutory jurisdiction; result in agenc y action unlawfully withheld and unreasonably delayed; and were enacted without notice and comment. See 5 U.S.C. §§ 553, 706(1), 706(2)(A) , (C), (D). The Court has certified a class and two subclasses to challenge the se requirements. See Samma v. U.S. Dep’t of Defense, No. 20-cv-1104, 2020 WL 4501000, a t *10 (D.D.C. Aug. 4, 2020). Before the Court are the parties’ cross-motions for summary jud gment. ( See Pls. Mot. for Summ. J., ECF No. 4 (“Pls.’ SJ Mot. ”); Defs.’ Cross-Mot. for Su mm. J., ECF No. 19 (“Defs.’ SJ Mot.”).) For the reasons state d herein, the Court will grant p laintiffs’ motion for summary judgment and vacate the Minimum Se rvice Requirements in DOD’s N -426 Policy.
BACKGROUND
I. STATUTORY FRAMEWORK A. Use of Noncitizens in the United States Armed Forces Noncitizens have served in the United States military since the founding of this country, both voluntarily and as draftees. ( See Pls.’ Mot. for Class Cert . Ex. 2, at 3, ECF No. 5-3, also available at https://dod.defense .gov/news/mavni-fact-sheet.pdf (“MAVNI Fact Sheet”)); see also Act of July 30, 1813, 13 Cong. ch. 36, 3 Stat. 53, https://www. loc.gov/law/help/statutes-atlarge/13th-congress/c13.pdf (allo wing noncitizens to enlist); S elective Service Act of 1948, Pub. L. No. 80-759, §§ 3-4, 62 Stat. 604, 605- 606 (authorizing the i nduction of male aliens). Although the groups of noncitizens who have been allowed to enl ist has varied over the years, at this time the groups are defin ed in 10 U.S.C. § 504(b), which s ets out the “Uniform Citizenship3 and Residency Requirements for Enlistment in the Armed Forces that Congress first adopted in
2006. See National Defense Authoriza tion Act for Fiscal Year 2006, Pub. L. No. 109-163, § 542(a), 119 Stat. 3136. Two parts of § 504(b) are relevan t to the presen t litigation. First, § 504(b)(1) provides that: “A person may be enliste d in any armed force . . . if the person is . . . (B) An alien who is lawfully admitted for permanent residence, as defined in sectio n 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a )(20)).” “The term ‘lawful ly admitted for permanent residence’ means the status of having been lawfully accorded th e privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” 8 U.S.C.A. § 1101(a)(20). Approxi mately 7,000 lawful permanent residents (“LPRs”) enlist each year. ( See Administrative Record (“AR”) 19.) 2 Second, § 504(b)(2) provides that “the Secretary concerned may authorize the enlistment of a person not described in paragr aph (1) if the Secretary det ermines that such person possesses a critical skill or expertise--(A) that is vital to the nationa l interest; and (B) that the person will use in the primary daily duties of that person as a member of t he armed forces.” 10 U.S.C. § 504(b)(2). In 2008, the Secretar y of Defense utilized his au thority under § 504(b)(2) to authorize the Military Accessions Vital to the Na tional Interes t (“MAVNI”) Pilot Program. ( See AR 124.) The MAVNI Program allowed non-citizens who were not L PRs to enlist in the United States military if it was determined that enlistment would be v ital to the national interest because they were “health care professi onals” in certain specialties or possessed “critical foreign language skills.” (AR 46 (Decl . of Stephanie Miller ¶ 4, July7, 2017) (“7/7/17 Miller Decl.”).)

2 Citations to the Administrative Record (“AR”) refer to the adm inistrative record that was prepared by the DOD for this cas e and provided to the Court on May 22, 2020. An index to the AR is docketed at ECF No. 18.4 MAVNI enlistments stopped in 201 6, for reasons discussed in gre ater detail infra , but from 2008 to 2016, more than 10,000 individuals enlisted in the military through the MAVNI program. ( See AR 19, 46.) 3
B. Statutory Eligibility for Natura lized Citizenship Based on Mili tary Service The service and sacrifice of nonc itizens who serve in the Unite d States military has long been recognized with grants of eligibility for citizenship. See, e.g ., 1813 Act (allowing noncitizens to become citizens immediately upon entering military service i f they declared an intent to naturalize); Act of July 17, 1862, 37 Cong. ch. 200, 12 Stat. 5 94 (available at https://www.loc.gov/law/help/statutes-at-large/37th-congress/se ssion-2/c37s2ch200.pdf ) (allowing noncitizens who enlisted to b ecome citizens upon being honorabl y discharged). Since the enactment of the Nationality Act of 1940, how ever, paths to citizenship b ased on military service have been codified as part of our immigration laws. See Nationality Act of 1940, Pub. L. No. 76–853, § 324, 54 Stat. 1137, 1149–1150 (1940) (“Nat ionality Act”). The Nationality Act provided t hat a “person . . . who has serve d honorably at any time in the United States Army, Navy, Marin e Corps or Coast Guard for aperiod or periods aggregating three years and who, if separated f rom such service, was separa ted under honorable conditions, may be naturalized . . .” without ha ving to satisfy several of the otherwise applicable requirements for naturalization. Id . The statute further provide d “[a]ny such period or periods o f service under honorable condi tions . . . shall be proved by dul y authenticated copies of records of the executive departments havi ng custody of the records of such service.” Id . at 1149-50.

3 The MAVNI Program is de scribed in detail in Nio v. U.S. Dep’t of Homeland Sec. , 270 F. Supp. 3d 49, 53-54 (D.D.C. 2017) (“ Nio I ”); Nio v. U.S. Dep’t of Homeland Sec. , 385 F. Supp. 3d 44, 47-49 (D.D.C. 2019) (“Nio II ”); and Kirwa v. U.S. Dep’t of Def. , 285 F. Supp. 3d 21, 22 (D.D.C. 2017) (“Kirwa I ”).5 In 1942, the Nationality Act was amended to add a new title tha t provided that those “who ha[ve] served or hereafter se rve[] honorably” in World War II and who have been lawfully admitted to the United States were eligible to naturalize witho ut meeting the three-year service requirement. Act of Mar. 27, 1942, Pub. L. No. 77-507, § 1001, 56 Stat. 176, 182. For these applicants, service could be proved either by filing two affida vits of at least two citizen servicemembers “of the noncommi ssioned or warrant officer grade or higher . . . or by a duly authenticated copy of the record of the executive department ha ving custody of the record of petitioner’s service, showing tha t the petitioner is or was dur ing the present war a member serving honorably in such armed forces.” Id . A later amendment that same year extended this type of naturalization to thos e who served in World War I. See Act of Dec. 7, 1942, Pub. L. No. 77-791, 56 Stat. 1041-42. In 1948, Congress extended eligib ility to naturalize based on service during WWI or WWII to persons who were not LPRs at the time of enlistment if (1) at the time of enlistment or induction such person shall have be en in the United States or a n outlying possession (including the Panama Canal Zone, but exclu ding the Philippine Islands), o r (2) at any time subsequent to enlistment or induction such pers on shall have been lawfully ad mitted to the United States for permanent residence.” Act of June 1, 1948, Pub. L. No. 80-567, 62 Stat. 281-82. The 1948 amendment also added the follo wing provision, which is at the h eart of this case: “[t]he executive department under whic h such person served shall determine whether persons have served honorably in an active-dut y status, and whether separati on from such service was under honorable conditions.” Id . Further, it altered the met hods for proving honorable servic e, eliminating the option of using an authenticated copy of a serv ice record and replacing it with the option of providing a “duly authent icated certification from th e executive department under6 which the petitioner is serving” t hat “states whether the petit ioner has served honorably in an active-duty status duri ng either World War I or [World War II]. ” 4 Id . at 282. In 1952, Congress replaced the Nati onality Act with the Immigra tion and Nationality Act (“INA”), Pub. L. No. 82-414, 66 S tat. 163 (1952), but it made n o substantive changes in the law with respect to naturalization ba sed on military service, provi ding one route for persons who served honorably at any time for periods aggregating three year s, see INA § 328 (codified at 8 U.S.C. § 1439), and another route for persons who had served ho norably in an active-duty status during WWI or WWII. See INA § 329 (codified at 8 U.S.C. § 1440). Section 1440 maintai ned the language from the Nationalit y Act that “[t]he executive dep artment under which such person served shall determine whether persons have served honorably in an active-dut y status, and whether separation from such s ervice was under honorable condit ions” and that “service in the military, air, or naval forces of the United States shall be pr oved by a duly authenticated certification from the executiv e department under which the pet itioner served or is serving, which shall state whether the pe titioner served honorably in anactive-duty status during either World War I or during a per iod beginning September 1, 1939, and ending December 31, 1946, and was separated from such s ervice under honorable conditions. ” Both § 1439 and § 1440 provided for revocation of citizen ship “if at any time subseque nt to naturalizati on the person is separated from the military, air, or naval forces under other t han honorable conditions, and such ground for revocation shall be in addition to any other provide d by law.” 8 U.S.C. §§ 1439(f), 1440(c). In 1961, § 1440 was amended to include pe rsons who served in th e Korean Conflict. See Act of Sept. 25, 1961, Pub. L. No. 87-301, § 8, 75 Stat. 650. 6 54. Then, in 1968, § 1440 was

4 The affidavit option remained unchanged.7 amended to include those who ser ved in the Vietnam War, as well as those who would serve in future-designated pe riods of hostility. See Act of Oct. 24, 1968, Pub. L. No. 90-633, § 1, Oct. 24, 1968, 82 Stat. 1343-44 (coverage ext ended to “any other per iod which the President shall designate by Executive Order as aperiod in which Armed Forces of the United States are or were engaged in military operations involving armed conflict wi th a hostile foreign force”). To date, the additional designated periods of hostilities have bee n the Persian Gulf Conflict from 1990 to 1991, see Exec. Order No. 12939, 59 Fed. Reg. 61231 (Nov. 22, 1994), and the War on Terrorism from September 11, 2001 to the present. See Exec. Order No. 13269, 67 Fed. Reg. 45, 287 (July 3, 2002). In 2003, Congress made two substantiv e changes to the INA’s pro visions for naturalization based on military service. First, § 1439 was am ended to reduce the time-in-service requirement from thr ee years to one year. See National Defense Author ization Act for Fiscal Year 2004, § 1701, Pub. L. No. 108-136, 117 Stat. 1392, 1691-92 (2003) (“2004 NDAA”). Thus, since 2003, a lawful permanent resident (“LPR”) “who has served honorably at any time in the armed forces of the United States for a period or periods a ggregating one year, and, who, if separated from such service, was never separated except under h onorable conditions” is eligible for naturalization. 8 U.S.C. § 1439; see also 8 C.F.R. § 328.2. Second, § 1440(a) was amended to include persons who served “ in the Selected Reserve of the R eady Reserve” in addition to those who served in an “active-duty status.” 2004 NDAA, § 1702, 117 Stat. at 1691-93. Thus, since 2003, “any person who . . . has served honorably as a mem ber 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 certain designa ted periods of hostilities, which include any time from September 11, 2001, to the present, is eligible for naturalization if the person is a lawful permanent resident8 or if the person enlisted while i n the United States or in cert ain other specified locations. See 8 U.S.C. § 1440 (emphasis added); see also 8 C.F.R. § 329.2 (“To be eligible for naturalization under section 329(a) of the Act, an a pplicant must establish th at he or she: (a) Has 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 Sta tes . . . .” (emphasis added)). Both § 1439 and § 1440 provide, as they hav e since 1952, that “[c]itizenship granted pursuant to this sec tion may be revoked . . . if the pe rson is separated from the Armed Forces under other than honorable conditions before the person has served honorably for a period or periods aggregating five ye ars.” 8 U.S.C. §§ 1439(f); 1440( c).
C. Immigration Laws and Regulations The INA provides that “[t]he so le authority to naturalize perso ns as citizens of the United States is conferred upon the Atto rney General,” 8 U.S.C. § 1421 (a), but the authority to make decisions on all naturalization a pplications has been delegated to the USCIS, 5 including applications based on military s ervice pursuant to 8 U.S.C. § 1 439 or § 1440. USCIS requires all applicants for naturalization to submit USCI S Form N-400 (“Application for Natur alization”). The a pplication is first c onsidered by a USCIS immigration officer, who “conduct[s] a personal investigation of the person applying for naturalization” and then “conduct[s] [an] examinati on” (often referred to as the “i nterview”). See 8 U.S.C. § 1446. After the examination, the offi cer makes a decision to grant or deny the application. To be

5 Prior to 2002, the Attorn ey General had dele gated his naturali zation authority to the Immigration and Naturali zation Service (“INS”). See 8 C.F.R. § 100.2 (1994). The Homeland Security Act of 2002, Pu b. L. No. 107–296, 116 Stat. 2135, abol ished the INS and transferred its naturalization author ity to the Bureau of C itizenship and Immig ration Services (now USCIS) within the Department of H omeland Security. Prior to 1990, § 1 421 provided that only courts had the power to grant or deny natu ralization applications. See 8 U.S.C. § 1421(a) (1952-1990).9 naturalized, an applicant must be found to be “a person of good moral character, attached to the principles of the Constitution of the United States, and well d isposed to the good order and happiness of the United States.” Id . § 1447(a). If no determination is made within 120 days of the examination, the applicant may request a hearing in distric t court, which “may either determine the matter or remand, with appropriate instructions.” Id . § 1447(b). If the application is denied, the applicant may re quest a hearing before another i mmigration officer. Id . § 1447(a). If denied again, the applicant is entitled to judi cial review b y a district court. Id . § 1421(c).
D. Naturalization Based on Military Service DOD has no role to play in deciding whether t o grant an applica tion for naturalization based on military service, but it mu st certify that an applican t has “served honorably” and, if separated, was “separated under honorable conditions.” See 8 U.S.C. § 1440(b)(3 ) (“service in the military, air or naval forces of the United States shall be proved by a duly authenticated certification from the executiv e department under which the app licant served or i s serving”); 8 U.S.C. § 1439(b)(3) (applican t under § 1439 must provide “a certified statement from the proper executive department for each pe riod of his service upon which he relies for the benefits of this section, clearly showing that s uch service was honorable and th at no discharges from service, including periods of service not relied upon by him for the ben efits of this section, were other than honorable (the certificate or certificates herein provided for shall be conclusive evidence of such service and discharge)”). To obtain that information, USCIS r equires applicants for natur alization whose eligibility rests on their military service to submit USCIS Form N-426 (“Re quest for Certification of Military or Naval Service”) (“N-426”). See 8 C.F.R. § 329.4; USCIS Policy Manual, Vol. 12, Part I, Ch. 5, § A (“An applicant filing for naturalization bas ed on one year of honorable military service during peacetime or honorable service during a designated period of hostility must10 complete and submit [Form N-400 and Form N-426].” (emphasis add ed)). The USCIS will not process an application for naturalization based on military service unless it is accompanied by a completed N-426. See USCIS Policy Manual, Vol. 12, Part I, Ch. 5, § A. From October 1, 2001, through fiscal year 2018, USCIS has natur alized 129,587 members of the military. See https://www.uscis.gov/military/military-naturalization-statist ics. 6 As of May 2017, the average USCIS pr ocessing time for all milit ary naturalizati on applications was approximately four mont hs from start to finish. See Nio v. U.S. Dep’t of Homeland Sec. , 385 F. Supp. 3d 44, 56 (D.D.C. 2019) (“Nio II ”).
II. FACTUAL BACKGROUND Prior to October 13, 2017, DOD had no formal policies or guidan ce that pertained to the certification of N-426s. What it did have, as discussed in det ail later, see infra Section II.A.1 (Analysis), were more general regulations whose purpose was to “facilitate” naturalization at basic training, see 32 C.F.R. § 94.4; DODI 5500.14, and Army and Navy personnel ma nuals that indicated that an N-426 could be certified after one day of ser vice. ( See Pls.’ SJ Mot. Exs. 9, 11- 13). Also, in 2009, the Army, in conjunction with USCIS, adopt ed a “Naturalization at Basic Training Initiative” in order to pr ovide expedited processing o f naturalization applications for noncitizen enlistees once the y arrived at basic training. See Kirwa v. U.S. Dep’t of Def. , 285 F. Supp. 3d 21, 29 (D.D.C. 2017) (“Kirwa I ”); Nio v. U.S. Dep’t of Homeland Sec. , 270 F. Supp. 3d 49, 55-56 (D.D.C. 2017) (“Nio I ”). Under this Initiative, an enlistee receiv ed an N-426 befor e or when he or she arrived at basi c training. Then, “USCIS conduct e[d] all naturaliz ation processing

6 Over the past 100 years, mor e than 760,000 noncitizens have en listed and obtained citizenship through military service. See Noncitizens in the U.S. Militar y, Migration Policy Institute P olicy Brief (May 2019) (available athttps://www.migrationpolicy.org/ research/noncitizens-usmilitary-national-security-concerns-recruitment-needs).11 including the capture of biometri cs, the naturalization intervi ew, and administration of the Oath of Allegiance on the military base.” Kirwa I , 285 F. Supp. 3d at 29; see Nio I , 270 F. Supp. 3d at 56. “The goal, which was generall y achieved, was for the natur alization process to be completed by the end of [basic training] ,” typically around 10 weeks. (A R 48 (7/7/17 Miller Decl. ¶ 9));
Kirwa I , 285 F. Supp. 3d at 29; Nio I , 270 F. Supp. 3d at 55-56. B etween 2009 and 2013, USCIS expanded the Initiative to the N avy, Air Force, and Marine Corp s. Kirwa I , 285 F. Supp. 3d at
29 n.9. The current litigation concerns the new N-426 policy that DOD a dopted on October 13, 2017, but the events leading up to its issuance can be traced b ack to 2008, when DOD instituted the MAVNI Pilot Program.
A. MAVNI Program In 2008, pursuant to 10 U.S.C. § 504( b)(2), the Secretary of De fense 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 in terest because they were “heal th care professionals” in certain specialties or possessed “critic al foreign language skills.” ( AR 46 (7/7/17 Miller Decl. ¶ 4).) Before 2016, MAVNI enlistees in the A rmy’s Selected Reserve (al ong with all other enlistees) could expect to ship to basic tr aining within approximately 180 days from the date of enlistment. Then, once they arrived at basi c training, they (along with all other noncitizen enlistees who wanted to naturalize), would be a ble to get a certified N-426 and apply for naturalization. (AR 48 (7/7/17 Miller Decl. ¶ 9)); see also Nio I , 270 F. Supp. 3d at 55. And, through the Naturalization at Basic Traini ng Initiative, MAVNIs (and other noncitizens who sought to naturalize) were usually able t o complete the naturalization pr ocess before they left basic training, i.e., within approximately 10 weeks. Id

.12 1. Enhanced Security Screening for MAVNIs and the September 30, 2016 DOD Memorandum) Since its inception, the MAVNI program has generated national s ecurity concerns within DOD. As a result, DOD has sought t o strengthen the security sc reening requirements for MAVNI enlistees to join the military. See Nio II , 385 F. Supp. 3d at 48-49 (providing detailed description of the evolution of the security screening requirem ents imposed on MAVNI enlistees); ( see also AR 50-51 (7/7/17 Miller Decl. ¶ ¶ 12-15)). The most signific ant change came on September 30, 2016, when DOD, citing national security concerns, issued a memorandum that provided that M AVNIs could not ship to basic tr aining until DOD’s enhanced security screening and its “military service suitability determ ination” (“MSSD”) 7 were completed. 8 ( See AR 114-122 (Sept. 30, 2016 DOD Memorandum).) 9
2. Effect of the September 30, 2016 DOD Memorandum on MAVNI Naturalization The September 30, 2016 DOD Memorandum substantially increased the time between

7 The requirements in the September 30, 2016 DOD Memorandum can be divided into two phases: the “investigatory phas e” and the ‘adjudicatory phase.” See Nio II , 385 F. Supp. 3d at 51-52. The investigatory phase incl udes the enhanced security screening, which generates information about the enlistee, w hile the adjudicatory phase is what DOD does with that information. Id . The adjudicatory phase has two steps. Id . First, based on the information gathered during the investigator y phase, DOD’s Central Adjudica tion Facility makes a “military service suitability recommendation” (“MSSR”). See id . The MSSR is provided to the military service (e.g. the Army), which t hen renders a final MSSD, based on the MSSR, and the service’s own needs. See id. at 52. 8 The September 30, 2016 DOD Memorandum “reinforced that MAVNI r ecruits [had to] complete four vetting requirement s to receive a[n] [MSSD]: (1) either a Tier 3 or Tier 5 background investigation (based on assessment of their counteri ntelligence risk profile, (2) a National Intelligence Agency Ch eck (NIAC), (3) a CI-focused sec urity review (CIFSR), and (4) an issue-oriented int erview and/or issue-o riented polygraph, if needed to resolve any foreign influence or foreign preference concerns.” (AR 33 (Decl. of St ephanie Miller, July 28, 2017) (“7/28/17 Miller Decl.”).)
9 Although the MAVNI program was for mally extended through Septe mber 30, 2017, in fact the program stopped accepting new recruits in June 2016. See Nio II , 385 F. Supp. 3d at 51 n.7.13 MAVNIs’ enlistment and their shipping to basic training. 10 See Nio II , 385 F. Supp. 3d at 52. That, in turn, caused considera ble delay, sometimes amounting t o several years, for a MAVNI to receive a certified N -426. In response, Reservists were unable to submit a naturalization application. MAVNIs who were in the Army Selected Reserve’s De layed Training Program (“DTP”), 11 however, were already serving becau se they were participating in drilling with their reserve unit while they waited f or their security screening andMSSD to be completed. See Nio , 385 F. Supp. 3d at 52. As the time to ship grew increasingly l engthy in late 2016 through mid2017, approximately 500 MAVNIs request ed and received certified N-426s based on their participation in at least one day of drilling. See id . at 53. With their N-426s in hand, these MAVNI Reservists were ready to f ile their applications for citi zenship. Id

. 3. USCIS’s July 7, 2017 Guidance When DOD learned in early 2017 tha t MAVNI Reservists were obtai ning N-426s before completing their enhanced securi ty screening, the DOD, in colla boration with USCIS, put a “hold,” in April 2017, on naturaliz ing the MAVNIs who had alrea dy obtained an N-426 but were still drilling in the DTP. See Nio II , 385 F. Supp. 3d at 53-56. Following the issuance of the “ hold,” USCIS adopted a guidance on July 7, 2017, that instructed USCIS personnel not t o allow a MAVNI naturalization applicant to proceed to interview until “al l enhanced DOD security checks are completed ” because “USCIS has determined that the completion of DOD background checks is rele vant to a MAVNI recruit’s

10 In October 2017, DOD’s estimated t ime for completing just one part of the enhanced security screening (the Tier 5 investig ation) was over 400 days. (AR 33 (7/28/17 Miller Decl.) (“MAVNI applicants’ completion of the Tier 5 background investigation [ took] on average 422 days during a period from 2014-2017.”)); see Kirwa I , 285 F. Supp. at 30.
11 The DTP “allows . . . members of the Selected Reserve to atten d drill periods for pay and benefits . . . during the period pr ior to assignment to initial military training (also known as basic training.” (AR 34 (7/28/ 17 Miller Decl.).)14 eligibility for naturalization,” s pecifically the requirements that an applicant demonstrate “good moral character and attachment to the U.S. Constitution.” Nio II , 385 F. Supp. 3d at 54. In addition to the “hold” on the na turalization of MAVNI Reserv ists, in the spring of 2017, DOD began a review of its N-426 “policy,” and while that review was proceeding, it stopped issuing certified N-426s t o MAVNI Reservists who were d rilling in the DTP, because it took the view that active duty ( i.e. basic training) was a nece ssary precondition to an honorable service determination. (AR 53 (7/7/17 Miller Decl. ¶ 19)); see also Kirwa I , 285 F. Supp. at 33;
Nio I , 270 F. Supp. 3d at 59. Then, on August 17, 2017, the Chief o f the Army Reserve issued a memorandum that stated: “Effec tive immediately, I withhold auth ority to certify the honorable service (N-426) of Soldiers w ho have not yet attended Initial E ntry Training (IET).” 12 Nio I , 270 F. Supp. 3d at 60. This order, which formally blocked the appr oximately 2,000 MAVNIs who had enlisted in the Army’s Select ed Reserve and were drilling i n the DTP from obtaining a certified N-426, prompted the filing of the Kirwa case. See Compl., Kirwa , ECF No. 1. But, before there was any substantive ruling in Kirwa , the Army’s August 17, 2017 memorandum was superseded by DOD’s N-426 Policy.
B. DOD’s October 13, 2017 N-426 Policy On October 13, 2017, DOD issued its f irst “formal guidance” per taining to the certification of N-426s (“N-426 Policy”). ( See AR 6-9.) The N-426 Policy applies to all noncitizen service members (LP Rs and MAVNIs) serving in Active Components (Army, Navy, Air Force, Marines, and Coast G uard) or the Selected Reserve. (AR 6.) Sections I and II establish the “criteria” that a service member must meet before an N-426 will be certified:

12 In the Army, Initial Entry Train ing includes both Basic Combat Training (“boot camp”) and Advanced Individual Training.15 Section I applies to individuals who enlisted or accessed after October 13, 2017; Section II applies to individuals who en listed or accessed before October 13, 2017. Section III provides for the revocation of previously issu ed N-426s under certain circum stances. 1. Section I

a. Minimum Service Requirements In this litigation, t he critical part of the N-426 Policy is fo und in Section I, paragraph 3, which sets out the “Military Tra ining and Required Service” cri teria that an individual who enlisted or accessed after October 13, 2017, must meet. Servic e members covered by Section I include LPRs and MAVNIS in Active Components and LPRs in the Se lected Reserve of the Ready Reserve (but not MAVNI Reservists since they enlisted and accessed before October 13, 2017). The purpose of these crite ria, as stated in the N-426 P olicy, is to ensure that the Service Member “has served in a capacity, for a period of time, and in a manner that permits an informed determination as to whether the member served honorably.” (AR 7.) There are two sets of criteria: one for “Service Members in an Active Component” (“A ctive Minimum Service Requirement) and one for “Service Members in the Selected Reser ve of the Ready Reserve” (“Reservist Minimum Service Re quirement”). The Active Minimum Service Requirement provides that a service member i n an Active Component can only obtain a certified N-426 if that service member has:

 Successfully completed the basic training requirements of the a rmed forces of which he/she is a member; AND

 Completed at least 180 consecutive days of active duty service, inclusive of the successful compl etion of basic training . . . . The Reservist Minimum Service Re quirement provides that a servi ce member in the Selected Reserve of the Ready Reserve c an only obtain a certified N-426 if that service member has:

 Successfully completed the basic training requirements of the a rmed16 forces of which he/she is a member; AND

 Completed at least one year of s atisfactory service toward non- regular retirement in accordance with [ DODI] 1215.07, “Service Credit for NonRegular Retirement,” as a member of the Selected Reserve, inclu sive of the member’s successful completion of basic training . . . . The minimum time-in-service requirements for all service member s and the imposition of an active duty requirement for Reservists are the focus of this li tigation.
b. Screening and Suitability Requirements Section I, paragraph 2, of the N- 426 Policy provides that servi ce members must “complete[] applicable screening a nd suitability requirements” before they can obtain a certified N-426. Those requirements are di fferent for MAVNIs and LPRs. MAVNIs must: [be] the subject of a completed N ational Intelligence Agency Ch eck (NIAC); Tier 3 or Tier 5 Background Investigatio n, as applicable; counterint elligence-focused security review; counterintellig ence interview; and a[n] [MSSD] , favorably adjudicated in accordance with the 9/30/2016 DOD Memorandum] a nd OUSD(P&R) memorandum of October 13, 2017, Military Accessions V ital to the National Interest Pilot Program. 13
LPRs must: have met prescribed screening re quirements set forth in Departm ent of Defense Instruction 1304.26, “Qua lification Standards for Enlistment, Appointment and Induction,” and other applicable D oD or Military Department pol icy, and are the subject of a favorab ly adjudicated MSSD . . . . However, for several reasons, t hese screening and suitability r equirements are no longer impacting any class member’s ability to obtain an N-426. Thus, plaintiffs are not challenging them in this case. 14

13 The October 13, 2017 MAVNI memorandum includes “supplemental p olicy guidance regarding the management of Service members accessed through th e MAVNI Pilot Program.” (AR 12-14.)
14 As noted supra , the only MAVNIs covered by Section I have enlisted in Active Components. And MAVNIS, first under the September 30, 2016 DOD Memorandum a nd now by statute, see 10 U.S.C. § 504(b)(3)(A), may not ship to basic training until they have completed these same17 2. Section II Section II of the N-426 Policy a pplies to service members who e nlisted or accessed before October 13, 2017 (which incl udes all MAVNI Reservists). Section II differs from Section I only with respect to “Militar y Training and Required Service, ” because it imposes no specific requirements as to the time or manner of service 15 (i.e. no active duty requirement and no minimum time-in-service requirement). 16

screening and suitability re quirements. Thus, MAVNIs will nece ssarily have completed all the N-426 screening and suitability requirements before they have s erved for even a single day, i.e., before they could ever be elig ible for an N-426. As a result, plaintiffs do not challenge the screening and suitability re quirements for active MAVNIs. With respect to LPRs, the scree ning and suitability requirement s in the N-426 policy are no longer being enforced by DOD due t o a series of events related to these same requirements in an independent DOD policy. Briefly, o n the same day it issued the N-426 Policy, DOD issued another policy that required LPR s, for the first time, to compl ete security screening and have a favorable MSSD before shipping t o basic training. (AR 10-11 (“ LPR Screening/MSSD Policy”). The delays in ship dates caused by t he LPR Screening/MSSD Polic y (which led to delays in LPRs ability to apply for naturalization) led to litigation. A n APA challenge to enjoin this policy was initially successful, but the Ninth Circuit reversed. See Kuang v. U.S. Dep’t of Def. , 340 F. Supp. 3d 873, 890 (N.D. Cal. 2018), vacated and remanded , 778 F. App’x 418 (9th Cir. 2019). DOD, however, then opte d not to resume enforcement of the LPR S creening/MSSD Policy, replacing it as of July 30, 2019, with a new “Expedited Screeni ng Protocol” (“ESP”). ( See Defs.’ Supp. Br. Ex. 3, July 1, 2020, ECF No. 32-3 (“Defs.’ 7/1 /20 Supp. Br.”).) The ESP must be initiated, but not completed, b efore a recruit can ship basi c training. ( Id .) DOD has thus stopped requiring that LPRs (bot h Actives and Reservists) compl ete any security screening or have a favorable MSSD t o obtain a certified N-426. ( See Defs.’ 7/1/20 Supp. Br. at 3; Defs.’ Supp. Br. at 8, July 10, 2020, ECF N o. 34.) Since there is no requirement that LPRs must complete any type of security scr eening or suitability determin ation to obtain an N-426, plaintiff abandoned this claim as well. ( See Hr’g Tr. at 9, July 16, 2020, ECF No. 37 (“7/16/20 Tr.”).)
15 The full text of Section II.3 reads: Military Training and Required S ervice: The Service Member has served in a capacity, for a period of time, a nd in a manner that permits aninformed determination that the member has served honorably as a member of the Selected Reserve of the Ready Reserve or m ember of an active component o f a military or naval force of the United State s, as determined by the Secretar y of the Military Department concerned. (AR 8.)
16 As discussed further infra , the Kirwa case concerned the “applicab le screening and suitability18 3. Section III Section III provides for the revocation of already issued N-426 s if the service member accessed prior to October 13, 2017, had submitted a naturalizat ion application to USCIS that had not yet been granted, and the ser vice member had not completed all applicable security and screening requirements imposed by the July 7 Guidance. 17 ( See AR 9.)
4. The O-6 Requirement Finally, the N-426 Policy provides that certifications must be made either by “the Secretary of the Military Depart ment concerned” or, if delegate d by the Secretary, “a commissioned officer serving in the pay grade of O-6 or higher” (“O-6 Requirement”). (AR 6.) But on April 24, 2020, DOD issued an update to the N-426 Policythat provides: “Upon receipt from a qualified applicant of [ USCIS] Form N-426, ‘Request for Certification of Military or Naval Service,’ the certifying o fficial will process it with pr iority and return it to the Service member concerned within 30-days of submission.” 18 (AR 1.) As represented by defense counsel,”[a]ccording to official s within DOD’s Office of the Un der Secretary for Personnel and Readiness, the 30-day time pe riod contemplated by the April 24, 2020 policy update begins

requirements” that applied to M AVNI Reservists under Section II

. 17 As discussed further infra , the Nio case addressed Section III.
18 DOD issued its update in response to a directive in the Nation al Defense Author ization Act for Fiscal Year 2020 (“2020 NDAA”) , which provides that the: Secretary of Defense shall publis h regulations for submission a nd processing of a completed United State s Citizenship and Immigration Services Fo rm N-426, by a member of the Armed Forces. Suc h regulations shall designate t he appropriate level for the certifying officer a s well as establish time requ irements for the form to be returned to the membe r of the Armed Forces. 133 Stat. 1198, 1356 (2019) (codifi ed at 10 U.S.C. § 1781, Note ).19 when the first person in the chain of command receives the N-42 6 request.” (Defs.’ Supp. Br. at 1, July 28, 2020, ECF No. 42 (“Defs.’ 7/28/20 Supp. Br.”).) Plaintiffs sought to challenge the O-6 requirement as causing d elay in the processing of N-426 requests, but as explained in this Court’s opinion on cla ss certification, in light of the April 24, 2020 update, there is no nam ed plaintiff with standin g to challenge the O-6 Requirement. See Samma , 2020 WL 4501000, at *5-6. Accordingl y, those claims have bee n dismissed.
III. MAVNI-RELATED LITIGATION Section I of the N-426 Policy, a s it applies to active duty MAV NIs and LPRs and to LPR Reservists, is at issue in Samma . But before the Court can address Samma , it must again detour to further explain its rulings in Kirwa , which challenged DOD’s refusal to grant N-426s to MAVNI Reservists under Section II of the N-426 Policy, and in Nio , which challenged DOD’s policy of revoking the N-426s give n to the MAVNI Reservists und er Section III, and USCIS’s refusal, as set forth in the July 7, 2017 Guidance, to process a naturalization a pplication unless the MAVNI had completed both the security screening during the investigatory stage and the suitability or MSSD determinati on made during the adjudicatory phase. See supra n.7.
A. Kirwa The Kirwa plaintiffs were MAVNI Reservist s who had been dri lling in the DTP while they waited to ship to basi c training. They had sought but hadbeen unable to obtain certified N426s. They filed suit in September 2017, after the Army’s Augu st 17, 2017 Memorandum formally ordered that no N-426s w ould be issued before a reserv ist started basic training, and they challenged that policy as unlawfully imposing an active du ty requirement in contravention of § 1440. (Compl., Kirwa , ECF No. 1.) They also filed a mo tion for a preliminary injun ction. The Court initially collapsed t he motion for a preliminary inju nction with a hearing on the merits20 because the sole issue was an issue of law: did the imposition of an active duty requirement to obtain a certification of honorable service for individuals ser ving in the Selected Reserve contravene § 1440? Shortly befor e that issue could be fully br iefed, DOD abruptly changed gears and issued the Octob er 13, 2017 N-426 Policy. Section II of that policy applied to the
Kirwa plaintiffs. Contrary to prior representations by DOD, the pol icy did not include an active duty requirement.” ( See AR 8); see also Kirwa I , 285 F. Supp. 3d at 34. In light of DOD’s sudden change in position, the Cour t had to reverse course and proceeded with a hearing on the motion for a preliminary injunction. Kirwa I , 285 F. Supp. 3d at 34-35. The Court concluded that plai ntiffs were likely to succeed on their claim that the security screening and suitability requi rements in Section II for issuan ce of an N-426 are arbitrary and capricious in violation of § 706(2 )(A) of the APA because “DOD ha[d] given no reasoned justification why certifying a form N–426 for immigration and n aturalization purposes implicates our national security.” Id . at 39. The Court also found that the plaintiffs were likely to succeed on their claim that Section II vi olated § 706(1) of the APA bec ause DOD had a duty to certify N426s based on existing service records. Id . at 41-42. Accordingly, t he Court issued a preliminary injunction enjoining the application of Section II of the N-426 Policy to a provisionally-certified class of MAVNIs who were drilling in th e Selected Reserve’s DTP and had not received a c ertified N-426. Id . at 21. Specifically, DOD was enjoined from “refusing to sign and issue Form N-426s to members of the Selected Reserve p ursuant to Section II of DOD’s October 13, 2017 Guidance,” and from “refusing to certify MAVNI enlistees who have served for one day or more in the Selec ted Reserve as having honorable service, except as related to the conduct of an individual plaintiff or class member as reflected in that soldier’s s ervice record and based on sufficient grounds generally applicable to all members of the military.” Amended21 Order at 1, Kirwa , ECF No. 32. It also ordered that “after members of the provi sionally-certified class submit or resubmit N-426s to their military officer ranke d O6 or higher, defendants should use their best efforts to certi fy or deny Form N-426s, as was d one for the Nio plaintiffs, within two business days of receipt of Form N-426.” Id . at 1-2. Further, the Court granted plaintiffs’ unopposed motion for class certif ication, certifying a class th at “consists of all persons who (1) have enlisted in the U.S. m ilitary through the Military Accessi ons Vital to the Na tional Interest (“MAVNI”) program prior to O ctober 13, 2017, (2) have served inthe Selected Reserve of the Ready Reserve (“Selected Reserve”), and (3) have not received acompleted and duly authenticated Form N-426.” Order, Kirwa , Dec. 1, 2017, ECF No. 48. The Court then denied defendants’ motion to dismiss plaintiffs’ APA claims. Kirwa II , 285 F. Supp. 3d 257, 266-68 (D.D.C. 2018) (“Kirwa II ”). Defendants have not appeal ed the preliminary injunction. Over the last three years, 1695 N -426s have been requested and issued. See Status Report, Kirwa , July 24, 2020, ECF No. 230. Only ten ha ve been requested and issued in the last eight months. See id. ; Status Report, Kirwa, J an. 2, 2020, ECF No. 201. Generally, DOD has been able to comply with a two -day turnaround from submission o f the N-426 to return, see id .; see also Defs.’ Opp’n to Pls.’ Mot. to Enforce Court Order Ex. J, Kirwa , Nov. 29, 2017, ECF No. 41 (describing how DOD will achi eve 2-day turnaround ordere d by Court), and once a
Kirwa class member receives a certif ied N-426, he/she becomes part o f the Nio class.
B. Nio The plaintiffs in Nio were MAVNI Reservists who ha d obtained certified N-426s based on one or more days of drilling w hile in the DTP and who had fi led applications for naturalization, but whos e applications wer e not being processed by USCIS due to the informal “hold” agreed to by USCIS at DOD’ s request, pending DOD’s compl etion of its security screening and suitability deter minations. They filed suit in M ay 2017 against DOD and22 DHS/USCIS, challenging the hol d, on their own behalf and on beh alf of a putative class. See Compl. Nio , ECF No. 1. Then, USCIS issued t he July 7 Guidance, causing p laintiffs to amend their complaint and their mo tion for a preliminary injunction t o challenge that Guidance. They also added a challenge to DOD’s ongoing review of its N-426 “po licy” and what appeared to be its current position th at active duty was required to be eligib le for a certified N-426. Nio I , 270 F. Supp. at 61. The Court denied plaintiffs’ motion for a preliminary injunctio n, finding that DOD’s review of its N-426 policy did not po se an imminent threat of h arm to the plaintiffs and that they were not likely to succeed on the m erits of their claim that US CIS’s July 7 Guidance was arbitrary and capricious in lig ht of the national security conc erns that had motivated its adoption.
See id. at 62-65. Thereafter, DOD issued its N- 426 Policy, including Section III which required the revocation of N-426s issued to i ndividuals who had not yet comp leted DOD’s enhanced security screening and suitabil ity determinations. The Nio plaintiffs again amende d their complaint to add a challenge to Section III, and they filed a new motion for a preliminary injunction against
DOD. On October 27, 2017, the Court gran ted plaintiffs’ motion for c lass certification, certifying a class to challenge ( 1) DHS’s/USCIS’s decision in t he July 7 Guidance to await DOD’s completion of the enhance d security screening of MAVNI en listees; and (2) DOD’s adoption of Section III. See Nio v. U.S. Dep’t of Homeland Sec. , 323 F.R.D. 28, 30 (D.D.C. 2017). 19 The Court also granted the mo tion for a preliminary injunctio n as to Section III, for the

19 The certified class in Nio consists of all persons who have ( i) enlisted in the Selected R eserve through the MAVNI program prior to October 13, 2017; (ii) served honorably with a Selected23 same reasons it enjoined the application of Section II in Kirwa

. See Order, Nio , Oct. 27, 2017, ECF No. 74. As with the pr eliminary injunction in Kirwa , the defendants in Nio did not appeal. As for the Nio plaintiffs’ remaining challenge to the USCIS’s July 7 Guidance , on May 22, 2019, the Court granted partial summary judgment to the pla intiffs, concluding that the July 7 Guidance was arbitrary and capricious to the extent it required USCIS to wait for DOD to issue an MSSD because “USCIS’s purport ed reasons for waiting for thes e military suitability adjudications do not comport with the evidence before the Court .” Nio II , 385 F. Supp. 3d at 47. Specifically, the Court found tha t USCIS could not wait for DOD ’s MSSD because the adjudicatory phase of DOD’s pro cess did not generate any new in formation that would be relevant to USCIS’s decision on w hether an applicant satisfied the requirements for naturalization. See id . at 67. Moreover, not on ly did the adjudi catory process not r ender any relevant information, if an en listee received a n unfavorable MS SD before completing 180 days of service, he or she necessar ily received an uncharacterized d ischarge, 20 and USCIS automatically rejected these a pplicants as not h aving received an honorable discharge and thus

Reserve unit through participat ion in at least one qualifying d rill period or served in an active-duty status; (iii) submitted N-400 Applications fo r Naturalization; (iv) been issued Form N-426s certify ing honorable service as a membe r of the Selected Reserve or in active- duty status; and (v) have had the processing or final adjudication of their naturali zation applications (including na turalization itself) withheld or delayed because of ( a) a final USCIS processing hol d for MAVNIs, (b) a DOD N-426 policy review, (c) a DOD N-426 recall/decertifi cation policy, (d) enhanced DOD security screeni ngs, (e) a DOD CAF adjudicatio n, (f) a national security determinati on, and/or (g) military service su itability vetting determination. Order, Nio , Oct. 27, 2017, ECF No. 72. 20 In the military, a service member remains in “entry-level” sta tus until he or she has completed basic training and served for 180 days. See Nio II , 385 F. Supp. at 64. If a soldier is discharged from entry-level status, the di scharge is not characterized as honorable or othe r than honorable, but rather by the neutral “unc haracterized” classification. Id.24 ineligible for naturalization. Id . at 64-65. Given this scenario, the Court concluded that USCI S had abdicated its statutory dut y to “conduct its own investigat ion of eligible applicants, as required by 8 U.S.C. § 1446(b),” and “to independently assess [ their ] good moral character or attachment to the Constitution.” Id . at 67-68. Accordingly, the Court vacated the MSSD portion of the July 7 Guidance, id . at 69, and it ordered defenda nts to file periodic reports on the status of the naturalization app lications filed by Nio class members. See Order, Nio , ECF No. 259. At the time Nio was filed, there were an est imated 2,400 MAVNI Reservists in t he Army’s DTP. See Nio II , 385 F. Supp. 3d at 53. As of July 27, 2020, 1957 members of the Nio class have been naturalized, 1217 of t hem since the Court’s rul ing on May 22, 2019. See Status Report at 2, Nio , ECF No. 301. Currently, there ar e only 68 class members withpending naturalization applications, 21 26 of whom have already been int erviewed by USCIS and 5 of whom have interviews scheduled. Id . at 2-3. 22 On August 20, 2020, the Court entered final judgment in favor of the Nio plaintiffs. See Judgment, Nio , ECF No 307.

21 Of the 68 pending applications , 36 were filed prior to August 1, 2019, and 32 were filed after August 1, 2019. Status Report at 2-3, Nio , ECF No. 301. Of the 36 applications that were pending prior to August 1, 2019, all but 11 have either been in terviewed or been s cheduled for an interview. Id

. 22 Two other MAVNI cases on this Cour t’s docket merit brief menti on. First, there is Calixto , which was filed by a putative clas s of MAVNIs who had been disc harged from the Army, either from the Army’s Delayed Entry P rogram or the Selected Reserve’s DTP, due to unfavorable MSSDs. Calixto v. United States Dep’t of the Army , No. 18-cv-1551, 2019 WL 2139755, at *1 (D.D.C. May 16, 2019). The Calixto plaintiffs sued the Departmen t of the Army, claiming that when they were discharged, the Army violated Army and DOD regul ations, as well as the soldiers’ procedural due process rights. Id . at *1. The last case is Miriyeva , which was filed by MAVNIs whose a pplications for naturalizati on had been denied because they had received “uncharacterized” dischar ges, which USCIS viewed as not having been “separated under honorable conditions.” Miriyeva v. U.S. Citizenship & Immigration Servs. , 436 F. Supp. 3d 170, 173 (D.D.C. 2019). The plaintiffs chall enged USCIS’s “policy” under the APA and the Constitution. Id . The Court granted d efendants’ motion to dismiss for lack of jurisdi ction on the ground that 8 U.S.C. § 1421, which provides for judicial review of the denial of a naturalization applic ation, precluded the plaintiffs’ claims. Id . The25 IV. SAMMA’S PROCEDURAL HISTORY On April 28, 2020, six individuals who are noncitizens currentl y serving in the United States Armed Forces, on their own behalf and on behalf of a put ative class, sued DOD and its Secretary, Mark Esper, claiming that the N-426 Policy was unlaw fully preventing them from obtaining certified N-426s and s ubmitting applications for naturalization. ( See Compl., ECF No. 1.) Plaintiffs brought claims unde r the APA, challenging the N -426 Policy as arbitrary and capricious, see 5 U.S.C. § 706(2)(A); not in accor dance with law, 5 U.S.C. § 7 06(2(A); in excess of statutory jurisdiction, see 5 U.S.C. § 706(2)(C); results i n unlawfully withheld and unreasonably delayed agency action, see 5 U.S.C. § 706(1); and was ena cted without notice and comment, see 5 U.S.C. § 553; 5 U.S.C. § 706(2)(D) . With their complaint, p laintiffs filed a motion for preliminary injunction, w hich was converted into a m otion for summary judgment, and a motion for class certification. As detailed in the Court’s class certification opinion, Samma , 2020 WL 4501000, at *2- *3, plaintiffs subsequently clari fied their claims and limited them to Section I and to their challenge to the O-6 Requirement and the Minimum Service Requir ements. 23 During the course of briefing, defenda nts reported that since the complaint was originally filed, five of the six named pl aintiffs had received N-426s, re ndering their claims moot, and leaving Ahmad Isiaka 24 as the only named plaintiff with a live claim. Samma , 2020 WL

plaintiffs’ appeal is pendi ng before the D.C. Circuit.
23 As noted, plaintiffs initially c onsidered a challenge to the s ecurity screening and suitability requirements, but they ultimately abandoned that attack once it became apparent, as previously explained, see supra n.14, that those requirements we re not impeding their ability to obtain a certified N-426. Id

. 24 Isiaka is an LPR who enlisted i n the Selected Reserve of the U .S. Army Reserve in January 2020. (Am. Compl. ¶ 21.) He began drilling in February 2020, and he was scheduled to ship to basic training on August 3, 2020. ( Id . ¶ ¶ 21, 105, 106.)26 4501000, at *3. Plaintiffs then ame nded their complaint on Jun e 8, 2020, adding two new plaintiffs, Timotius Gunawan 25 and Rafael Leal Machado, 26 neither of whom had met the Minimum Service Requirements or had received a certified N-426. On July 16, 2020, the Court held argument on the motion for c lass certification and the cross-motions for summary judgmen t. After the argument, plaint iffs learned that Isiaka had received a certified N -426 on July 21, 2020, even though he had not yet satisfied the Reservist Minimum Service Requirements. Samma , 2020 WL 4501000, at *7. Defenda nts advised the Court that Isiaka had receiv ed an N-426 in error, signed by a c ommander who was “unaware of the N-426 policy,” but that the Army did not intend to revoke i t and that their position is that Isiaka cannot represent the Re servist subclass because his clai m is now moot. (Defs.’ 7/28/20 Supp. Br. at 4.) On July 29, 2020, G unawan, in another apparen t error because he had not yet met the Active Minimum Service Requirements, received a certifi ed N-426. ( See Pls.’ Notice Regarding Pl. Timotius Gunawan, July 31, 2020, ECF No. 43.) On August 4, 2020, the Court grante d plaintiffs’ motion for cl ass certification in part.
Samma , 2020 WL 4501000, at *10. The Court concluded that (1) no pla intiff had standing to challenge the O-6 Requirement; (2 ) the claims of the five plain tiffs who received their N-426s before the filing of the amende d complaint should be dismissed as moot; and (3) even though Isiaka and Machado received certi fied N-426s before the Court i ssued its ruling on class certification, the “relation-b ack” doctrine should be applied, allowing them to be appointed as

25 Gunawan is an LPR who enliste d in the U.S. Navy in November 20 19. (Am. Compl. ¶ 25.) He shipped to basic training i n February 2020, and he is curren tly serving on active duty. ( Id

. ¶ ¶ 25, 130, 131.)
26 Machado is an LPR who enlisted i n the U.S. Air Force in Octobe r 2019. (Am. Compl. ¶ ¶ 26.) He shipped to basi c training in January 2020, and he is currently servi ng on active duty. ( Id . ¶ ¶ 26, 137, 138.)27 class representatives even though t heir individual claims are t echnically moot. 27 Id . at *5-7. The Court certified two subclasses: one to challenge the Active Min imum Service Requirement, represented by Gunawan and Macha do, and one to challenge the Re servist Minimum Service Requirement, represented by Isiaka. Id . at *10. Plaintiffs’ counsel ha ve been appointed as Class Counsel. Id

. The issue now before the Court is whether DOD’s Minimum Service Requirements violate the APA. There are tw o such requirements under SectionI of the N-426 Policy: (1) The Active Minimum Service Requirement provides that MAVNIs and LPRs who serve in an Active Componentmust complete at least 180 con secutive days of active duty service, inclusive of the successful completion of basic training, before they can obtain an N-426. (2) The Reservist Minimum Serv ice Requirement provides that LPR Reservists must complete at least one year of satisfactory service toward non-regular retirement in accordance with [ DODI] 1215.07, “Service Credit f or Non-Regular Retirement,” as a member of the Selected Reserve, inclusive of the member’s successful completion of basic training, before they can obtainan N-426. (AR 7-8.)
ANALYSIS Plaintiffs claim that the Minimu m Service Requirements in the N -426 Policy violate the

27 The Court certified a class cons isting of “all individuals who : (a) are noncitizen s serving in the U.S. military; (b) are subject to Section I of the October 13, 2017 N-426 Policy (AR 6) (“N-426 Policy”), as updated by DOD’s April 24, 2020 Memorandum (AR 1); (c) have not received a certified N-426; and (d) are not S elected Reserve MAVNIs in the class certified in Kirwa v. U.S. Dep’t of Defense , No. 17-cv-1793 (D.D.C. Dec. 1, 2017).” (Order, Aug. 4, 2020, ECF No. 44.) The certified class is divided i nto an “Active Subclass” and a “Reservist Subclass.” The Active Subclass includes all individua ls in the Class who are noncitiz ens serving in an Active Component of the U.S. military a nd have not satisfied the Activ e Minimum Service Requirements in Section I.3.a of the N-426 Policy. The Reservi st Subclass includes all individuals in the Cla ss who are lawful permanent residents (LP Rs) serving in the Selected Reserve of the Ready Reserve and h ave not satisfied the Reservi st Minimum Service Requirements in Section I.3.b of t he N-426 Policy, excluding th e plaintiff in Kotab v. U.S. Dep’t of the Air Force , No. 2:18-cv-2031, 2019 WL 4677020 ( D. Nev. Sept. 25, 2019).28 APA. Defendants disa gree, arguing first th at the N-426 Policy is not subject to APA review because it concerns matters that are “committed to agency discr etion by law,” or, in the alternative, if the N-426 Polic y is reviewable, none of plainti ffs’ APA claims have merit. The Court will first address revi ewability and then, because it con cludes that the challenged agency action is reviewable, turn t o plaintiffs’ APA claims. 28
I. REVIEWABILITY The APA provides that “[a] pe rson suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the mea ning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. The Sup reme Court has long interpreted the APA as embodying a “ basic presum ption of judicial review.” Abbott Laboratories v. Gardner , 387 U.S. 136, 140 (1967); Dep’t of Homeland Sec. v. Regents of the Univ. of California , 140 S. Ct. 1891, 1905 (2020). “The presumption may be rebutted only i f the relevant statute ‘preclude[s] review,’ 5 U.S.C. § 701( a)(1), or if the action is ‘committed to agency discretion by law,’ § 701(a)(2).” Weyerhaeuser v. U.S. Fish & Wildlife Serv. , 139 S. Ct. 361, 370 (2018). Defendants argue that plaintiffs cannot cha llenge the N-426 pol icy under the APA because it is an agency action that is committed to agency disc retion by law. 29 As defendants recognize, this Court has reject ed this argument on two prior o ccasions. See Kirwa I , 285 F.

28 Federal Rule of Civil Procedur e 56(a) requires a court to gran t summary judgment “if the movant shows that there is no ge nuine dispute as to any materia l fact and the movant is entitled to judgment as a matter of law ”; however, the summary judgment standard functions differently in APA cases “because of the limited role of a court in reviewi ng the administrative record.” Zevallos v. Obama , 10 F. Supp. 3d 111, 117 (D.D.C. 2014) (citation and internal quotation marks omitted). In those cases, a court employs summary judgment to “determin[e] whether, as a matter of law, an agency action is supported by the administrat ive record and is consistent with the APA.” Animal Legal Def. Fund, Inc. v. Vilsack , 237 F. Supp. 3d 15, 20 (D.D.C. 2017).
29 In Kirwa , defendants also argued that th e N-426 policy was unreviewable under § 706(a)(1) because the relevant statute, 8 U.S.C § 1440, “precludes review ,” see Kirwa I , 285 F. Supp. at 35; Kirwa II , 285 F. Supp. at 266, but they do not pr ess that argument here

.29 Supp. 3d at 35-39 (D.D.C. 2017); Kirwa II , 285 F. Supp. 3d at 266-68. But de fendants urge the Court to reconsider its conclu sion, noting in particular that another district court has since reached the opposite conclusion, see Kotab v. U.S. Dep’t of the Air Force , No. 2:18-cv-2031, 2019 WL 4677020 (D. Nev. Sept. 25, 2019), and that the Ninth Ci rcuit has concluded that DOD’s LPR Screening/MSSD Policy, see supra note 14, is unreviewable. See Kuang v. U.S. Dep’t of Defense , 778 F. App’x 418 (9th Cir. 2019). The Court has reexamined t he issue. But in the end, it reaches the same c onclusion—the N-426 Policy is rev iewable under the APA. To “honor the presumption of review , [the Supreme Court] ha[s] read the exception in § 701(a)(2) quite narrowly.” Weyerhaeuser , 139 S. Ct. at 370. First , § 706(a)(2) has been applied to “certain categories of administrative decisions that courts traditiona lly have regarded as committed to agency discretion.” Lincoln v. Vigil , 508 U.S. 182, 191 (1993) (internal quotation marks omitted); see Dep’t of Commerce v. New York , 139 S. Ct. 2551, 2568 (2019). Second, § 706(a)(2) has also been app lied in “those rare circum stances where the relevant statute is drawn so that a court would ha ve no meaningful standard agai nst which to judge the agency’s exercise of discretion.” Lincoln v. Vigil , 508 U.S. at 191 (internal quotation marks omitted); see Dep’t of Commerce v. New York , 139 S. Ct. at 2568. Defendants first argue that the administrative decision at issu e—which they define as the “certification of a service membe r’s service as honorable”—is t he type of decision “to which courts have routinely deferred” because it requires “military e xpertise” or “military judgment.” (Defs.’ SJ Mot. at 17-18 (“the military characterizes service t o ensure proper military discipline and control” and “determinations requiring military expertise a re not proper subjects of judicial intervention”).) To s upport their argument, defendants rely oncases where courts have refused to review the military’s characterization of service upon disch arge, see Patterson v. Lamb , 32930 U.S. 539, 540-41 (1947); Davis v. Woodring , 111 F.2d 523, 525 (D.C. Cir. 1940), and cases where courts have refused to review other types of military dec isions, see, e.g. , Dist. No. 1, Pac. Coast Dist., Marine Eng’rs’ Bene ficial Ass’n v. Mar. Admin ., 215 F.3d 37, 41–42 (D.C. Cir. 2000) (declining to review military’s decisions about base clos ures and realignments given that “the primary factors driving the . . . decision are national de fense, the adequacy of the merchant marine, foreign policy, and the national interest”); Orloff v. Willoughby , 345 U.S. 83, 92 (1953) (no judicial review of military’ s duty assignments because “jud ges are not given the task of running the Army”). Defendants’ reliance on these tw o lines of caselaw is misplaced . First, as discussed further herein, see infra Section II.A.1.c (Analysis), the re is a critical distinction b etween a characterization of service for purposes of discharge—which imp licates the “internal management” of the military, see Davis , 111 F.2d at 525—and a character ization of service for purposes of naturalization, w hich does not. Second, unlike Dist. No. 1 and Orloff , this case does not involve a military decision that affects military operation s and thus indisputably requires military expertise. Rather, the administrative decision at iss ue concerns the military’s obligation to certify whether a service memb er is serving or has served ho norably for purpose of establishing that member’s eli gibility for na turalization under § 1440. Moreover, the actual administrative decision at issue is not DOD’s decision as to an y individual service member, but rather its decision to adopt the N-426 Policy and, as part of t hat policy, to impose Minimum Service Requirements as a precondition to making any decision a s to whether an individual has served honorably. Properly describe d, the administrative decis ion here is a DOD policy that interprets an immigration statute, not a decision that requires military expertise or judgment.31 Nor is the decision similar in a ny way to the categories of dec isions that have previously been recognized as traditionally committed to agency discretion

. See, e.g ., Heckler v. Chaney , 470 U.S. 821, 831-32 (1985) (a deci sion not to institute enforc ement proceedings); Webster v.
Doe , 486 U.S. 592, 600-01 (1988) (a decisi on by an intelligence ag ency to terminate an employee in the interest of national security); Lincoln v. Vigil , 508 U.S. at 191-92 (the allocation of funds from a lump-sum appropr iation). Two recent Supreme Co urt decisions have confirmed the limited nature of this exception. See Dep’t of Commerce v. New York , 139 S. Ct. at 2568 (“The taking of the census is notone of those areas traditiona lly committed to agency discretion.”); Dep’t of Homeland Sec. v. Rege nts of the Univ. of California , 140 S. Ct. at 1907 (“Because the DACA program is mo re than a non-enforcement polic y, its rescission is subject to review under the APA.”). As the Court observed in Kirwa , “while courts should exercise caution when adjudicating claims involvi ng matters of military affairs and national securi ty, that caution does not give DOD carte blanche au thority to act in contraventi on of . . . applicable s tatutes.”
Kirwa II , 285 F. Supp. 3d at 265–66. Where, a s here, the challenged po licy does not in fact “relat[e] to military discipline and military operations,” ther e is no reason to “defer to the judgment of those who must lea d our Armed Forces in battle.” North Dakota v. United States , 495 U.S. 423, 443 (1990) (no deference due to military’s interp retation of federal law allocating power between federal and state governments on civilian commerc ial issues). Accordingly, the Court concl udes that DOD’s N-426 Policy is notthe type of agency action that is unreviewable because it falls within a category of decisions that have traditionally been committed to a gency discretion. Defendants also argue that the N-426 Policy is un reviewable bec ause 8 U.S.C. § 1440 sets forth “no meaningful stand ard” by which to judge DOD’s det ermination as to whether a32 service member “ha[s] served honor ably.” (Defs.’ SJ Mot. at 16 (quoting 8 U.S.C. § 1440(a)).) Again, DOD’s premise is flawed. T he administrative action at i ssue is not simply a DOD policy that defines what constitutes honorable service, but a DOD poli cy that establishes preconditions that a service member must satisfy before DOD will even consider whether to certify that the individual has served honorabl y for purposes of applying for na turalization pursuant to § 1440. As the Court found in Kirwa , and as is apparent from the Cour t’s discussion later in this opinion,

see infra Section II.B (Analysis), th e language and structure of § 1440, and the broader statutory scheme for naturalization of which § 1440 is just one part, pro vide meaningful standards for reviewing that action. See Kirwa I , 285 F. Supp. 3d at 35-38. Finally, contrary to defendant s’ arguments, the decisions in Kotab and Kuang are not persuasive contrary authority. In Kuang , LPR service members brought suit to challenge the LPR Screening/MSSD Policy, which required LPRs to have a comple ted background investigation before they c ould ship to basic training. Kuang v. U.S. Dep’t of Def. , 340 F. Supp. 3d 873, 890 (N.D. Cal. 2018). The distri ct court preliminarilyenjoined the policy based on the plaintiffs’ APA claim that the policy was arbitrary and caprici ous. Id . at 919, 922. In reaching its conclusion, the district court rejected the argument that m ilitary considerati ons rendered the policy unreviewable or that the A PA claims were foreclosed because the agency action was committed to agency discretion by law. Id . at 895-99, 905-08. The Ninth Circuit reversed, holding that the LPR Screening/ MSSD Policy was not subject to a rbitrary and capricious review because it did not pass the four-factor Mindes test for reviewability of claims against the military. 30 See Kuang , 778 F. App’x at 421 (citing Mindes v. Seaman , 453 F.2d 197 (5th Cir.

30 Under the Mindes test, “[t]o assess whether a claim against the military is rev iewable,” a court must consider “(1) the nature a nd strength of the plaintiffs’ c laim, (2) the poten tial injury to the plaintiffs if review is refused, ( 3) the extent to which reviewwould interfere with military33 1971)). Thus, the Ninth Circuitdid not reach the question of whether judicial review would also have been precluded because the agency action was committed to agency discretion by law—the issue before this Court. And, a s defendants recognize, the D.C . Circuit has rejected the Mindes test. ( See Defs.’ SJ Mot. at 19 n.8.); see also Kreis v. Sec’y of Air Force , 866 F.2d 1508, 1512 (D.C. Cir. 1989)) (“The Mindes court’s four factor analysis, which . . . erroneously intertwi nes the concept of justic iability with the standards to be applied to the merits of [the] case.” (internal quotation marks omitted)). In addition, the policy at issue in Kuang is materially different from the N-426 Policy because the Kuang policy concerns when an enlistee can ship to basic training—a quintessential military decision relating to a DOD personnel matter. Thus, it is not surprising that the Ninth Circuit concluded that the LPR Screening/MSSD Policy falls with in that category of “military decisions about national security and personnel [that] are inhe rently sensitive and generally reserved to military discretion.” But the same cannot be said of the N-426 Policy, see supra pp. 29-31, so the ruling and discussion in Kuang provide no reason for this Cour t to alter its analysis.
In Kotab , the N-426 Policy was at issue, a nd the district court conclud ed that it was both unreviewable under Mindes and “committed to agency di scretion by law.” The Mindes test, as previously noted, has not been a dopted in this Circuit. As for whether the N-426 Policy is an agency decision committed to agency discretion by law, the Kotab court’s concluded that there is “no meaningful standard to evaluate either whether DoD should certify a soldier as having served honorably or when DoD should so certify.” 2019 WL 4677020, at *9. But the cour t’s explanation of its conclusion is entirely focused on the absenc e of a standard to judge whether

functions, and (4) the extent to which military discretion or e xpertise is involved.” Kuang , 778 F. App’x at 421.34 DOD should certify that an indivi dual has served honorably. Bu t that is not the critical issue here—the question is whether the re is a meaningful standard by which to judge when DOD should so certify. As explained supra , the Court finds a meani ngful standard in § 1440, in conjunction with the entire INA , for reviewing the DOD’s decisi on as to “when” it will determine whether an indivi dual has, or has not, served honorab ly. Accordingly, the Court finds t hat the N-426 Policy is not that rare agency action that is unreviewable because it is committed to agency discretion by la w. II. PLAINTIFFS’ APA CLAIMS The Court now turns to plaintiffs’ challenges to the Minimum Se rvice Requirements contained in Section I of the N-426 Policy. Plaintiffs claim that the Minimum Service Requirements violate the APA because they (1) are arbitrary and capricious, see 5 U.S.C. § 706(2)(A); (2) are contrary to law and in excess of statutoryjurisdiction, see 5 U.S.C. § 706(2)(A), (C); (3) result in a gency action unlawfully withhe ld and unreasonably delayed, see 5 U.S.C. § 706(1); and (4) were e nacted without notice and comm ent. See 5 U.S.C. § 553; 5 U.S.C. § 706(2)(D).
A. Arbitrary and Capricious An agency rule is arbitrary and capricious if the agency has relied on fact ors which Congress has not inte nded it to consider, entirely failed to consider an im portant aspect of the problem, offered an explanation for its decision tha t runs counter to the evidence before the agency, or is so implausible that it coul d not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co. (“ State Farm ”), 463 U.S. 29, 43 (1983). This standard requires anagency to “examine the relev ant data and articulate a satisfactory explanation for its action including a rational co nnection between the facts found and the choice made.” Id . (citation and internal quotation marks omitted); see also Am. Wild Horse35 Pres. Campaign v. Perdue , 873 F.3d 914, 923 (D.C. Cir. 2017) (“Th[ e arbitrary and capri cious] standard obligates the agency t o examine all relevant factors and record evidence, and to articulate a reasoned explanati on for its decision.”). The age ncy’s explanation must show “‘why it has exercised its discreti on in a given manner’” and “must b e ‘sufficient to enable [a court] to conclude that the [agency’s act ion] was the product of reasoned decisionmaking.’” OwnerOperator Indep. Drivers Ass’n, Inc. v. Fed. Motor Carrier Safety Admin. , 494 F.3d 188, 203 (D.C. Cir. 2007) (quoting State Farm , 463 U.S. at 48, 52). In addition, when an agency action marks a departure from past practice, “the agency must at a minimum acknowledge the change and offer a reasoned e xplanation for it.” Am. Wild Horse Pres. Campaign , 873 F.3d at 923; see also Lone Mountain Processi ng, Inc. v. Sec’y of
Labor , 709 F.3d 1161, 1164 (D.C. Cir. 2013) (“[A]n agency changing i ts course must supply a reasoned analysis indicating tha t prior policies and standards are being deliberately changed, not casually ignored. Failing to suppl y such analysis renders the agency’s action arbitrary and capricious.” (internal quotation marks and citation omitted)). While the obliga tion to explain a change does not require an agenc y to “always provide a more det ailed justification than what would suffice for a new policy c reated on a blank slate,” the a gency must at least “display awareness that it is changing pos ition” and “show that there ar e good reasons for the new policy.” Encino Motorcars, LLC v. Navarro , 136 S. Ct. 2117, 2125–26 (2016) (citation and internal quotation marks omitted). A court’s review of an agency act ion under this standard “is na rrow and a court is not to substitute its judgment for that of the agency.” State Farm , 463 U.S. at 43. However, its review still “must go beyond the agency’s procedures to include the su bstantive reasonableness of its decision,” and in so doing the court must make a “‘thorough, pr obing, in-depth review’ to36 determine if the agency has consid ered the relevant factors or committed a clear error of judgment.” James Madison Ltd. ex rel. Hecht v. Ludwig , 82 F.3d 1085, 1098 (D.C. Cir. 1996) (quoting Citizens to Preserve Overton Park v. Volpe , 401 U.S. 402, 415 (1971)). Plaintiffs claim that the N-426 P olicy is arbitrary and caprici ous because defendants failed to explain the change fr om “DoD’s longstanding practice of certifying honorable service based solely on whether non-citi zens have served honorably at t he time DoD completes their N426” to the Minimum Service Requi rements, which contain both a durational component and an active duty component. (Pls.’ SJMot. at 23.) Defendants cont est (1) plaintiffs’ view of DOD’s prior practice and (2) plaintiffs ’ claim that defendants have f ailed to provide a reasoned explanation for the N-426 Polic y. (Defs.’ SJ Mot. at 27-29; see also Defs.’ SJ Reply at 15-17.)
1. Prior Practice regarding N-426 C ertification for LPRs and MAVNI s The Court must first track defe ndants’ past practice of certify ing N-426s for noncitizen enlistees. As detailed below, thi s practice evolved starting w ith amendments made to § 1440.

a. 1968-1970 The 1968 amendment to § 1440 was passe d “to provide for the exp editious naturalization of aliens who have served in an ac tive-duty status in the Armed Forces of the United States during the Vietnam hostilities or during any other [future desi gnated period of hostility].” S. Rep. No. 90-1292, at 2 (1968) (Pls. ’ SJ Mot. Ex. 3, ECF No. 4-4 ). The Senate Judiciary Committee Report on that amendm ent states that, under § 1440, “ an alien or noncitizen national who has served honorably . . . may be naturalized without regard to . . . a waiting period

. . . . [T]he peacetime serviceman must have a minimum of 3 years’ serv ice[;] the wartime serviceman has no minimum required .” Id . at 4-5 (emphasis added).37 Consistent with this goal of expedited citizenship, in 1970 DOD established regulations and guidance that applied to “a n alien who serves honorably on active duty in the Armed Forces of the United States” during adesignated period of hostility a nd required that: each qualifying alien shall be adv ised of the liberalized natur alization provisions of [§ 1440], i.e., that the usual naturalization requirements c oncerning age, residence, physical presen ce, court jurisdiction and waiting periods are not applicable , and will be given appropriate assistance in processing his naturalizatio n application . . . . 32 C.F.R. 94.4(b)(2) (emphasis added); DOD Directive 5500.14, a t 4.2.1, 4.2.2. Both provisions also required that “[m]ilitar y basic training and orientation p rograms will include advice and assistance to interested aliens in completing and submitting th e application and other forms required to initiate naturalization proceedings.” 32 C.F.R. 94 .4(b)(2)(i); DOD Directive 5500.14, at 4.2.2.1. Thus, as early as 1970, DOD understood § 1440 to e stablish no minimum time-inservice for eligibil ity to naturalize, and DOD was committed to assisting noncitizen enlistees in completing and submitting their naturalization applications whi le at basic training. 31
b. 2003-2016 In 2003, Congress again broadene d the group of noncitizen servi ce members who could benefit from the INA’s expedite d naturalization p rovisions. Fi rst, Congress shortened the timein-service requirement of § 1439 f rom three years to one year. 117 Stat. 1691. Second, Congress extended the benefit of § 1440 to anyone “serv[ing] ho norably 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); see also 117 Stat. 1693. According to the C ongressional Record relatin g to the 2003 amendment, Senator Kenne dy, the co-sponsor of the legi slation, stated: Being a member of the Selected R eserves is nothing less than a continuing

31 Both provisions are still in e ffect today, although the DOD Di rective was canceled and reissued as the DODI in 2006. See DODI 5500.14, at 1.38 commitment to meet very demandin g standards, and they deserve r ecognition for their bravery and sacrifice. The amendment allows permanent re sident members of the Selected Reserves to expe dite their natura lization appli cations during war or military hostilities. 149 Cong. Rec. S7,280–83 (daily ed. June 4, 2003). Senator Cha mbliss echoed this sentiment: [T]he amendment provides a proc ess of immediate naturalization for our selected reserve Armed Forces serving durin g a time of hostility. In to day’s military, we rely heavily and strategically on ou r reservists, and it is onl y fair to extend this benefit to reserve as well as active duty personnel serving our country in a time of war. Id. at S7,283. Finally, Senat or Brownback stated: [T]he amendment remembers those courageous men and women who en sure that in times of war or hostility, our country is ready and our recr uiting needs are met, by saying that members of the Reserves or National Guard will h ave expedited naturalization during times of war or hostile military operatio ns. Id. Thus, beginning in 2003, § 1440 offered t he same path to expedi ted naturalization to both LPR Reservists and LPRs serving in an Active Component. 32 USCIS understood this amendment to “extend[] the benefit of” “ eligibil[ity] for naturalization without having served for a ny particular length of time” “not only to individuals who served honorably in an active duty status during specified periods of hostilitie s, but also to individuals who have served honorab ly as members of the Selecte d Reserve of the Ready Reserve of the U.S. Armed F orces during such periods of hostili ties.” Naturali zation of Certain Persons in the U.S. Armed Forces, 75 Fed. Reg. 2,785, 2,785 (Ja n. 19, 2010) (codified at 8 C.F.R. Parts 328 and 329). Accordingly, since 2010, USCIS regu lations have provided that [t]o be eligible for naturaliz ation under [§ 1440], an applican t must establish that he or she . . . [h]as served honorab ly in the Armed Forces of the United States as a member of the Selected Reserve of the Ready Reserve or in an ac tive duty status in the Armed Forces of the Unite d States during [a designated p eriod of hostilities].

32 Because the MAVNI Program w as not authorized until 2008, § 144 0 applied only to LPRs.39 8 C.F.R. 329.2(a). The USCIS Policy Manual, fir st published in 2013, provided more detailed guidance on the prerequisites for natura lization under § 1440. The Manual stated that “‘[o]ne day of qualifying service [wa]s suffici ent in establis hing eligibility .’” 33 Nio II , 385 F. Supp. 3d at 50 (quoting USCIS Policy Manua l, Vol. 12, Part I, Ch. 3, § A); ( see also Pls.’ SJ Mot Ex. 6, at 1, ECF No. 4-7 (2017 version).) The Ma nual further defined “quali fying service” as “honorable service in the Selected Reserve of the Ready Reserve or active duty service in the U.S. Army, Navy, Marine Corps, Air Force, or Coast Guard.” Id. Thus, USCIS considered one day of service in either a n Active Component or one day of drilling as a Reservist to qualify a service member for natura lization under § 1440. At least two manuals from military branches mirror this guidanc e. First, from at least 2005 until 2017, “The Soldier’s Guide to Citizenship Applicatio n,” an Army document used to assist noncitizen enlistees in com pleting their naturalization applications, defined “honorable service” for purposes of certifying an N-426 as follows: As a general rule, a Soldier i s considered to be serving honora bly unless a decision has been made, either by t he Soldier’s commander or a court martial, to discharge him/her under less than honorable conditions. In the rare cases where the char acter of a Soldier’s service is questionable, ONLY the Soldier’s commander can decide this issue, and the sole cri terion for the decision is: If the Soldier wer e 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 c haracter of service on the N-4 26 will read “honorable.” If Under Less than Honorable Conditions, the N-42 6 character of service item will NOT read “honorable.”

33 This language was deleted from th e USCIS Policy Manual by some time in 2019. See USCIS Policy Manual, Vol. 12, P art I, Ch. 3, § A (2019).40 (Pls.’ SJ Mot. Ex. 8, at 11, ECF No. 4-9 (2017 version); Pls.’ SJ Mot. Ex. 9, at 11, ECF No. 4-10 (2011 version); Pls.’ SJ Mot. Ex 12, at 10, ECF No. 4-11 (2005 version).) Second, a Navy Personnel Manual dated March 14, 2008, provided, “Only 1 day of service is required during these periods [of hostility]” to qualify for naturalization und er § 1440. (Pls.’ SJ Mot. Ex. 13, at 2, ECF No. 4-14.) Further, DODI 5500.14 provides: Under the provisions of Section 1440 . . . an alien who serves honorably as a member of the Selected Reserve of the Ready Reserves or on active dutyin the Armed Forces of the United States during any [designated period of hostilities], and who is otherwise eligible, m ay be naturalized whether or no t the member has been lawfully admitted to the United States for permanent resid ence . . . . DODI 5500.14, at E2.2.1 (emphasis added). In practice during this time, U SCIS and the military cooperate d to assist noncitizen enlistees in obtaining their certified N-426s and submitting th eir naturalization applications upon arrival at basic training. Nio I , 270 F. Supp. 3d at 55–56. USCIS would adjudicate the applications and naturalize the enlistees before the end of bas ic training, which was typically ten weeks. Id. 34

c. 2017 In late 2016, the landscape bega n to change. Due to delays in shipping to basic training caused by the new security screeni ng requirements set forth in the September 30, 2016 DOD Memorandum, by mid-2017, approximately 500 MAVNI Reservists dri lling in the DTP had sought and had received certifi ed N-426s based only on service in at least one day of drilling.
Nio II , 385 F. Supp. 3d at 53. “However, som etime in the spring of 2 017, the Army began to

34 While the Court in Nio was concerned only with MAVNI enlis tees, this process applied equally to other noncitizen enlistees. See Nio I , 270 F. Supp. 3d at 55 n.11; USCIS Fact Sheet at 2.41 change its practice and began to decline requests for N–426s to MAVNIs still in the DTP on the ground that they were not se rving on ‘active duty.’” Kirwa I , 285 F. Supp. 3d at 32. By July of that year, DOD stopped certifying a ny new N-426s for MAVNI Rese rvists “because it ‘viewed IET [active duty] as a nece ssary precondition of an honorable s ervice determination,’” id. (quoting 7/7/17 Miller Decl. ¶ ¶ 19–20; 7/28/17 M iller Decl. a t 6 (AR 34)) (alteration in original), and on August 17, 2017, the Army placed a formal hol d on the issuance of any new N426s to those who had not yet served on “active duty,” pending development of criteria for issuing N-426s in the future. Id. ; see also Nio I , 270 F. Supp. 3d at 59–60. This new active-duty requirement prompted the filing of the Kirwa lawsuit. Kirwa I , 285 F. Supp. 3d at 34. On October 13, 2017, DOD issued the N -426 Policy that plaintiff s challenge in this case. In the N-426 Policy, DOD retreated from its position that Reservists who enlisted prior to October 13, 2017 (the Kirwa plaintiffs) were required to serve on “active duty” to receive a certified N-426. (AR 8.) However , the Policy imposed such a r equirement on those who enlisted after October 13, 2017 (th e plaintiffs in this case). (AR 7.) Based on the record before the Court, no durationa l or active -duty requirement existed prior to the October 13, 2017 N- 426 Policy. Instead, at least as early as 2003, if not earlier, DOD certified an N-426 based on the service member’s record at the time he submitted the form, and there were no durational require ments for MAVNIS or LPRs, nor w ere there any active-duty requirements for MAVNI or LPR R eservists. While the Court lack s the same empirical data 35
for LPRs in this case that it had for MAVNIs in Nio and Kirwa , the statutes, regulations, and policy manuals, and the Form N-426 treat LPRs and MAVNIs the sa me. Thus, it is reasonable to

35 In Nio , the Court had evidence that 500 MAVNIs had N-426s after one d ay of drilling. See Pls.’ Mot. for Prelim. Inj. Ex. 8, Nio , ECF No. 17-8 (May 19, 2017 DOD “Action Memo”); Pls’ App’x for Summ. J at 7, N io, ECF No. 216-2 (Index); Nio , 385 F. Supp. 3d at 52.42 infer that DOD’s prior N-426 prac tice as applied to MAVNIs is i ndicative of DOD’s practice as applied to LPRs. And, at leas t as early as 2008, one day of se rvice was sufficient in the Navy to obtain an N-426, and USCIS, which was tasked with the job of im plementing § 1440(a), only needed one day of service in a n Active Component or one day of drilling by a Reservist to qualify for an N-426 a nd naturalization. This conclusion is confirmed by two DOD documents, each circula ted weeks before the N-426 Policy was adopted. First, a DOD Info Memo dated Septemb er 22, 2017, “Military Accessions Vital to the National Interest (MAVNI) Pilot Program Update,” recommends “establish[ing] anew policy that any non-citizen enlistee complete basic training to include 180 days of active honorable service , or one year of Reserve weeken d drills and annual training, in order to qualify for a certifi cation of citizenship eligibility ( in contrast to the current practice of certifying eligibility after one day of service ).” (AR 28 (emphasis added).) Second, “Policy Changes Concerning Lawful Permanent Residents and the Military Accessions Vital to the National Interest (MAVNI) Pilot Program,” issued on the eve of the N-426 Policy, explains that the October 13 N-426 Policy “is a c hange from the current pract ice of certification of honorable service for the purpose of exped ited naturalizat ion after ‘one day of service.’” (AR 17, 20.) Defendants admit that this past practice existed. ( See Hr’g Tr. at 50-51, July 16, 2020, ECF No. 37 (“7/16/20 Tr.”) (“MR. SWINT ON: . . . [T]he information that the Court has is correct with regards to the military’s more recent practice”)), but they con test that it was “longstanding.” ( Id. (describing the practice as “short-term”).) Defendants argue, instead, that DOD’s “longstanding practice” (7/16/20 Tr. at 50) was to “require[] a substantial r ecord of service when evaluating whether service is honorable,” and the N-426 Policy “returned D oD’s process for making43 honorable service determinations to what had previously existed .” (Defs.’ SJ Mot. at 28.) Defendants’ argument fails for two reasons. First, as discussed above, at least from 1968 until 2017, there were no active-duty requirements or durational requir ements for Reservists or any d urational requirements for either MAVNIs or LPRs in active-duty c omponents. Further, we know fro m the USCIS Policy Manual that at least by 2013, the USCIS considered, for purposes of na turalization, that one day of active duty or one day of drilling for Res ervists was sufficient to qu alify for an N-426. This history is sufficient to trigger defendant s’ obligation t o acknowledge and explain any departure from that practice. Second, the only evidence cite d by defendants to support their proposition that “[t]he military . . . has always required a substantial record of serv ice when evaluating whether service is honorable” relates t o characterization of discharge , not characterization of service for purposes of naturalization. For instance , defendants’ two cases from th e 1940s involved plaintiffs who had received uncharacterized disc harges from the draft and who sought declaratory judgments that they were entitled t o honorable discharges. Patterson , 329 U.S. at 540-41, and Davis , 111 F.2d at 523–24. In both cases, the Supreme Court and the D.C. Circuit, respectively, upheld the plaintiffs’ uncharacterized discharges as in accordance with Wa r Department regulations providing that men who were drafte d but discharged at their mob ilization camps before being “finally accepted for military s ervice” were to receive unchara cterized discharges. Patterson , 329 U.S. at 542–44; see also Davis , 111 F.2d at 525. Neither case relates to or discusses characterization of service f or purposes of naturalization, nor does either case hold, as defendants claim, “that the military needs a sufficient amount of time in order to make an honorable service characterization determination.” (7/16/20 Tr. at 29.) Instead , both Courts deferred to the War44 Department’s policy governing disch arges, which, unlike natural ization, is squarely within the province of the military. See supra Section I (Analysis). Moreove r, in the only case cited by the parties involving naturalization at this time, a federal court held that the pe titioner could naturalize regardless of the amount of time he served because the Nationality Act of 1942—the predecessor to § 1440—“establishe[d ] no prerequisites as to dur ation of service.” Petition of Delgado , 57 F. Supp. 460, 461 (N.D. Cal. 1944). The remainder of defendants’ evi dence—former regulations and D ODI 1332.14—also deals exclusively with the chara cterization of discharge. The former regulations, in their original iteration, provided that “[i]ssuance of an Honorable Discharge will be conditioned upon proper military behavior and proficient performance of duty with due c onsideration for the member’s
age, length of service , grade, and general aptitude.” 31 Fed. Reg. 705, 706 (Jan. 19 , 1966) (codified at 32 C.F.R. Part 41) ( emphasis added). These regula tions were later amended to establish an “entry le vel status,” which w as held by a service member during “[t]he first 180 days of continuous active military service” or, for a Reservist , the first “180 days after beginning an initial period of entry lev el active duty training.” 47 Fed . Reg. 10,162, 10,175 (Mar. 9, 1982). A service member discharged during that time received an Entry Level Separation, or an uncharacterized discharge. Id. at 10,183. “[E]xcept in combat operations or other special circumstances,” a service memb er was only eligible to receive a n honorable discharge after advancing out of entry level status. Id. at 10,171. The substance of t hese regulations was removed from the C.F.R. in 1998 an d is currently maintained in the DODI. See DODI 1332.14, Enlisted Administrative Separations , Encl. 4, § 3c(1)(a) (providi ng that any service member separated while in “entry-level status” will receive an unchara cterized discharge). While the former regulations and current DODI support the notion that len gth of service has been a45 consideration in characterizing a discharge, defendants fail to show that these standards have ever been applied to or are rel evant to an N-426 certification. 36 The only evidence of past practice with regard to this sp ecific type of s ervice certifica tion, therefore, shows that, long before October 13, 2017, DOD certified service on an N-426 base d on the service member’s record at the time he or she submitted it, and that the enliste e could obtain an N-426 after one day of active duty or one day of dr illing, in the case of a Res ervist.
2. DOD’s Explanation Defendants claim that the Minimum Service Requirements were “in cluded in the [N-426 Policy] to align DoD’s honorable s ervice characterizations withhow DoD defines honorable service more broadly.” (Defs.’ S J Mot. at 27.) Defendants att empt to support this claim with the declaration of Stephanie P. Miller 37 (Defs.’ SJ Mot. Ex. 1, ECF No. 19-2 (“05/22/20 Miller Decl.”)), and a two-page docum ent titled “Army Input on Certifi cation o[f] Military or Naval Service in an Active Duty Status for the Purpose of Naturalizat ion.” (AR 41–42.) This document was provided by the Arm y after a July2017 meeting inv olving USD(P&R), the Army, the Navy, and the Air Force, whe re attendees discussed “develop ing a policy to require that . . . members serve for a defined period of time before DoD makes an honorable service determination.” (05/22/20 Miller Decl. ¶ 7.) In it, the Army“recommend[s] that any

36 Although standards for discharg e were not applied to an N-426 certification prior to October 13, 2017, DOD’s discharge practice has had a serious impact on a noncitizen’s ability to naturalize. Pursuant to th e September 30, 2016 DOD Memorandum, a soldier cannot ship to basic training unless his MSSD i s completed. If a soldier rece ives a negative MSSD, “he or she is discharged promptly, and the disc harge will be ‘uncharacteri zed’ by virtue of the soldier’s entry-level status.” Nio II , 385 F. Supp. 3d at 64. According to USCIS’s policy, an uncharacterized discharge automa tically disqualifies a discharg ed soldier from naturalizing under § 1440 because it is not an honorable discharge. Id.

37 Stephanie P. Miller is the Director of the Accession Policy Di rectorate in the Office of the Under Secretary of Defense for P ersonnel and Readiness. (05/22 /20 Miller Decl. ¶ 1.)46 prospective requirements concer ning length of ser vice be tied t o commonly used personnel policies concerning characteriz ation of service” and “suggest[s ] using the same standard that we use for giving someone an honorab le discharge.” (AR 41 (citing DODI 1332.14).) The administrative record pain ts a different narrative. Two DO D memoranda prepared during the design of the N-426 Po licy strongly suggest that the Minimum Service Requirements were included to address nationa l security concerns raised by t he inclusion of noncitizens in the military. The first, the September 22, 2017 DOD Info Memo titl ed “Military Accessions Vital to the National Interest (MAVNI) Pilot Program Update,” describes ongoing and recommended efforts to mitigate the “count erintelligence . . . risk” presen ted by MAVNIs and LPR enlistees. ( See AR 27–28 (“LPR recruits . . . share [] many of the same risk fa ctors with the MAVNI population.”).) “[T]o address ongoing mitigation efforts,” the document recommends what would become the Minimum Service Requirements—that DOD “establi sh a new policy that any non-citizen enlistee complete b asic training to include 180 day s of active honorable service, or one year of Reserve weekend dri lls and annual training, in orde r to qualify for a certification of citizenship eligibil ity.” (AR 28.) The second memorandum, “Po licy Changes Concerning Lawful Permanent Residents and the Military Accessions Vital to the National Interest (MAVNI) Pilot Program,” was dissemina ted the day before the N-426 Polic y was issued in order to further “[t]ransparency with all audience s regarding policy changes aff ecting DoD foreign nationals,” to “[e]nsure those affected unders tand the reasoning and importanc e of the changes,” and to put forth “[a]ccurate information in the public domain.” (AR 15.) In explaining the changes made by the N-426 Policy, the document states: In the case of non-citizen applicants for military service, due to security, counterintelligence, and insider threat concerns , it is the Dep artment’s intent to ensure all appropriate security s creening is complete prior to the individual’s entry into military service a nd a certification of honorable se rvice is granted for47 purposes of expedited naturalization. As such, effective immediately, i n order for a foreign national serving in the Active, Reserve, or Guard Servi ce to receive a certification of honorable service for the purposes of expedited na turalization (citizenship), he or she must:

. . . Complete at least 180 consecuti ve days of active duty service, or a [sic] least one year of satisfactory service in the Selected Reserve. (AR 20.) Thus, both documents tie the Minimum Service Requirem ents to national security

concerns. This explanation track s the one defendants gave for the N-426 P olicy’s background investigation and suitability vetting requirements in Kirwa

. Kirwa I , 285 F. Supp. 3d at 39 (“In an attempt to explain the change , defendants’ counsel repeated the now-familiar-r efrain that DOD has made the change for ‘nat ional security’ purposes.”); (H r’g Tr. at 32, Kirwa , Oct. 18, 2017, ECF No. 27 (“10/18/17 Kirwa Tr.”) (“National security c oncerns . . . has [sic] necessitate d these policy changes.”)). The C ourt rejected this rationale—“n ational security issues may justify enhanced security screeni ng, . . . but N-426 certification is n ot related to that process. . . . Therefore, DOD has given no reas oned justification why certifyi ng a form N-426 for immigration and naturalization purposes implicates our national security.” Kirwa I , 285 F. Supp. 3d at 39. DOD then shifted its rat ionale in that case, asserti ng that the N-426 Policy “reflects DoD’s desire to establish, for t he first time, a clear and cons istent process for N-426 certifications following a number of years in which the militar y was applying inconsistent standards for such determinations.” Kirwa II , 285 F. Supp. 3d at 269. The Court also rejected this rationale because it found “no support in the administrati ve record.” Id. In this case, defendants disavow the national security rational e as it relates to the Minimum Service Requirements and suggest that its mention in th ese documents relates to other48 policies put in place on Octobe r 13, 2017. (7/16/20 Tr. at 52. ) But neither of the abovementioned pre-October 13, 20 17 memoranda, which purport to explain the Minimum Service Requirements, mention aligning N-426 practice with DOD’ s discharge practice. Moreover, the Reservist Minimum Service Requirement does not al ign with DOD’s discharge practice. Pursuan t to DODI 1332.14, a Reservist grad uates from entry-level status after 180 days of continuous activ e-duty training or, if his tr aining is split, ninety days after beginning his second period of ac tive-duty training. The Reservist Minimum Service Requirement, however, requires thata Reservist serve for a yea r, including 180 days of activeduty service, before he or she is eligible to receive a certifi ed N-426. Also, defendants assert that the longer time-in-service re quired by the N-426 Policy for Res ervists was due to “an awareness by DoD that such service members serve in an active-duty capaci ty less frequently and thus build their service record at a slower rate.” (Defs.’ SJ Mot. at 28. ) But this explanation finds no support in the record. Nor does the explanation given by defendants “connect[] the fac ts found and the choice made.” State Farm , 463 U.S. at 43. Defendants’ explan ation suggests that the st andards pertaining to an individual’s suitability for military service are coextensive with those governing eligibility to naturalize. While a fuller military record may be necessary to determine whether someone is suitable to serve in the military, defendants have n ot explained why it is necessary for eligibility to naturalize. S ince the ability to perform in the military does not equate with good moral character for purposes c itizenship, USCIS makes an indepe ndent judgment as to whether an individual qualifies for the latter. Specifically, USCIS is required to “conduct examinations” of all applicants. 8 U.S.C. § 1446(b); see also 8 C.F.R. § 332.1(a) (design ating USCIS officers “to conduct the examination for naturalization required under” the INA). Pursuant to USCIS49 regulations, this includes a re view of FBI criminal background checks. See 8 C.F.R. § 335.2(b). When adjudicating naturalization ap plications of service member s, USCIS also requests from DOD name check queries of DOD’s Def ense Clearance Investigative Index to see if the applicant has a criminal reco rd on his or her military record. See USCIS Policy Manual, Vol. 12, Part I, Ch. 6, § A. After these ch ecks, an applicant is interv iewed by a USCIS officer. See 8 C.F.R. § 335.2. USCIS will not approve a natura lization application unless the agency determines that the applicant is “a person of good mora l character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happ iness of the United States.” 8 U.S.C. § 1427(a). The applicant “b ears the burden of demonstrat ing that, during t he statutorily prescribed period, he or she ha s been and continues to be a per son of good moral character,” 8 C.F.R. § 316.10(a)(1), and USCIS m akes this determination “on a case-by-case basis.” 8 C.F.R. § 316.10(a)(2). While certain design ated criminal and immoral acts are automatically disqualifying, USCIS otherwise ha s discretion to evaluate the a pplicant’s character. Id.
In Nio , defendants acknowledged that ce rtain considerations made in t he military suitability context, such as “be havior that could make an indiv idual vulnerable to coercion in the context of handling classif ied information . . . may be less re levant to a USCIS assessment of the individual’s mor al character.” Nio II , 385 F. Supp. 3d at 65 (citation a nd internal quotation marks omitted). Similarly, “in rendering an assessment [of mil itary suitability], any doubts ‘will be resolved in favor of the natio nal security.’ By contrast, i n assessing good mo ral character USCIS has discretion to evaluate the applicant’s character in t he context of ‘the standards of the average citizen in the co mmunity of residence.’” Id. (quoting DOD Memorandum:50 Implementation of Adjudicative Guid elines for Determining Eligi bility for Acce ss to Classified Information (Dec. 29, 2005), Aug. 30, 2016, and 8 C.F.R. § 316. 10(a)(2), respectively). Moreover, Ms. Miller explained in another case that at least so me individuals being found “unsuitable” for military servi ce should still eligible to natu ralize under USCIS’s requirements: When we screen someone for the purpose of suitability and secur ity, we’re screening at a fairly high th reshold. So an individual who mayhave a known or unknown relative that works for aforeign defense department or foreign intelligence agency, the individual themselves may have no mali cious intent towards the United States or to t he government; but we cannot m itigate the fact that they have a direct relativ e working for a foreign intellig ence agency. So, therefore, the individual may not be suitable to hold a nationa l security position [ i.e. , to serve as a soldier]. But ultimately that may not mean that the individual is not sui table to ultimately become a United States citizen. A nd we have tried very hard to make that distinguishing factor with our colle agues at Department of Home land Security and USCIS. So they may not be abl e to serve [or continue servi ng] in the military, but that may not bear on [USCIS’s] final determinatio n as to whether that individual shoul d be naturalized. (Pls.’ Notice Ex. 8, , Nio , Mar. 24, 2019, ECF No. 244-8 ( trial testimony in Tiwari v. Mattis , No. C17-00242 (W.D. Wash.)) (alt erations in original).) 38 In establishing the Minimum Serv ice Requirements, defendants ha ve also “failed to consider . . . important aspect[s] of the problem,” State Farm , 463 U.S. at 43, including the fact that the Reservist Minimum Serv ice Requirement has the practica l effect of requiring Reservists to serve the same amount of tim e to be eligible to naturalize u nder both § 1440 and § 1439. Section 1439 requires noncitizens serving in times of peace to serve a minimum of one year before becoming eligible to na turalize. 8 U.S.C. § 1439(a). T his one-year minimum may be

38 In Tiwari , a district court held that na turalized citizens who had enlis ted through the MAVNI program had been unconstitutionally discriminated against on th e basis of national origin because the government had subjected them to NIAC checks and co ntinuous monitoring for national security concerns, even after becoming citizens. See Tiwari v. Mattis , 363 F. Supp. 3d 1154 (W.D. Wash. 2019).51 satisfied by “a combination of active duty and inactive duty ina Reserve Status.” DODI 5500.14, at E2.1.2; 32 C.F.R. 94.4(a)(2). Section 1440, on the other hand, was intended to provide an expedited path for those serving during periods of h ostility. Unlike § 1439, there is no duration of servi ce requirement in§ 1440. However, the N-4 26 Policy imposes such a requirement, thereby effectively r equiring Reservists to serve the same amount of time in both peacetime and wartime and era sing the benefit of § 1440 for Res ervists. In sum, defendants’ purported exp lanation is not reflected in t he administrative record, does not “connect[] the facts found and the choice made,” and d oes not “consider . . . important aspect[s] of the problem.” State Farm , 463 U.S. at 43. While the Court’s review may be circumscribed, the APA clearly r equires more of an agency. Acc ordingly, the Court will grant summary judgment to plaintiffs on t heir claim that the Minimum Service Requirements are arbitrary and capricious.
B. Contrary to Law & Agency Act ion Unlawfully Withheld Plaintiffs claim that the Minimu m Service Requirements violate 5 U.S.C. § 706(2)(A) and (C), which instruct a review ing court to “hold unlawful and set aside agency action . . . not in accordance with the law,” § 706(2)(A), or “in excess of statuto ry jurisdiction, authority, or limitations, or short of statutory right,” § 706(2)(C). 39 The crux of plaintiffs’ claim is that the Minimum Service Requirements s ubstantively amend the naturaliza tion requirements set forth in § 1440. Plaintiffs also assert that defendants’ refusal to cer tify plaintiffs’ N-426s because they have not met a Minimum Service Requirement violates 5 U.S.C. § 706(1), which directs a court

39 These claims are essentially the same because “there is no difference , insofar as the validity of agency action is concerned, between an agency’s exceeding the s cope of its authority (its ‘jurisdiction’) and its exceeding authorized application of aut hority that it unquestionably has.” City of Arlington v. F.C.C. , 569 U.S. 290, 299 (2013).52 to “compel agency action unlawfu lly withheld.” To show that DO D has unlawfully withheld plaintiffs’ honorable service cert ifications, plaintiffs must p rove 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). The required action “mu st be ‘ministerial or no ndiscretionary’ and must amount to ‘a specific, unequivocal command.’” W. Org. of Res. Councils v. Zinke , 892 F.3d 1234, 1241 (D.C. Cir. 2018) (quoting Norton , 542 U.S. at 63–64). Plaintiffs a rgue that § 1440 commands such action from DOD. Because both plaintiffs’ claim under 5 U.S.C. § 706(2)(A) and ( C) and their claim under 5 U.S.C. § 706(1) require the C ourt to interpret § 1440, the Co urt will consider the two together.
See Kirwa II , 285 F. Supp. 3d. at 268 n.9 (plaintiffs’ contrary-to-law and unreasonable delay claims survived a motion to dismiss for the same reasons). In doing so, the Court will employ “the traditional tools of statutory construction . . . include[ ing] examination of the statute’s text, legislative history, and structure, as well as its purpose.” Petit v. U.S. Dep’t of Educ. , 675 F.3d 769, 781 (D.C. Cir. 2012).
1. Purpose and Statutory Text Section 1440 was enacted “to prov ide for the expeditious natura lization” of noncitizens serving in the military during designated periods of hostility. S. Rep. No. 1292, at 2. To that end, the statute state s, in relevant part: Any person who, while an alien or a noncitizen national of the United States, has served honorably as a member of t he Selected Reserve of the Rea dy Reserve or in an active-duty status in the military, air, or naval forces of the United States during [a designated period of hos tility], and who, if separate d from such service, was separated under honorable c onditions, may be naturalized as provided in this section . . . . The executive department under which such pers on served shall determine whether persons have served honorably in an active-duty status, and whether separation from such s ervice was under honorable condit ions . . . .53 8 U.S.C. § 1440(a). Defendants ar gue that, because the INA doe s not define what it means to have “served honorably,” Congress delegated the interpretation of that term to DOD, and the Court should thus defer to DOD’s in terpretation as set forth inthe N-426 Policy. (Defs.’ SJ Mot. at 33, 38.) Defendants’ argument is unpersuasive. Section 1440 is a naturalization s tatute, and “[t]he sole autho rity to naturalize persons as citizens of the United States is conferred upon the Attorney Ge neral.” 8 U.S.C. § 1421(a). The Attorney General, in turn, has de legated this power to USCIS, n ot DOD. 8 C.F.R. § 310. While the statute contemplates a role for DOD, that role is limited t o certifying an enlistee’s honorable service, not rewriting the statute to establish new standards f or naturalization. That defendants are not authori zed to establish n aturalization standards under § 1440 is bolstered by USCIS’s understanding of DOD’s role in the natural ization process , as indicated by the format of Form N-426 as it existed at leas t beginning in 20 13 through 2019. 40 ( See Pls.’ PI Mot. Ex. 4, Kirwa , ECF No. 11-4 (Form N-426 that expired on August 31, 2019) (“2 019 N426”)); Pls.’ PI Mot. Ex. 3, Kirwa , ECF No. 11-3 (Form N-426 that expired on August 31, 2017) (“2017 N-426”); USCIS Form N-426 (Form N-426 that expired April 30, 2015) (“2015 N-426”). The form first required the appl icant-enlistee to provide perso nal information and all periods of military service, by branch, dates of service, and “type of ser vice”—either “Active Duty” or “Selected Reserve of the Rea dy Reserve.” 2019 N-426 at 1–3; 20 17 N-426 at 1–3; 2015 N-426 at 1. For applicants who are currently serving, the form requi red the certifying official to simply check “Yes” or “No” as to whether the enlistee is serving or ha s served honorably. 2019 N-426 at 3; 2017 N-426 at 3; 2015 N-426 at 1. If the answer is “No,” the certifying official was

40 The forms used between 2013 and 2019 are “essentially the same .” Kirwa I , 285 F. Supp. 3d at 27 n.7.54 directed to provide details in t he “Remarks” section, specifica lly to “[p]rovide any derogatory information in your records relat ing to the service member’s ch aracter, loyalty to the United States, disciplinary action, c onvictions, other than honorable discharges, or other matters concerning his or her fitness for citizenship.” 2019 N-426 at 3–4; 2017 N-426 at 3–4; see also 2015 N-426 at 1. The form requi red nothing more of DOD. Thus, defendants are not entitled to deference in their interpr etation of § 1440. See DeNaples v. Office of Comptroller of Currency , 706 F.3d 481, 487 (D.C. Cir. 2013) (“Justifications for deference begin to fall when an agency int erprets a statute administered by multiple agencies.”); see also Kirwa II , 285 F. Supp. 3d 267 n.8 (“ Chevron deference would not be applicable given the lack of e vidence that Congress delegate d authority to DOD to interpret immigration statutes and the informal manner in which DOD reach ed its October 13th Guidance.”).
2. Structure Moreover, while § 1440 does not explicitly define what it mean s to have “served honorably,” the language of § 1440, o ther parts of the INA and the statute’s legislative history indicate the term’s m eaning. As recognized in Kirwa , “[e]very characterization of honorable service or separation under honor able conditions in 8 U.S.C. § 1440 is defined in terms of past
service .” Kirwa II , 285 F. Supp. 3d at 267 (emphasis adde d). The statute applies to “[a]ny person who . . . has served honorably,” and DOD’s role under t he statute is confined to “determin[ing] whether persons have served honorably.” 8 U.S.C. § 1440(a) (emphasis added). References to honorable service or separation under honorable c onditions in subsections (b) and (c) are likewise stated in the past tense. Thus, § 1440 “speci fically refers to past service , not to DOD’s possible future suitability determinations,” Kirwa I , 285 F. Supp. 3d at 36, and, through the time-in-service requirements contained in the Minimum Servi ce Requirements, “defendants55 are impermissibly conflating a present suitability determinatio n with a determination of past honorable service.” Kirwa II , 285 F. Supp. 3d at 267-68. The problem identified by defenda nts—that certifying N-426s on ly on past service equates to certifying honorable s ervice “on the basis of a bare bones record associated with a brief period of service” (Defs.’ SJ Mot. at 34)—is resolved by another subsection of § 1440. Under subsection (c), [c]itizenship granted pursuant t o this section may be revoked . . . if the person is separated from the Armed Forces under other than honorable cond itions before the person has served honorably f or a period or periods aggrega ting five years. Thus, § 1440 contains an implicit requi rement that an individua l serve honorably for at least five years to maintain U.S. citizen ship. Immediate eligibility to a pply for citizenship in subsection (a) is compatible with subsection (c)’s safeguard. That § 1440 contains no minimum serv ice requirement is confirme d by the text of § 1440’s companion, § 1439, which provi des an expedited path to naturalization for military service during peacetime. Both s ections were enacted on the sa me date, but Congress limited the benefit of § 1439 to “person[s] w ho ha[ve] served honorably at any time in the armed forces of the United States for a period or periods aggregating one year .” 8 U.S.C. § 1439(a) (emphasis added). By contrast, Congress did n ot include a minimum time-i n-service requirement in § 1440. The inclusion of a time-in-service requirement in § 14 39 shows that Congress knows how to establish such a requireme nt when it wants to, and the l ack of a time-in-service requirement in § 1440 suggests that Congress did not intend for one to apply there. See Council for Urological Interests v. Burwell , 790 F.3d 212, 221 (D.C. Cir. 2015) (inclusion of language in one statutory exception and omi ssion of the same language in an other “suggest[s] that the omission in this particular c ontext was deliberate”); Hedrick v. Novastar Mortg., Inc. (In re56 Hedrick) , 524 F.3d 1175, 1187 (11th Cir. 2008) (“W here Congress knows h ow to say something but chooses not to, its silence is controlling.”); New York State Bar Ass’n v. F.T.C. , 276 F. Supp. 2d 110, 135 (D.D.C. 2003) (collecting cases that “have found th at when Congress legislates in one area with explicit referen ce in a statute on an area of con cern, but fails to ref erence that same subject matter in another statute, its silence is evidence that Congress did not intend for there to be applicability in the latter statute”).
3. Legislative History Defendants argue that Congress’ s silence as to time-in-service in § 1440, when contrasted with the time-in-service re quirement of § 1439, “indicat[es] th at Congress left it to DoD to construe the phrase ‘honorab le service’” in § 1440. (Defs.’ SJ Mot. at 18.) But defendants’ reading is contrary to § 1440’s le gislative history, which is r ipe with evidence that Congress intended that there be no minimum time-in-service required of anoncitizen enlist ee in order to benefit from § 1440. Burns v. United States , 501 U.S. 129, 136, (1991) (“A n inference drawn from congressional silence certa inly cannot be c redited when it is contrary to all other textual and contextual evidence of c ongressional intent.”). In 1940, the INA’s predecessor, the Nationality Act, established the first expedited path to citize nship for noncitizen service members, as long as they “ha[d] served honorably at any time . . . for a period or periods aggregating three years.” 54 Stat. 1149–50. Two years later, Congress amended the NA to remove the three-year service requirement for those who had served or were serving honorably in World War II. 56 Stat. 182. The meaning of this change was discussed by Representative A. Leonard Allen and Dr. Henry B. H azard, Assistant to the Commiss ioner of the Immigration and Naturalization Service (USCIS’s predecessor), at a hearing befo re the Immigration and Naturalization Committee: Mr. Allen: Does this bill simpl y make it mandatory that any on e who joins the57 army immediately gets citizenship[?] Mr. Hazard: Not at all, sir. His service must be honorable. Mr. Allen: How long musthe render service? Mr. Hazard: No particular period of time. Naturalization of Aliens Serving in the Armed Forces of the U.S.: He aring on H.R. 6073, H.R. 6416, and H. R. 6439 before the H. Comm. On Immigration and Naturalization , 77th Cong. 12 (1942) (emphasis added). Representative Noah Mason confirmed that, under the amendment, a noncitizen service member “imm ediately . . . becomes eligible t o make [a naturalization] application.” Id. at 14. Defendants argue that this leg islative history “evidences Congr essional intent to vest discretion in DoD whe n making honorable service determinations. ” (Defs.’ SJ Mot. at 22.) They base their assertion on a single statement made by Represe ntative Mason: “We aren’t going to give [a noncitizen service member] his citizenship pap ers the next day after he joins the army, in any instance.” 77t h Cong. 14. But receipt of a certi fied N-426 is not the same as receipt of citizenship papers . A certified N-426 is only part of an application for naturalization under § 1440. Once a naturalization application is received, U SCIS will schedule an appointment with the applicant t o have her biometrics taken. U SCIS, A Guide to Naturalization 31 (2016). After the applicant attends that appointment, the a pplicant must submit any additional paperwork required by USCIS. Id. USCIS then conducts its own inve stigation of the applicant and schedules an interview. Once the applicant is interviewed, USCIS is required to make a determination on the app lication within 120 days. See 8 U.S.C. § 1447(b). If the application is approved, the applicant will r eceive a ceremony date, at which time she will take the Oath of Allegiance and then receive her Ce rtificate of Naturalization. Id. Thus, even when an enlistee58 receives a certified N-426 after one day of service, she must w ait a significant amount of time before becoming a citizen. 41 Representative Mason’s statem ent is therefore consistent with Congress’s intent to allow noncitizen service members to apply for naturalization under § 1440 without regard to the amount of time they have served. 42
The 1942 version of the statute w as carried forward by the INA , see 66 Stat. 249–50, and in 1968, § 1440 was amended to expand e ligibility for naturaliz ation to those who served in the Vietnam War and in future de signated periods of hostility. See 82 Stat. 1343–44. As noted

supra , see Section II.B.3 (Analysis), the legislative history of this ame ndment provides that “an alien or noncitizen national who has served honorably . . . maybe naturalized without regard to . . . a waiting period . . . . [T]he peacetime serviceman must have a minimum of 3 ye ars’ service[;] the wartime serviceman has no minimum required .” (Pls.’ SJ Mot. Ex. 3, at 4–5 (emphasis added)); see also 114 Cong. Rec. 30,763 (tying eligib ility under § 1440 to servi ce during a designated period of hostility, rat her than location of service ). USCIS, the agency responsible for administering § 1440, has consis tently interpreted the stat ute in accordance with this legislative history. Accordi ng to the agency, § 1440 extends t he benefit of expedited

41 Indeed, the average USCIS processing time for all military nat uralization applic ations in May of 2017, while the USCIS Naturaliz ation at Basic Training Initi ative was still in place, was approximately four months. See Nio , 385 F. Supp. 3d at 56. According t o the USCIS website, naturalization applica tion processing times are currently much longer, with times ranging from twelve to seventeen and a half months in Houston, Texas, and be tween nine and twenty-eight months in Honolulu, Hawaii. Check Case Processing Times, USCIS , https://egov.uscis.gov/processing -times/ (last visited August 1 0, 2020).

42 As noted, at least one court has interpreted the Nationality A ct as amended in 1942 to “establish[] no prerequisites as to duration of service” for el igibility to naturalize. Petition of Delgado , 57 F. Supp. at 461. The court held t hat a noncitizen “servin g honorably for one day or one week[] [wa]s eligible for c itizenship under [the NA] upon c ompliance with the applicable naturalization requirements.” Id.59 naturalization to “al iens who served in the U.S. Armed Forces d uring specific periods of hostilities . . . without having served for anyparticular length of time .” 75 Fed. Reg. 2,785. Defendants argue that the onl y remaining service requirement o f Section I of the N-426 Policy, the active-duty requirement of the Reservist Minimum Se rvice Requirement, is required by the text of § 1440. (Defs.’ SJ Mo t. at 33 (“[T]he only crit eria imposed by Congress [in § 1440] is that the service must have been (1) honorable and (2 ) in an active-duty status.”); 7/16/20 Tr. at 32 (“MR. SWINT ON: . . . [T]he second sentence of subsection A [of § 1440] makes clear that they must have serv[ed] in an active duty stat us.”). Defendants hang their hat on the second sentence of subsecti on (a), which states, “The ex ecutive department under which such person served shall determine whether persons have served honorably in an active-duty

status .” 8 U.S.C. § 1440(a) (emphasis a dded). But this reading, too , contradicts the text and legislative history of § 1440. Catawba Cnty. v. E.P.A. , 571 F.3d 20, 35 (D.C. Cir. 2009) (“[A] statute may foreclose an . . . i nterpretation despite . . . tex tual ambiguities if its structure, legislative history, or purpose ma kes clear what its text leave s opaque.”). At its inception, § 1440 of the INA a pplied to noncitizens who “ha[d] served honorably in an active-duty status.” 6 6 Stat. 250. In 2003, Congress amend ed the statute so that it would apply to anyone “serv[ing] honorab ly as a member of the Selecte d Reserve of the Ready Reserve

or in an active-duty status.” 117 Stat. 1693 (emphasis added). Because the word “or” “‘is almost always disjunctive, . . . the phrases it connects are to be given separate meanings.’” Pinson v. U.S. Dep’t of Justice , 964 F.3d 65, 69 (D.C. Cir. 2020) (quoting United States v. Woods , 571 U.S. 31, 45 (2013)) (alteration omitted). Thus, § 1440, as amended in 2003, applies to any noncitizen “serv[ing] honorab ly as a member of the Selec ted Reserve of the Ready Reserve,” without regard to wheth er he or she is serving “in anactive-duty status.”60 The legislative history confirms that the statute applies equa lly to Reservists and activeduty service members, without im posing any further requirements on the former category of enlistees. As detailed supra , see Section II.B.3 (Analysis), the C ongressional Record relating t o the 2003 amendment shows that Congr ess intended to extend to Re servists the same “process of immediate naturalization” that had existed for t hose serving in an Active Component. See 149 Cong. Rec. S7,280–83. Again, USCIS has interpreted § 1440 consistent with this legis lative history: [T]he [2003 amendment] extended the benefit of naturalization n ot only to individuals who served honorably i n an active duty status durin g specified periods of hostilities, but also to individuals who have served honorab ly as members of the Selected Reserve of the Rea dy Reserve of the U.S. Armed For ces during such periods of hostilities. 75 Fed. Reg. 2,785. In sum, to determine whether a noncitizen enlistee has “served honorably,” § 1440 allows DOD to consider only an enlistee’s past service. DOD may not, through a time-in-service requirement or an active-duty req uirement, convert this determi nation to a certific ation of present military suitability or active honorable service. Moreover, DOD’s duty under § 1440 is a mandatory one. The statute provides that DOD

“ shall determine whether persons ha ve served honorably.” 8 U.S.C. § 1440(a) (emphasis added). The word “shall” is “mandatory” and “normally creates an obliga tion impervious to judicial discretion.” Kingdomware Techs., Inc. v. United States , 136 S. Ct. 1969, 1977 (2016) (citation and internal quotation marks omitted). DOD contends that the 1948 amend ment to the Nationality Act “u ndercuts any notion that [DOD’s] role is ministerial .” (Defs.’ SJ Mot. at 23.) Th e pre-1948 version of the statute provided that honorable servi ce be proved by filing two affidav its of at least two citizen61 servicemembers “of the noncommi ssioned or warrant officer grade or higher . . . or by a duly authenticated copy of the record of the executive department ha ving custody of the record of petitioner’s service.” 56 Sta t. 182. The 1948 amendment added the requirement that “[t]he executive department under whic h such person served shall determine whether persons have served honorably in an active-dut y status, and whether separati on from such service was under honorable conditions.” 62 Stat. 282. But that the statute was amended to require more action of DOD does not preclude its be ing “nondiscretionary.” W. Org. of Res. Councils , 892 F.3d at 1241 (citation and internal quotation m arks omitted) (“The legal dut y must be ministerial or nondiscretionary and must amount t o a specific, unequivocal command.” (citation and internal quotation marks omitted).) In fac t, DOD and USCIS counsel ackn owledged in Nio that certifying Form N-426 is ministerial. See Kirwa I , 285 F. Supp. at 38 (“DOD serves a ministerial role in determining i f an individual is serving hon orably.” (quoting Defs.’ Resp. to Pls.’ Mot. for a Prelim. Inj. at 36, Nio , ECF No. 19)). Thus, not only is DOD prohibited fro m considering anything bey ond an enlistee’s past service record in determining w hether he or she has served hono rably, but upon receipt of a request to certify an N-426 by a noncit izen who has satisfied t he one day of qualifying service,
DOD must make the required determination. Accordingly, the Court will grant summary judgment to plaintiffs on their cla ims that the Minimum Service Requirements are contrary to law and that DOD’s refusal to certify plaintiffs’ N-426s becaus e they have not met those requirements constitutes agency action unlawfully withheld. 43

43 Plaintiffs agreed that, unless th eir other claims failed, it w as not necessary for the Court to address their notice-and-comme nt claim. (7/16/20 Tr. at 80–81. ) Because the Court will grant summary judgment to plaintiffs on t heir three other claims, the Court will not reach the merits of their notice-and-comment claim.62 CONCLUSION For the foregoing reasons, plai ntiffs’ motion for summary judg ment will be granted, and defendants’ motion for summar y judgment will be denied. The Mi nimum Service Requirements will be vacated. A separate Order accompanies this Memorandum Opinion.

_______________________ ELLEN S. HUVELLE United States District Judge

Date: August 25, 2020