                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


    ANGE SAMMA, et al.,

                          Plaintiffs,

                 v.                                    Civil Action No. 20-cv-1104 (ESH)

    UNITED STATES DEPARTMENT OF
    DEFENSE, et al.,

                         Defendants.



                                  MEMORANDUM OPINION

       The United States has a long history of allowing noncitizens to serve in its military and

providing those who serve with an expedited path to citizenship. But in recent years, despite its

need for noncitizen enlistees to fill its ranks, the Department of Defense (“DOD”) had placed

obstacles in that path to citizenship. DOD’s actions have led to a significant amount of litigation,

much of it before this Court. This is another such case that pits noncitizen service members

against the DOD.1

       Plaintiffs are noncitizens serving in the United States military who wish to file

applications for naturalization pursuant to 8 U.S.C. § 1440, which provides an expedited path to

naturalization based on military service during designated periods of hostilities. They are

challenging a DOD policy adopted on October 13, 2017, that requires them to meet certain

durational and type of service requirements (“Minimum Service Requirements”) 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.).
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 based on military service. Plaintiffs bring claims under the

Administrative Procedure Act (“APA”) seeking to vacate the Minimum Service Requirements

because they are arbitrary and capricious; not in accordance with law; and in excess of statutory

jurisdiction; result in agency 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 these requirements. See Samma v.

U.S. Dep’t of Defense, No. 20-cv-1104, 2020 WL 4501000, at *10 (D.D.C. Aug. 4, 2020).

       Before the Court are the parties’ cross-motions for summary judgment. (See Pls. Mot. for

Summ. J., ECF No. 4 (“Pls.’ SJ Mot.”); Defs.’ Cross-Mot. for Summ. J., ECF No. 19 (“Defs.’ SJ

Mot.”).) For the reasons stated herein, the Court will grant plaintiffs’ motion for summary

judgment and vacate the Minimum Service 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-at-

large/13th-congress/c13.pdf (allowing noncitizens to enlist); Selective Service Act of 1948, Pub.

L. No. 80-759, §§ 3-4, 62 Stat. 604, 605-606 (authorizing the induction of male aliens).

Although the groups of noncitizens who have been allowed to enlist has varied over the years, at

this time the groups are defined in 10 U.S.C. § 504(b), which sets out the “Uniform Citizenship


                                                 2
and Residency Requirements for Enlistment in the Armed Forces that Congress first adopted in

2006. See National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163,

§ 542(a), 119 Stat. 3136.

        Two parts of § 504(b) are relevant to the present litigation. First, § 504(b)(1) provides

that: “A person may be enlisted in any armed force . . . if the person is . . . (B) An alien who is

lawfully admitted for permanent residence, as defined in section 101(a)(20) of the Immigration

and Nationality Act (8 U.S.C. 1101(a)(20)).” “The term ‘lawfully admitted for permanent

residence’ means the status of having been lawfully accorded the 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). Approximately 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 paragraph (1) if the Secretary determines that such person possesses

a critical skill or expertise--(A) that is vital to the national interest; and (B) that the person will

use in the primary daily duties of that person as a member of the armed forces.” 10 U.S.C.

§ 504(b)(2). In 2008, the Secretary of Defense utilized his authority under § 504(b)(2) to

authorize the Military Accessions Vital to the National Interest (“MAVNI”) Pilot Program. (See

AR 124.) The MAVNI Program allowed non-citizens who were not LPRs to enlist in the United

States military if it was determined that enlistment would be vital to the national interest because

they were “health care professionals” in certain specialties or possessed “critical foreign

language skills.” (AR 46 (Decl. of Stephanie Miller ¶ 4, July 7, 2017) (“7/7/17 Miller Decl.”).)


2
 Citations to the Administrative Record (“AR”) refer to the administrative record that was
prepared by the DOD for this case and provided to the Court on May 22, 2020. An index to the
AR is docketed at ECF No. 18.


                                                    3
MAVNI enlistments stopped in 2016, for reasons discussed in greater 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 Naturalized Citizenship Based on Military Service

        The service and sacrifice of noncitizens who serve in the United 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 if they declared an intent to

naturalize); Act of July 17, 1862, 37 Cong. ch. 200, 12 Stat. 594 (available at

https://www.loc.gov/law/help/statutes-at-large/37th-congress/session-2/c37s2ch200.pdf) (allowing

noncitizens who enlisted to become citizens upon being honorably discharged). Since the enactment

of the Nationality Act of 1940, however, paths to citizenship based 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) (“Nationality Act”).

        The Nationality Act provided that a “person . . . who has served honorably at any time in

the United States Army, Navy, Marine Corps or Coast Guard for a period or periods aggregating

three years and who, if separated from such service, was separated under honorable conditions,

may be naturalized . . .” without having to satisfy several of the otherwise applicable

requirements for naturalization. Id. The statute further provided “[a]ny such period or periods of

service under honorable conditions . . . shall be proved by duly authenticated copies of records of

the executive departments having custody of the records of such service.” Id. at 1149-50.




3
 The MAVNI Program is described 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”).


                                                   4
       In 1942, the Nationality Act was amended to add a new title that provided that those

“who ha[ve] served or hereafter serve[] honorably” in World War II and who have been lawfully

admitted to the United States were eligible to naturalize without 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 affidavits of at least two citizen

servicemembers “of the noncommissioned or warrant officer grade or higher . . . or by a duly

authenticated copy of the record of the executive department having custody of the record of

petitioner’s service, showing that the petitioner is or was during the present war a member

serving honorably in such armed forces.” Id. A later amendment that same year extended this

type of naturalization to those 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 eligibility 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 been in the United States or an outlying possession (including

the Panama Canal Zone, but excluding the Philippine Islands), or (2) at any time subsequent to

enlistment or induction such person shall have been lawfully admitted 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 following provision, which is at the heart of this case: “[t]he

executive department under which such person served shall determine whether persons have

served honorably in an active-duty status, and whether separation from such service was under

honorable conditions.” Id. Further, it altered the methods for proving honorable service,

eliminating the option of using an authenticated copy of a service record and replacing it with the

option of providing a “duly authenticated certification from the executive department under




                                                  5
which the petitioner is serving” that “states whether the petitioner has served honorably in an

active-duty status during either World War I or [World War II].”4 Id. at 282.

         In 1952, Congress replaced the Nationality Act with the Immigration and Nationality Act

(“INA”), Pub. L. No. 82-414, 66 Stat. 163 (1952), but it made no substantive changes in the law

with respect to naturalization based on military service, providing one route for persons who

served honorably at any time for periods aggregating three years, see INA § 328 (codified at 8

U.S.C. § 1439), and another route for persons who had served honorably in an active-duty status

during WWI or WWII. See INA § 329 (codified at 8 U.S.C. § 1440). Section 1440 maintained

the language from the Nationality Act that “[t]he executive department under which such person

served shall determine whether persons have served honorably in an active-duty status, and

whether separation from such service was under honorable conditions” and that “service in the

military, air, or naval forces of the United States shall be proved by a duly authenticated

certification from the executive department under which the petitioner served or is serving,

which shall state whether the petitioner served honorably in an active-duty status during either

World War I or during a period beginning September 1, 1939, and ending December 31, 1946,

and was separated from such service under honorable conditions.” Both § 1439 and § 1440

provided for revocation of citizenship “if at any time subsequent to naturalization the person is

separated from the military, air, or naval forces under other than honorable conditions, and such

ground for revocation shall be in addition to any other provided by law.” 8 U.S.C. §§ 1439(f),

1440(c).

         In 1961, § 1440 was amended to include persons who served in the Korean Conflict. See

Act of Sept. 25, 1961, Pub. L. No. 87-301, § 8, 75 Stat. 650. 654. Then, in 1968, § 1440 was


4
    The affidavit option remained unchanged.


                                                 6
amended to include those who served in the Vietnam War, as well as those who would serve in

future-designated periods of hostility. See Act of Oct. 24, 1968, Pub. L. No. 90-633, § 1, Oct.

24, 1968, 82 Stat. 1343-44 (coverage extended to “any other period which the President shall

designate by Executive Order as a period in which Armed Forces of the United States are or

were engaged in military operations involving armed conflict with a hostile foreign force”). To

date, the additional designated periods of hostilities have been 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 substantive changes to the INA’s provisions for

naturalization based on military service. First, § 1439 was amended to reduce the time-in-service

requirement from three years to one year. See National Defense Authorization 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 aggregating one year, and, who, if

separated from such service, was never separated except under honorable 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 Ready 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 member of the Selected Reserve of

the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United

States” during certain designated 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 resident




                                                  7
or if the person enlisted while in the United States or in certain 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 applicant must establish that 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 States . . . .”

(emphasis added)). Both § 1439 and § 1440 provide, as they have since 1952, that “[c]itizenship

granted pursuant to this section may be revoked . . . if the person is separated from the Armed

Forces under other than honorable conditions before the person has served honorably for a period

or periods aggregating five years.” 8 U.S.C. §§ 1439(f); 1440(c).

       C.      Immigration Laws and Regulations

       The INA provides that “[t]he sole authority to naturalize persons as citizens of the United

States is conferred upon the Attorney General,” 8 U.S.C. § 1421(a), but the authority to make

decisions on all naturalization applications has been delegated to the USCIS,5 including

applications based on military service pursuant to 8 U.S.C. § 1439 or § 1440.

       USCIS requires all applicants for naturalization to submit USCIS Form N-400

(“Application for Naturalization”). The application is first considered by a USCIS immigration

officer, who “conduct[s] a personal investigation of the person applying for naturalization” and

then “conduct[s] [an] examination” (often referred to as the “interview”). See 8 U.S.C. § 1446.

After the examination, the officer makes a decision to grant or deny the application. To be



5
 Prior to 2002, the Attorney General had delegated his naturalization authority to the
Immigration and Naturalization Service (“INS”). See 8 C.F.R. § 100.2 (1994). The Homeland
Security Act of 2002, Pub. L. No. 107–296, 116 Stat. 2135, abolished the INS and transferred its
naturalization authority to the Bureau of Citizenship and Immigration Services (now USCIS)
within the Department of Homeland Security. Prior to 1990, § 1421 provided that only courts
had the power to grant or deny naturalization applications. See 8 U.S.C. § 1421(a) (1952-1990).


                                                  8
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 disposed 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 district court, which “may either

determine the matter or remand, with appropriate instructions.” Id. § 1447(b). If the application

is denied, the applicant may request a hearing before another immigration officer. Id. § 1447(a).

If denied again, the applicant is entitled to judicial review by a district court. Id. § 1421(c).

       D.      Naturalization Based on Military Service

       DOD has no role to play in deciding whether to grant an application for naturalization

based on military service, but it must certify that an applicant 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 executive department under which the applicant served or is serving”); 8

U.S.C. § 1439(b)(3) (applicant under § 1439 must provide “a certified statement from the proper

executive department for each period of his service upon which he relies for the benefits of this

section, clearly showing that such service was honorable and that no discharges from service,

including periods of service not relied upon by him for the benefits 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 requires applicants for naturalization whose eligibility

rests on their military service to submit USCIS Form N-426 (“Request 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 based on one year of honorable military

service during peacetime or honorable service during a designated period of hostility must


                                                   9
complete and submit [Form N-400 and Form N-426].” (emphasis added)). 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 naturalized 129,587

members of the military. See https://www.uscis.gov/military/military-naturalization-statistics.6

As of May 2017, the average USCIS processing time for all military naturalization applications

was approximately four months 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 guidance that pertained to the

certification of N-426s. What it did have, as discussed in detail 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 manuals that

indicated that an N-426 could be certified after one day of service. (See Pls.’ SJ Mot. Exs. 9, 11-

13). Also, in 2009, the Army, in conjunction with USCIS, adopted a “Naturalization at Basic

Training Initiative” in order to provide expedited processing of naturalization applications for

noncitizen enlistees once they 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 received an N-426 before or

when he or she arrived at basic training. Then, “USCIS conducte[d] all naturalization processing



6
  Over the past 100 years, more than 760,000 noncitizens have enlisted and obtained citizenship
through military service. See Noncitizens in the U.S. Military, Migration Policy Institute Policy
Brief (May 2019) (available at https://www.migrationpolicy.org/research/noncitizens-us-
military-national-security-concerns-recruitment-needs).


                                                 10
including the capture of biometrics, the naturalization interview, 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 generally achieved, was for the naturalization process to be completed

by the end of [basic training],” typically around 10 weeks. (AR 48 (7/7/17 Miller Decl. ¶ 9));

Kirwa I, 285 F. Supp. 3d at 29; Nio I, 270 F. Supp. 3d at 55-56. Between 2009 and 2013, USCIS

expanded the Initiative to the Navy, Air Force, and Marine Corps. Kirwa I, 285 F. Supp. 3d at

29 n.9.

          The current litigation concerns the new N-426 policy that DOD adopted on October 13,

2017, but the events leading up to its issuance can be traced back 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 Defense authorized the

creation of the MAVNI Pilot Program, which allowed non-citizens who were not lawful

permanent residents to enlist in the United States military if it was determined that enlistment

would be vital to the national interest because they were “health care professionals” in certain

specialties or possessed “critical foreign language skills.” (AR 46 (7/7/17 Miller Decl. ¶ 4).)

Before 2016, MAVNI enlistees in the Army’s Selected Reserve (along with all other enlistees)

could expect to ship to basic training within approximately 180 days from the date of enlistment.

Then, once they arrived at basic training, they (along with all other noncitizen enlistees who

wanted to naturalize), would be able 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 Training Initiative, MAVNIs (and other noncitizens who sought to

naturalize) were usually able to complete the naturalization process before they left basic

training, i.e., within approximately 10 weeks. Id.


                                                 11
              1.      Enhanced Security Screening for MAVNIs and the September 30,
                      2016 DOD Memorandum)

       Since its inception, the MAVNI program has generated national security concerns within

DOD. As a result, DOD has sought to strengthen the security screening 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 requirements imposed on MAVNI

enlistees); (see also AR 50-51 (7/7/17 Miller Decl. ¶ ¶ 12-15)). The most significant change

came on September 30, 2016, when DOD, citing national security concerns, issued a

memorandum that provided that MAVNIs could not ship to basic training until DOD’s enhanced

security screening and its “military service suitability determination” (“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 phase” and the ‘adjudicatory phase.” See Nio II, 385 F. Supp. 3d at
51-52. The investigatory phase includes the enhanced security screening, which generates
information about the enlistee, while 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 investigatory phase, DOD’s Central Adjudication Facility makes a “military
service suitability recommendation” (“MSSR”). See id. The MSSR is provided to the military
service (e.g. the Army), which then 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 recruits [had to]
complete four vetting requirements to receive a[n] [MSSD]: (1) either a Tier 3 or Tier 5
background investigation (based on assessment of their counterintelligence risk profile, (2) a
National Intelligence Agency Check (NIAC), (3) a CI-focused security review (CIFSR), and (4)
an issue-oriented interview and/or issue-oriented polygraph, if needed to resolve any foreign
influence or foreign preference concerns.” (AR 33 (Decl. of Stephanie Miller, July 28, 2017)
(“7/28/17 Miller Decl.”).)
9
 Although the MAVNI program was formally extended through September 30, 2017, in fact the
program stopped accepting new recruits in June 2016. See Nio II, 385 F. Supp. 3d at 51 n.7.


                                               12
MAVNIs’ enlistment and their shipping to basic training.10 See Nio II, 385 F. Supp. 3d at 52.

That, in turn, caused considerable delay, sometimes amounting to 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 Delayed Training Program

(“DTP”),11 however, were already serving because they were participating in drilling with their

reserve unit while they waited for their security screening and MSSD to be completed. See Nio,

385 F. Supp. 3d at 52. As the time to ship grew increasingly lengthy in late 2016 through mid-

2017, approximately 500 MAVNIs requested 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 file their applications for citizenship. Id.

               3.      USCIS’s July 7, 2017 Guidance

       When DOD learned in early 2017 that MAVNI Reservists were obtaining N-426s before

completing their enhanced security screening, the DOD, in collaboration with USCIS, put a

“hold,” in April 2017, on naturalizing the MAVNIs who had already 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 to allow a MAVNI naturalization applicant to proceed to

interview until “all enhanced DOD security checks are completed” because “USCIS has

determined that the completion of DOD background checks is relevant to a MAVNI recruit’s


10
  In October 2017, DOD’s estimated time for completing just one part of the enhanced security
screening (the Tier 5 investigation) 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 attend drill periods for pay and
benefits . . . during the period prior to assignment to initial military training (also known as basic
training.” (AR 34 (7/28/17 Miller Decl.).)


                                                  13
eligibility for naturalization,” specifically 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 naturalization of MAVNI Reservists, 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 to MAVNI Reservists who were drilling in the DTP, because it

took the view that active duty (i.e. basic training) was a necessary 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 of the Army Reserve issued a

memorandum that stated: “Effective immediately, I withhold authority to certify the honorable

service (N-426) of Soldiers who have not yet attended Initial Entry Training (IET).”12 Nio I, 270

F. Supp. 3d at 60. This order, which formally blocked the approximately 2,000 MAVNIs who

had enlisted in the Army’s Selected Reserve and were drilling in 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 first “formal guidance” pertaining to the

certification of N-426s (“N-426 Policy”). (See AR 6-9.) The N-426 Policy applies to all

noncitizen service members (LPRs and MAVNIs) serving in Active Components (Army, Navy,

Air Force, Marines, and Coast Guard) 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 Training includes both Basic Combat Training (“boot camp”) and
Advanced Individual Training.


                                                14
Section I applies to individuals who enlisted or accessed after October 13, 2017; Section II

applies to individuals who enlisted or accessed before October 13, 2017. Section III provides for

the revocation of previously issued N-426s under certain circumstances.

               1.      Section I

                       a.     Minimum Service Requirements

       In this litigation, the critical part of the N-426 Policy is found in Section I, paragraph 3,

which sets out the “Military Training and Required Service” criteria that an individual who

enlisted or accessed after October 13, 2017, must meet. Service members covered by Section I

include LPRs and MAVNIS in Active Components and LPRs in the Selected Reserve of the

Ready Reserve (but not MAVNI Reservists since they enlisted and accessed before October 13,

2017). The purpose of these criteria, as stated in the N-426 Policy, 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” (“Active Minimum Service

Requirement) and one for “Service Members in the Selected Reserve of the Ready Reserve”

(“Reservist Minimum Service Requirement”). The Active Minimum Service Requirement

provides that a service member in an Active Component can only obtain a certified N-426 if that

service member has:

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

              Completed at least 180 consecutive days of active duty service, inclusive
               of the successful completion of basic training . . . .

The Reservist Minimum Service Requirement provides that a service member in the Selected

Reserve of the Ready Reserve can only obtain a certified N-426 if that service member has:

              Successfully completed the basic training requirements of the armed


                                                 15
               forces of which he/she is a member; AND

              Completed at least one year of satisfactory service toward non-regular
               retirement in accordance with [DODI] 1215.07, “Service Credit for Non-
               Regular Retirement,” as a member of the Selected Reserve, inclusive of
               the member’s successful completion of basic training . . . .

The minimum time-in-service requirements for all service members and the imposition of an

active duty requirement for Reservists are the focus of this litigation.

                       b.      Screening and Suitability Requirements

       Section I, paragraph 2, of the N-426 Policy provides that service members must

“complete[] applicable screening and suitability requirements” before they can obtain a certified

N-426. Those requirements are different for MAVNIs and LPRs. MAVNIs must:

       [be] the subject of a completed National Intelligence Agency Check (NIAC); Tier
       3 or Tier 5 Background Investigation, as applicable; counterintelligence-focused
       security review; counterintelligence interview; and a[n] [MSSD], favorably
       adjudicated in accordance with the 9/30/2016 DOD Memorandum] and
       OUSD(P&R) memorandum of October 13, 2017, Military Accessions Vital to the
       National Interest Pilot Program.13

LPRs must:

       have met prescribed screening requirements set forth in Department of Defense
       Instruction 1304.26, “Qualification Standards for Enlistment, Appointment and
       Induction,” and other applicable DoD or Military Department policy, and are the
       subject of a favorably adjudicated MSSD . . . .

However, for several reasons, these screening and suitability requirements 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 policy guidance
regarding the management of Service members accessed through the 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 and now by statute, see
10 U.S.C. § 504(b)(3)(A), may not ship to basic training until they have completed these same

                                                 16
                  2.      Section II

          Section II of the N-426 Policy applies to service members who enlisted or accessed

before October 13, 2017 (which includes all MAVNI Reservists). Section II differs from Section

I only with respect to “Military Training and Required Service,” because it imposes no specific

requirements as to the time or manner of service15 (i.e. no active duty requirement and no

minimum time-in-service requirement).16


screening and suitability requirements. Thus, MAVNIs will necessarily have completed all the
N-426 screening and suitability requirements before they have served for even a single day, i.e.,
before they could ever be eligible for an N-426. As a result, plaintiffs do not challenge the
screening and suitability requirements for active MAVNIs.
With respect to LPRs, the screening and suitability requirements in the N-426 policy are no
longer being enforced by DOD due to a series of events related to these same requirements in an
independent DOD policy. Briefly, on the same day it issued the N-426 Policy, DOD issued
another policy that required LPRs, for the first time, to complete security screening and have a
favorable MSSD before shipping to basic training. (AR 10-11 (“LPR Screening/MSSD Policy”).
The delays in ship dates caused by the LPR Screening/MSSD Policy (which led to delays in
LPRs ability to apply for naturalization) led to litigation. An 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 opted not to resume enforcement of the LPR Screening/MSSD Policy,
replacing it as of July 30, 2019, with a new “Expedited Screening 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, before a recruit can ship basic training. (Id.) DOD has thus
stopped requiring that LPRs (both Actives and Reservists) complete any security screening or
have a favorable MSSD to obtain a certified N-426. (See Defs.’ 7/1/20 Supp. Br. at 3; Defs.’
Supp. Br. at 8, July 10, 2020, ECF No. 34.) Since there is no requirement that LPRs must
complete any type of security screening or suitability determination 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 Service: The Service Member has served in a
          capacity, for a period of time, and in a manner that permits an informed
          determination that the member has served honorably as a member of the Selected
          Reserve of the Ready Reserve or member of an active component of a military or
          naval force of the United States, as determined by the Secretary of the Military
          Department concerned.

(AR 8.)
16
     As discussed further infra, the Kirwa case concerned the “applicable screening and suitability


                                                  17
                 3.      Section III

          Section III provides for the revocation of already issued N-426s if the service member

accessed prior to October 13, 2017, had submitted a naturalization application to USCIS that had

not yet been granted, and the service 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 Department concerned” or, if delegated 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 Policy that provides: “Upon receipt

from a qualified applicant of [USCIS] Form N-426, ‘Request for Certification of Military or

Naval Service,’ the certifying official will process it with priority and return it to the Service

member concerned within 30-days of submission.”18 (AR 1.) As represented by defense

counsel,”[a]ccording to officials within DOD’s Office of the Under Secretary for Personnel and

Readiness, the 30-day time period contemplated by the April 24, 2020 policy update begins




requirements” that applied to MAVNI 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 National Defense Authorization Act for
Fiscal Year 2020 (“2020 NDAA”), which provides that the:
          Secretary of Defense shall publish regulations for submission and processing of a
          completed United States Citizenship and Immigration Services Form N-426, by a
          member of the Armed Forces. Such regulations shall designate the appropriate
          level for the certifying officer as well as establish time requirements for the form
          to be returned to the member of the Armed Forces.

133 Stat. 1198, 1356 (2019) (codified at 10 U.S.C. § 1781, Note).


                                                   18
when the first person in the chain of command receives the N-426 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 delay in the processing of

N-426 requests, but as explained in this Court’s opinion on class certification, in light of the

April 24, 2020 update, there is no named plaintiff with standing to challenge the O-6

Requirement. See Samma, 2020 WL 4501000, at *5-6. Accordingly, those claims have been

dismissed.

III.   MAVNI-RELATED LITIGATION

       Section I of the N-426 Policy, as it applies to active duty MAVNIs 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 given to the MAVNI Reservists under Section III, and USCIS’s

refusal, as set forth in the July 7, 2017 Guidance, to process a naturalization application unless

the MAVNI had completed both the security screening during the investigatory stage and the

suitability or MSSD determination made during the adjudicatory phase. See supra n.7.

       A.      Kirwa

       The Kirwa plaintiffs were MAVNI Reservists who had been drilling in the DTP while

they waited to ship to basic training. They had sought but had been unable to obtain certified N-

426s. They filed suit in September 2017, after the Army’s August 17, 2017 Memorandum

formally ordered that no N-426s would be issued before a reservist started basic training, and

they challenged that policy as unlawfully imposing an active duty requirement in contravention

of § 1440. (Compl., Kirwa, ECF No. 1.) They also filed a motion for a preliminary injunction.

The Court initially collapsed the motion for a preliminary injunction with a hearing on the merits


                                                 19
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 serving in the Selected Reserve

contravene § 1440? Shortly before that issue could be fully briefed, DOD abruptly changed

gears and issued the October 13, 2017 N-426 Policy. Section II of that policy applied to the

Kirwa plaintiffs. Contrary to prior representations by DOD, the policy 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 Court 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 plaintiffs were likely to succeed on their claim that the security

screening and suitability requirements in Section II for issuance 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 naturalization 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 violated § 706(1) of the APA because DOD had a duty to certify N-

426s based on existing service records. Id. at 41-42. Accordingly, the 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 the Selected Reserve’s DTP and

had not received a certified N-426. Id. at 21. Specifically, DOD was enjoined from “refusing to

sign and issue Form N-426s to members of the Selected Reserve pursuant to Section II of DOD’s

October 13, 2017 Guidance,” and from “refusing to certify MAVNI enlistees who have served

for one day or more in the Selected Reserve as having honorable service, except as related to the

conduct of an individual plaintiff or class member as reflected in that soldier’s service record and

based on sufficient grounds generally applicable to all members of the military.” Amended




                                                20
Order at 1, Kirwa, ECF No. 32. It also ordered that “after members of the provisionally-certified

class submit or resubmit N-426s to their military officer ranked O6 or higher, defendants should

use their best efforts to certify or deny Form N-426s, as was done for the Nio plaintiffs, within

two business days of receipt of Form N-426.” Id. at 1-2. Further, the Court granted plaintiffs’

unopposed motion for class certification, certifying a class that “consists of all persons who (1)

have enlisted in the U.S. military through the Military Accessions Vital to the National Interest

(“MAVNI”) program prior to October 13, 2017, (2) have served in the Selected Reserve of the

Ready Reserve (“Selected Reserve”), and (3) have not received a completed and duly

authenticated Form N-426.” 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 appealed 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 have been requested and issued in the last

eight months. See id.; Status Report, Kirwa, Jan. 2, 2020, ECF No. 201. Generally, DOD has

been able to comply with a two-day turnaround from submission of 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 achieve 2-day turnaround ordered by Court), and once a

Kirwa class member receives a certified N-426, he/she becomes part of the Nio class.

       B.      Nio

       The plaintiffs in Nio were MAVNI Reservists who had obtained certified N-426s based

on one or more days of drilling while in the DTP and who had filed applications for

naturalization, but whose applications were not being processed by USCIS due to the informal

“hold” agreed to by USCIS at DOD’s request, pending DOD’s completion of its security

screening and suitability determinations. They filed suit in May 2017 against DOD and


                                                21
DHS/USCIS, challenging the hold, on their own behalf and on behalf of a putative class. See

Compl. Nio, ECF No. 1. Then, USCIS issued the July 7 Guidance, causing plaintiffs to amend

their complaint and their motion for a preliminary injunction to challenge that Guidance. They

also added a challenge to DOD’s ongoing review of its N-426 “policy” and what appeared to be

its current position that active duty was required to be eligible for a certified N-426. Nio I, 270

F. Supp. at 61.

          The Court denied plaintiffs’ motion for a preliminary injunction, finding that DOD’s

review of its N-426 policy did not pose an imminent threat of harm to the plaintiffs and that they

were not likely to succeed on the merits of their claim that USCIS’s July 7 Guidance was

arbitrary and capricious in light of the national security concerns 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 individuals who had not yet completed DOD’s enhanced security

screening and suitability determinations. The Nio plaintiffs again amended 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 granted plaintiffs’ motion for class certification,

certifying a class to challenge (1) DHS’s/USCIS’s decision in the July 7 Guidance to await

DOD’s completion of the enhanced security screening of MAVNI enlistees; 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 motion for a preliminary injunction as to Section III, for the


19
     The certified class in Nio
          consists of all persons who have (i) enlisted in the Selected Reserve through the
          MAVNI program prior to October 13, 2017; (ii) served honorably with a Selected

                                                  22
same reasons it enjoined the application of Section II in Kirwa. See Order, Nio, Oct. 27, 2017,

ECF No. 74. As with the preliminary 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 plaintiffs, 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 purported reasons for waiting for these military suitability

adjudications do not comport with the evidence before the Court.” Nio II, 385 F. Supp. 3d at 47.

Specifically, the Court found that USCIS could not wait for DOD’s MSSD because the

adjudicatory phase of DOD’s process did not generate any new information that would be

relevant to USCIS’s decision on whether an applicant satisfied the requirements for

naturalization. See id. at 67. Moreover, not only did the adjudicatory process not render any

relevant information, if an enlistee received an unfavorable MSSD before completing 180 days

of service, he or she necessarily received an uncharacterized discharge,20 and USCIS

automatically rejected these applicants as not having received an honorable discharge and thus



       Reserve unit through participation in at least one qualifying drill period or served
       in an active-duty status; (iii) submitted N-400 Applications for Naturalization; (iv)
       been issued Form N-426s certifying honorable service as a member of the
       Selected Reserve or in active-duty status; and (v) have had the processing or final
       adjudication of their naturalization applications (including naturalization itself)
       withheld or delayed because of (a) a final USCIS processing hold for MAVNIs,
       (b) a DOD N-426 policy review, (c) a DOD N-426 recall/decertification policy,
       (d) enhanced DOD security screenings, (e) a DOD CAF adjudication, (f) a
       national security determination, and/or (g) military service suitability vetting
       determination.

Order, Nio, Oct. 27, 2017, ECF No. 72.
20
   In the military, a service member remains in “entry-level” status 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 discharge is not characterized as honorable or other than honorable,
but rather by the neutral “uncharacterized” classification. Id.


                                                23
ineligible for naturalization. Id. at 64-65. Given this scenario, the Court concluded that USCIS

had abdicated its statutory duty to “conduct its own investigation 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 defendants to file periodic reports on the status of

the naturalization applications filed by Nio class members. See Order, Nio, ECF No. 259.

       At the time Nio was filed, there were an estimated 2,400 MAVNI Reservists in the

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 them since the Court’s ruling on May 22, 2019. See Status

Report at 2, Nio, ECF No. 301. Currently, there are only 68 class members with pending

naturalization applications,21 26 of whom have already been interviewed 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 interviewed or been scheduled for an
interview. Id.
22
   Two other MAVNI cases on this Court’s docket merit brief mention. First, there is Calixto,
which was filed by a putative class of MAVNIs who had been discharged from the Army, either
from the Army’s Delayed Entry Program 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 Department of the Army, claiming that
when they were discharged, the Army violated Army and DOD regulations, as well as the
soldiers’ procedural due process rights. Id. at *1.
The last case is Miriyeva, which was filed by MAVNIs whose applications for naturalization had
been denied because they had received “uncharacterized” discharges, 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 challenged USCIS’s
“policy” under the APA and the Constitution. Id. The Court granted defendants’ motion to
dismiss for lack of jurisdiction on the ground that 8 U.S.C. § 1421, which provides for judicial
review of the denial of a naturalization application, precluded the plaintiffs’ claims. Id. The

                                                 24
IV.    SAMMA’S PROCEDURAL HISTORY

       On April 28, 2020, six individuals who are noncitizens currently serving in the United

States Armed Forces, on their own behalf and on behalf of a putative class, sued DOD and its

Secretary, Mark Esper, claiming that the N-426 Policy was unlawfully preventing them from

obtaining certified N-426s and submitting applications for naturalization. (See Compl., ECF No.

1.) Plaintiffs brought claims under the APA, challenging the N-426 Policy as arbitrary and

capricious, see 5 U.S.C. § 706(2)(A); not in accordance with law, 5 U.S.C. § 706(2(A); in excess

of statutory jurisdiction, see 5 U.S.C. § 706(2)(C); results in unlawfully withheld and

unreasonably delayed agency action, see 5 U.S.C. § 706(1); and was enacted without notice and

comment, see 5 U.S.C. § 553; 5 U.S.C. § 706(2)(D). With their complaint, plaintiffs filed a

motion for preliminary injunction, which was converted into a motion 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 clarified their claims and limited them to Section I and to their

challenge to the O-6 Requirement and the Minimum Service Requirements.23

       During the course of briefing, defendants reported that since the complaint was originally

filed, five of the six named plaintiffs had received N-426s, rendering their claims moot, and

leaving Ahmad Isiaka24 as the only named plaintiff with a live claim. Samma, 2020 WL



plaintiffs’ appeal is pending before the D.C. Circuit.
23
  As noted, plaintiffs initially considered a challenge to the security screening and suitability
requirements, but they ultimately abandoned that attack once it became apparent, as previously
explained, see supra n.14, that those requirements were not impeding their ability to obtain a
certified N-426. Id.
24
  Isiaka is an LPR who enlisted in 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.)


                                                 25
4501000, at *3. Plaintiffs then amended their complaint on June 8, 2020, adding two new

plaintiffs, Timotius Gunawan25 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 class certification and the

cross-motions for summary judgment. After the argument, plaintiffs 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. Defendants advised the

Court that Isiaka had received an N-426 in error, signed by a commander who was “unaware of

the N-426 policy,” but that the Army did not intend to revoke it and that their position is that

Isiaka cannot represent the Reservist subclass because his claim is now moot. (Defs.’ 7/28/20

Supp. Br. at 4.) On July 29, 2020, Gunawan, in another apparent error because he had not yet

met the Active Minimum Service Requirements, received a certified N-426. (See Pls.’ Notice

Regarding Pl. Timotius Gunawan, July 31, 2020, ECF No. 43.)

       On August 4, 2020, the Court granted plaintiffs’ motion for class certification in part.

Samma, 2020 WL 4501000, at *10. The Court concluded that (1) no plaintiff had standing to

challenge the O-6 Requirement; (2) the claims of the five plaintiffs who received their N-426s

before the filing of the amended complaint should be dismissed as moot; and (3) even though

Isiaka and Machado received certified N-426s before the Court issued its ruling on class

certification, the “relation-back” doctrine should be applied, allowing them to be appointed as



25
  Gunawan is an LPR who enlisted in the U.S. Navy in November 2019. (Am. Compl. ¶ 25.)
He shipped to basic training in February 2020, and he is currently serving on active duty. (Id.
¶ ¶ 25, 130, 131.)
26
   Machado is an LPR who enlisted in the U.S. Air Force in October 2019. (Am. Compl.
¶ ¶ 26.) He shipped to basic training in January 2020, and he is currently serving on active duty.
(Id. ¶ ¶ 26, 137, 138.)


                                                 26
class representatives even though their individual claims are technically moot.27 Id. at *5-7. The

Court certified two subclasses: one to challenge the Active Minimum Service Requirement,

represented by Gunawan and Machado, and one to challenge the Reservist Minimum Service

Requirement, represented by Isiaka. Id. at *10. Plaintiffs’ counsel have been appointed as Class

Counsel. Id.

       The issue now before the Court is whether DOD’s Minimum Service Requirements

violate the APA. There are two such requirements under Section I of the N-426 Policy:

       (1) The Active Minimum Service Requirement provides that MAVNIs and LPRs
       who serve in an Active Component must complete at least 180 consecutive days
       of active duty service, inclusive of the successful completion of basic training,
       before they can obtain an N-426.

       (2) The Reservist Minimum Service 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 for Non-Regular
       Retirement,” as a member of the Selected Reserve, inclusive of the member’s
       successful completion of basic training, before they can obtain an N-426.

(AR 7-8.)

                                            ANALYSIS

       Plaintiffs claim that the Minimum Service Requirements in the N-426 Policy violate the



27
   The Court certified a class consisting of “all individuals who: (a) are noncitizens 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 Selected 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 into an “Active Subclass” and a “Reservist Subclass.” The Active
Subclass includes all individuals in the Class who are noncitizens serving in an Active
Component of the U.S. military and have not satisfied the Active Minimum Service
Requirements in Section I.3.a of the N-426 Policy. The Reservist Subclass includes all
individuals in the Class who are lawful permanent residents (LPRs) serving in the Selected
Reserve of the Ready Reserve and have not satisfied the Reservist Minimum Service
Requirements in Section I.3.b of the N-426 Policy, excluding the 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).


                                                 27
APA. Defendants disagree, arguing first that the N-426 Policy is not subject to APA review

because it concerns matters that are “committed to agency discretion by law,” or, in the

alternative, if the N-426 Policy is reviewable, none of plaintiffs’ APA claims have merit. The

Court will first address reviewability and then, because it concludes that the challenged agency

action is reviewable, turn to plaintiffs’ APA claims.28

I.     REVIEWABILITY

       The APA provides that “[a] person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the meaning of a relevant statute, is

entitled to judicial review thereof.” 5 U.S.C. § 702. The Supreme Court has long interpreted the

APA as embodying a “ basic presumption 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 if 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 challenge the N-426 policy under the APA

because it is an agency action that is committed to agency discretion by law.29 As defendants

recognize, this Court has rejected this argument on two prior occasions. See Kirwa I, 285 F.


28
   Federal Rule of Civil Procedure 56(a) requires a court to grant summary judgment “if the
movant shows that there is no genuine dispute as to any material 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 reviewing 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 administrative 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 the 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 press that argument here.


                                                28
Supp. 3d at 35-39 (D.D.C. 2017); Kirwa II, 285 F. Supp. 3d at 266-68. But defendants urge the

Court to reconsider its conclusion, 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 Circuit 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 the issue. But in

the end, it reaches the same conclusion—the N-426 Policy is reviewable 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 traditionally 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 applied in “those rare circumstances where the relevant statute

is drawn so that a court would have no meaningful standard against 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 issue—which they define as the

“certification of a service member’s service as honorable”—is the type of decision “to which

courts have routinely deferred” because it requires “military expertise” or “military judgment.”

(Defs.’ SJ Mot. at 17-18 (“the military characterizes service to ensure proper military discipline

and control” and “determinations requiring military expertise are not proper subjects of judicial

intervention”).) To support their argument, defendants rely on cases where courts have refused

to review the military’s characterization of service upon discharge, see Patterson v. Lamb, 329




                                                 29
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 decisions, see, e.g., Dist. No. 1, Pac.

Coast Dist., Marine Eng’rs’ Beneficial Ass’n v. Mar. Admin., 215 F.3d 37, 41–42 (D.C. Cir.

2000) (declining to review military’s decisions about base closures and realignments given that

“the primary factors driving the . . . decision are national defense, 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 “judges are not given the task of

running the Army”).

       Defendants’ reliance on these two lines of caselaw is misplaced. First, as discussed

further herein, see infra Section II.A.1.c (Analysis), there is a critical distinction between a

characterization of service for purposes of discharge—which implicates the “internal

management” of the military, see Davis, 111 F.2d at 525—and a characterization of service for

purposes of naturalization, which does not. Second, unlike Dist. No. 1 and Orloff, this case does

not involve a military decision that affects military operations and thus indisputably requires

military expertise. Rather, the administrative decision at issue concerns the military’s obligation

to certify whether a service member is serving or has served honorably for purpose of

establishing that member’s eligibility for naturalization under § 1440. Moreover, the actual

administrative decision at issue is not DOD’s decision as to any individual service member, but

rather its decision to adopt the N-426 Policy and, as part of that policy, to impose Minimum

Service Requirements as a precondition to making any decision as to whether an individual has

served honorably. Properly described, the administrative decision here is a DOD policy that

interprets an immigration statute, not a decision that requires military expertise or judgment.




                                                  30
       Nor is the decision similar in any way to the categories of decisions 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 decision not to institute enforcement proceedings); Webster v.

Doe, 486 U.S. 592, 600-01 (1988) (a decision by an intelligence agency 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 appropriation). Two recent Supreme Court 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 not one of those areas traditionally committed to agency

discretion.”); Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. at 1907

(“Because the DACA program is more than a non-enforcement policy, its rescission is subject to

review under the APA.”). As the Court observed in Kirwa, “while courts should exercise caution

when adjudicating claims involving matters of military affairs and national security, that caution

does not give DOD carte blanche authority to act in contravention of . . . applicable statutes.”

Kirwa II, 285 F. Supp. 3d at 265–66. Where, as here, the challenged policy does not in fact

“relat[e] to military discipline and military operations,” there is no reason to “defer to the

judgment of those who must lead our Armed Forces in battle.” North Dakota v. United States,

495 U.S. 423, 443 (1990) (no deference due to military’s interpretation of federal law allocating

power between federal and state governments on civilian commercial issues).

       Accordingly, the Court concludes that DOD’s N-426 Policy is not the type of agency

action that is unreviewable because it falls within a category of decisions that have traditionally

been committed to agency discretion.

       Defendants also argue that the N-426 Policy is unreviewable because 8 U.S.C. § 1440

sets forth “no meaningful standard” by which to judge DOD’s determination as to whether a




                                                  31
service member “ha[s] served honorably.” (Defs.’ SJ Mot. at 16 (quoting 8 U.S.C. § 1440(a)).)

Again, DOD’s premise is flawed. The administrative action at issue is not simply a DOD policy

that defines what constitutes honorable service, but a DOD policy that establishes preconditions

that a service member must satisfy before DOD will even consider whether to certify that the

individual has served honorably for purposes of applying for naturalization pursuant to § 1440.

As the Court found in Kirwa, and as is apparent from the Court’s discussion later in this opinion,

see infra Section II.B (Analysis), the language and structure of § 1440, and the broader statutory

scheme for naturalization of which § 1440 is just one part, provide meaningful standards for

reviewing that action. See Kirwa I, 285 F. Supp. 3d at 35-38.

       Finally, contrary to defendants’ 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 completed background

investigation before they could ship to basic training. Kuang v. U.S. Dep’t of Def., 340 F. Supp.

3d 873, 890 (N.D. Cal. 2018). The district court preliminarily enjoined the policy based on the

plaintiffs’ APA claim that the policy was arbitrary and capricious. Id. at 919, 922. In reaching

its conclusion, the district court rejected the argument that military considerations rendered the

policy unreviewable or that the APA 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 arbitrary 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 reviewable,” a court
must consider “(1) the nature and strength of the plaintiffs’ claim, (2) the potential injury to the
plaintiffs if review is refused, (3) the extent to which review would interfere with military

                                                 32
1971)). Thus, the Ninth Circuit did 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, as 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 intertwines

the concept of justiciability 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 within that category of “military

decisions about national security and personnel [that] are inherently 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 Court to alter its analysis.

       In Kotab, the N-426 Policy was at issue, and the district court concluded that it was both

unreviewable under Mindes and “committed to agency discretion by law.” The Mindes test, as

previously noted, has not been adopted 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 court’s

explanation of its conclusion is entirely focused on the absence of a standard to judge whether




functions, and (4) the extent to which military discretion or expertise is involved.” Kuang, 778
F. App’x at 421.


                                                  33
DOD should certify that an individual has served honorably. But that is not the critical issue

here—the question is whether there is a meaningful standard by which to judge when DOD

should so certify. As explained supra, the Court finds a meaningful standard in § 1440, in

conjunction with the entire INA, for reviewing the DOD’s decision as to “when” it will

determine whether an individual has, or has not, served honorably.

       Accordingly, the Court finds that the N-426 Policy is not that rare agency action that is

unreviewable because it is committed to agency discretion by law.

II.    PLAINTIFFS’ APA CLAIMS

       The Court now turns to plaintiffs’ challenges to the Minimum Service 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 statutory jurisdiction, see 5 U.S.C.

§ 706(2)(A), (C); (3) result in agency action unlawfully withheld and unreasonably delayed, see

5 U.S.C. § 706(1); and (4) were enacted without notice and comment. 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 factors which Congress has not intended it to consider,
       entirely failed to consider an important aspect of the problem, offered an
       explanation for its decision that runs counter to the evidence before the agency, or
       is so implausible that it could 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 an agency to “examine the relevant data and articulate a

satisfactory explanation for its action including a rational connection between the facts found and

the choice made.” Id. (citation and internal quotation marks omitted); see also Am. Wild Horse


                                                34
Pres. Campaign v. Perdue, 873 F.3d 914, 923 (D.C. Cir. 2017) (“Th[e arbitrary and capricious]

standard obligates the agency to examine all relevant factors and record evidence, and to

articulate a reasoned explanation for its decision.”). The agency’s explanation must show “‘why

it has exercised its discretion in a given manner’” and “must be ‘sufficient to enable [a court] to

conclude that the [agency’s action] was the product of reasoned decisionmaking.’” Owner-

Operator 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 explanation for it.” Am. Wild

Horse Pres. Campaign, 873 F.3d at 923; see also Lone Mountain Processing, Inc. v. Sec’y of

Labor, 709 F.3d 1161, 1164 (D.C. Cir. 2013) (“[A]n agency changing its course must supply a

reasoned analysis indicating that prior policies and standards are being deliberately changed, not

casually ignored. Failing to supply such analysis renders the agency’s action arbitrary and

capricious.” (internal quotation marks and citation omitted)). While the obligation to explain a

change does not require an agency to “always provide a more detailed justification than what

would suffice for a new policy created on a blank slate,” the agency must at least “display

awareness that it is changing position” and “show that there are 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 action under this standard “is narrow 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 substantive reasonableness of its

decision,” and in so doing the court must make a “‘thorough, probing, in-depth review’ to




                                                 35
determine if the agency has considered 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 Policy is arbitrary and capricious because defendants

failed to explain the change from “DoD’s longstanding practice of certifying honorable service

based solely on whether non-citizens have served honorably at the time DoD completes their N-

426” to the Minimum Service Requirements, which contain both a durational component and an

active duty component. (Pls.’ SJ Mot. at 23.) Defendants contest (1) plaintiffs’ view of DOD’s

prior practice and (2) plaintiffs’ claim that defendants have failed to provide a reasoned

explanation for the N-426 Policy. (Defs.’ SJ Mot. at 27-29; see also Defs.’ SJ Reply at 15-17.)

               1.      Prior Practice regarding N-426 Certification for LPRs and MAVNIs

       The Court must first track defendants’ past practice of certifying N-426s for noncitizen

enlistees. As detailed below, this practice evolved starting with amendments made to § 1440.

                       a.      1968-1970

       The 1968 amendment to § 1440 was passed “to provide for the expeditious naturalization

of aliens who have served in an active-duty status in the Armed Forces of the United States

during the Vietnam hostilities or during any other [future designated 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 amendment 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’ service[;] the wartime serviceman

has no minimum required.” Id. at 4-5 (emphasis added).




                                                 36
       Consistent with this goal of expedited citizenship, in 1970 DOD established regulations

and guidance that applied to “an alien who serves honorably on active duty in the Armed Forces

of the United States” during a designated period of hostility and required that:

       each qualifying alien shall be advised of the liberalized naturalization provisions
       of [§ 1440], i.e., that the usual naturalization requirements concerning age,
       residence, physical presence, court jurisdiction and waiting periods are not
       applicable, and will be given appropriate assistance in processing his
       naturalization application . . . .

32 C.F.R. 94.4(b)(2) (emphasis added); DOD Directive 5500.14, at 4.2.1, 4.2.2. Both provisions

also required that “[m]ilitary basic training and orientation programs will include advice and

assistance to interested aliens in completing and submitting the 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 establish no minimum time-in-

service for eligibility to naturalize, and DOD was committed to assisting noncitizen enlistees in

completing and submitting their naturalization applications while at basic training.31

                       b.     2003-2016

       In 2003, Congress again broadened the group of noncitizen service members who could

benefit from the INA’s expedited naturalization provisions. First, Congress shortened the time-

in-service requirement of § 1439 from three years to one year. 117 Stat. 1691. Second,

Congress extended the benefit of § 1440 to anyone “serv[ing] honorably 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 Congressional Record relating to

the 2003 amendment, Senator Kennedy, the co-sponsor of the legislation, stated:

       Being a member of the Selected Reserves is nothing less than a continuing

31
   Both provisions are still in effect today, although the DOD Directive was canceled and
reissued as the DODI in 2006. See DODI 5500.14, at 1.



                                                37
         commitment to meet very demanding standards, and they deserve recognition for
         their bravery and sacrifice. The amendment allows permanent resident members
         of the Selected Reserves to expedite their naturalization applications during war
         or military hostilities.

149 Cong. Rec. S7,280–83 (daily ed. June 4, 2003). Senator Chambliss echoed this sentiment:

         [T]he amendment provides a process of immediate naturalization for our selected
         reserve Armed Forces serving during a time of hostility. In today’s military, we
         rely heavily and strategically on our reservists, and it is only 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, Senator Brownback stated:

         [T]he amendment remembers those courageous men and women who ensure that
         in times of war or hostility, our country is ready and our recruiting needs are met,
         by saying that members of the Reserves or National Guard will have expedited
         naturalization during times of war or hostile military operations.

Id. Thus, beginning in 2003, § 1440 offered the same path to expedited 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 any particular length of time” “not only to individuals

who served honorably in an active duty status during specified periods of hostilities, but also to

individuals who have served honorably as members of the Selected Reserve of the Ready

Reserve of the U.S. Armed Forces during such periods of hostilities.” Naturalization of Certain

Persons in the U.S. Armed Forces, 75 Fed. Reg. 2,785, 2,785 (Jan. 19, 2010) (codified at 8

C.F.R. Parts 328 and 329). Accordingly, since 2010, USCIS regulations have provided that

         [t]o be eligible for naturalization under [§ 1440], an applicant must establish that
         he or she . . . [h]as served honorably in the Armed Forces of the United States as a
         member of the Selected Reserve of the Ready Reserve or in an active duty status
         in the Armed Forces of the United States during [a designated period of
         hostilities].


32
     Because the MAVNI Program was not authorized until 2008, § 1440 applied only to LPRs.



                                                  38
8 C.F.R. 329.2(a).

       The USCIS Policy Manual, first published in 2013, provided more detailed guidance on

the prerequisites for naturalization under § 1440. The Manual stated that “‘[o]ne day of

qualifying service [wa]s sufficient in establishing eligibility.’”33 Nio II, 385 F. Supp. 3d at 50

(quoting USCIS Policy Manual, Vol. 12, Part I, Ch. 3, § A); (see also Pls.’ SJ Mot Ex. 6, at 1,

ECF No. 4-7 (2017 version).) The Manual further defined “qualifying 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 an Active Component or one day of drilling as a Reservist to qualify a service

member for naturalization under § 1440.

       At least two manuals from military branches mirror this guidance. First, from at least

2005 until 2017, “The Soldier’s Guide to Citizenship Application,” an Army document used to

assist noncitizen enlistees in completing their naturalization applications, defined “honorable

service” for purposes of certifying an N-426 as follows:

       As a general rule, a Soldier is considered to be serving honorably unless a
       decision has been made, either by the Soldier’s commander or a court martial, to
       discharge him/her under less than honorable conditions.

       In the rare cases where the character of a Soldier’s service is questionable, ONLY
       the Soldier’s commander can decide this issue, and the sole criterion for the
       decision is: If the Soldier were being discharged today, based on his/her record,
       what type of discharge would the Soldier receive? If Honorable or General or
       Under Honorable Conditions, the character of service on the N-426 will read
       “honorable.” If Under Less than Honorable Conditions, the N-426 character of
       service item will NOT read “honorable.”




33
  This language was deleted from the USCIS Policy Manual by sometime in 2019. See USCIS
Policy Manual, Vol. 12, Part I, Ch. 3, § A (2019).



                                                 39
(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 under § 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 duty in the
       Armed Forces of the United States during any [designated period of hostilities],
       and who is otherwise eligible, may be naturalized whether or not the member has
       been lawfully admitted to the United States for permanent residence . . . .

DODI 5500.14, at E2.2.1 (emphasis added).

       In practice during this time, USCIS and the military cooperated to assist noncitizen

enlistees in obtaining their certified N-426s and submitting their 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 basic training, which was typically ten

weeks. Id.34

                       c.      2017

       In late 2016, the landscape began to change. Due to delays in shipping to basic training

caused by the new security screening requirements set forth in the September 30, 2016 DOD

Memorandum, by mid-2017, approximately 500 MAVNI Reservists drilling in the DTP had

sought and had received certified N-426s based only on service in at least one day of drilling.

Nio II, 385 F. Supp. 3d at 53. “However, sometime in the spring of 2017, the Army began to


34
   While the Court in Nio was concerned only with MAVNI enlistees, this process applied
equally to other noncitizen enlistees. See Nio I, 270 F. Supp. 3d at 55 n.11; USCIS Fact Sheet at
2.


                                                 40
change its practice and began to decline requests for N–426s to MAVNIs still in the DTP on the

ground that they were not serving on ‘active duty.’” Kirwa I, 285 F. Supp. 3d at 32. By July of

that year, DOD stopped certifying any new N-426s for MAVNI Reservists “because it ‘viewed

IET [active duty] as a necessary precondition of an honorable service determination,’” id.

(quoting 7/7/17 Miller Decl. ¶ ¶ 19–20; 7/28/17 Miller Decl. at 6 (AR 34)) (alteration in

original), and on August 17, 2017, the Army placed a formal hold on the issuance of any new N-

426s 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 plaintiffs 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 requirement on those who

enlisted after October 13, 2017 (the plaintiffs in this case). (AR 7.)

       Based on the record before the Court, no durational 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 requirements for MAVNIS or LPRs, nor were there any active-duty

requirements for MAVNI or LPR Reservists. While the Court lacks the same empirical data35

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 same. Thus, it is reasonable to


35
  In Nio, the Court had evidence that 500 MAVNIs had N-426s after one day 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, Nio, ECF No. 216-2 (Index); Nio, 385 F. Supp. 3d at 52.


                                                 41
infer that DOD’s prior N-426 practice as applied to MAVNIs is indicative of DOD’s practice as

applied to LPRs. And, at least as early as 2008, one day of service was sufficient in the Navy to

obtain an N-426, and USCIS, which was tasked with the job of implementing § 1440(a), only

needed one day of service in an Active Component or one day of drilling by a Reservist to

qualify for an N-426 and naturalization.

        This conclusion is confirmed by two DOD documents, each circulated weeks before the

N-426 Policy was adopted. First, a DOD Info Memo dated September 22, 2017, “Military

Accessions Vital to the National Interest (MAVNI) Pilot Program Update,” recommends

“establish[ing] a new policy that any non-citizen enlistee complete basic training to include 180

days of active honorable service, or one year of Reserve weekend drills and annual training, in

order to qualify for a certification 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 change from the current practice of certification of honorable

service for the purpose of expedited naturalization 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. SWINTON: . . . [T]he information that the Court has is correct with

regards to the military’s more recent practice”)), but they contest 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 record of service when evaluating

whether service is honorable,” and the N-426 Policy “returned DoD’s process for making




                                                   42
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 requirements for Reservists or any durational requirements for either

MAVNIs or LPRs in active-duty components. Further, we know from the USCIS Policy Manual

that at least by 2013, the USCIS considered, for purposes of naturalization, that one day of active

duty or one day of drilling for Reservists was sufficient to qualify for an N-426. This history is

sufficient to trigger defendants’ obligation to acknowledge and explain any departure from that

practice.

       Second, the only evidence cited by defendants to support their proposition that “[t]he

military . . . has always required a substantial record of service when evaluating whether service

is honorable” relates to characterization of discharge, not characterization of service for purposes

of naturalization. For instance, defendants’ two cases from the 1940s involved plaintiffs who

had received uncharacterized discharges from the draft and who sought declaratory judgments

that they were entitled to 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 War Department regulations

providing that men who were drafted but discharged at their mobilization camps before being

“finally accepted for military service” were to receive uncharacterized 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 for 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 War




                                                43
Department’s policy governing discharges, which, unlike naturalization, is squarely within the

province of the military. See supra Section I (Analysis). Moreover, in the only case cited by the

parties involving naturalization at this time, a federal court held that the petitioner 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 duration of service.” Petition of

Delgado, 57 F. Supp. 460, 461 (N.D. Cal. 1944).

       The remainder of defendants’ evidence—former regulations and DODI 1332.14—also

deals exclusively with the characterization 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 consideration 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 regulations were later amended to

establish an “entry level status,” which was 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 level 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 member was only eligible to receive an honorable discharge after

advancing out of entry level status. Id. at 10,171. The substance of these regulations was

removed from the C.F.R. in 1998 and is currently maintained in the DODI. See DODI 1332.14,

Enlisted Administrative Separations, Encl. 4, § 3c(1)(a) (providing that any service member

separated while in “entry-level status” will receive an uncharacterized discharge). While the

former regulations and current DODI support the notion that length of service has been a




                                                  44
consideration in characterizing a discharge, defendants fail to show that these standards have

ever been applied to or are relevant to an N-426 certification.36 The only evidence of past

practice with regard to this specific type of service certification, therefore, shows that, long

before October 13, 2017, DOD certified service on an N-426 based on the service member’s

record at the time he or she submitted it, and that the enlistee could obtain an N-426 after one

day of active duty or one day of drilling, in the case of a Reservist.

               2.      DOD’s Explanation

       Defendants claim that the Minimum Service Requirements were “included in the [N-426

Policy] to align DoD’s honorable service characterizations with how DoD defines honorable

service more broadly.” (Defs.’ SJ Mot. at 27.) Defendants attempt to support this claim with the

declaration of Stephanie P. Miller37 (Defs.’ SJ Mot. Ex. 1, ECF No. 19-2 (“05/22/20 Miller

Decl.”)), and a two-page document titled “Army Input on Certification o[f] Military or Naval

Service in an Active Duty Status for the Purpose of Naturalization.” (AR 41–42.) This

document was provided by the Army after a July 2017 meeting involving USD(P&R), the Army,

the Navy, and the Air Force, where attendees discussed “developing 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 discharge 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 the September 30, 2016 DOD Memorandum, a soldier cannot ship to
basic training unless his MSSD is completed. If a soldier receives a negative MSSD, “he or she
is discharged promptly, and the discharge will be ‘uncharacterized’ 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 automatically disqualifies a discharged soldier from naturalizing under
§ 1440 because it is not an honorable discharge. Id.
37
 Stephanie P. Miller is the Director of the Accession Policy Directorate in the Office of the
Under Secretary of Defense for Personnel and Readiness. (05/22/20 Miller Decl. ¶ 1.)



                                                  45
prospective requirements concerning length of service be tied to commonly used personnel

policies concerning characterization of service” and “suggest[s] using the same standard that we

use for giving someone an honorable discharge.” (AR 41 (citing DODI 1332.14).)

       The administrative record paints a different narrative. Two DOD memoranda prepared

during the design of the N-426 Policy strongly suggest that the Minimum Service Requirements

were included to address national security concerns raised by the inclusion of noncitizens in the

military. The first, the September 22, 2017 DOD Info Memo titled “Military Accessions Vital to

the National Interest (MAVNI) Pilot Program Update,” describes ongoing and recommended

efforts to mitigate the “counterintelligence . . . risk” presented by MAVNIs and LPR enlistees.

(See AR 27–28 (“LPR recruits . . . share[] many of the same risk factors with the MAVNI

population.”).) “[T]o address ongoing mitigation efforts,” the document recommends what

would become the Minimum Service Requirements—that DOD “establish a new policy that any

non-citizen enlistee complete basic training to include 180 days of active honorable service, or

one year of Reserve weekend drills and annual training, in order to qualify for a certification of

citizenship eligibility.” (AR 28.) The second memorandum, “Policy Changes Concerning

Lawful Permanent Residents and the Military Accessions Vital to the National Interest (MAVNI)

Pilot Program,” was disseminated the day before the N-426 Policy was issued in order to further

“[t]ransparency with all audiences regarding policy changes affecting DoD foreign nationals,” to

“[e]nsure those affected understand the reasoning and importance 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 Department’s intent to
       ensure all appropriate security screening is complete prior to the individual’s
       entry into military service and a certification of honorable service is granted for



                                                46
        purposes of expedited naturalization.

        As such, effective immediately, in order for a foreign national serving in the
        Active, Reserve, or Guard Service to receive a certification of honorable service
        for the purposes of expedited naturalization (citizenship), he or she must:

        ...

        Complete at least 180 consecutive 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 Requirements to national security

concerns.

        This explanation tracks the one defendants gave for the N-426 Policy’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-refrain that

DOD has made the change for ‘national security’ purposes.”); (Hr’g Tr. at 32, Kirwa, Oct. 18,

2017, ECF No. 27 (“10/18/17 Kirwa Tr.”) (“National security concerns . . . has [sic] necessitated

these policy changes.”)). The Court rejected this rationale—“national security issues may justify

enhanced security screening, . . . but N-426 certification is not related to that process. . . .

Therefore, DOD has given no reasoned justification why certifying 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 rationale in that case, asserting that the N-426 Policy “reflects

DoD’s desire to establish, for the first time, a clear and consistent process for N-426

certifications following a number of years in which the military was applying inconsistent

standards for such determinations.” Kirwa II, 285 F. Supp. 3d at 269. The Court also rejected

this rationale because it found “no support in the administrative record.” Id.

        In this case, defendants disavow the national security rationale as it relates to the

Minimum Service Requirements and suggest that its mention in these documents relates to other



                                                  47
policies put in place on October 13, 2017. (7/16/20 Tr. at 52.) But neither of the

abovementioned pre-October 13, 2017 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 align with DOD’s

discharge practice. Pursuant to DODI 1332.14, a Reservist graduates from entry-level status

after 180 days of continuous active-duty training or, if his training is split, ninety days after

beginning his second period of active-duty training. The Reservist Minimum Service

Requirement, however, requires that a Reservist serve for a year, including 180 days of active-

duty service, before he or she is eligible to receive a certified N-426. Also, defendants assert that

the longer time-in-service required by the N-426 Policy for Reservists was due to “an awareness

by DoD that such service members serve in an active-duty capacity 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 facts found and the choice

made.” State Farm, 463 U.S. at 43. Defendants’ explanation suggests that the standards

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 not explained why it is necessary

for eligibility to naturalize. Since the ability to perform in the military does not equate with good

moral character for purposes citizenship, USCIS makes an independent 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) (designating USCIS officers

“to conduct the examination for naturalization required under” the INA). Pursuant to USCIS




                                                  48
regulations, this includes a review of FBI criminal background checks. See 8 C.F.R. § 335.2(b).

When adjudicating naturalization applications of service members, USCIS also requests from

DOD name check queries of DOD’s Defense Clearance Investigative Index to see if the

applicant has a criminal record on his or her military record. See USCIS Policy Manual, Vol. 12,

Part I, Ch. 6, § A. After these checks, an applicant is interviewed by a USCIS officer. See 8

C.F.R. § 335.2.

       USCIS will not approve a naturalization application unless the agency determines that the

applicant is “a person of good moral character, attached to the principles of the Constitution of

the United States, and well disposed to the good order and happiness of the United States.” 8

U.S.C. § 1427(a). The applicant “bears the burden of demonstrating that, during the statutorily

prescribed period, he or she has been and continues to be a person of good moral character,” 8

C.F.R. § 316.10(a)(1), and USCIS makes this determination “on a case-by-case basis.” 8 C.F.R.

§ 316.10(a)(2). While certain designated criminal and immoral acts are automatically

disqualifying, USCIS otherwise has discretion to evaluate the applicant’s character. Id.

       In Nio, defendants acknowledged that certain considerations made in the military

suitability context, such as “behavior that could make an individual vulnerable to coercion in the

context of handling classified information . . . may be less relevant to a USCIS assessment of the

individual’s moral character.” Nio II, 385 F. Supp. 3d at 65 (citation and internal quotation

marks omitted). Similarly, “in rendering an assessment [of military suitability], any doubts ‘will

be resolved in favor of the national security.’ By contrast, in assessing good moral character

USCIS has discretion to evaluate the applicant’s character in the context of ‘the standards of the

average citizen in the community of residence.’” Id. (quoting DOD Memorandum:




                                                49
Implementation of Adjudicative Guidelines for Determining Eligibility for Access 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 some individuals being found

“unsuitable” for military service should still eligible to naturalize under USCIS’s requirements:

       When we screen someone for the purpose of suitability and security, we’re
       screening at a fairly high threshold. So an individual who may have a known or
       unknown relative that works for a foreign defense department or foreign
       intelligence agency, the individual themselves may have no malicious intent
       towards the United States or to the government; but we cannot mitigate the fact
       that they have a direct relative working for a foreign intelligence agency. So,
       therefore, the individual may not be suitable to hold a national security position
       [i.e., to serve as a soldier].

       But ultimately that may not mean that the individual is not suitable to ultimately
       become a United States citizen. And we have tried very hard to make that
       distinguishing factor with our colleagues at Department of Homeland Security
       and USCIS. So they may not be able to serve [or continue serving] in the
       military, but that may not bear on [USCIS’s] final determination as to whether
       that individual should 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.)) (alterations in original).)38

       In establishing the Minimum Service Requirements, defendants have also “failed to

consider . . . important aspect[s] of the problem,” State Farm, 463 U.S. at 43, including the fact

that the Reservist Minimum Service Requirement has the practical effect of requiring Reservists

to serve the same amount of time to be eligible to naturalize under both § 1440 and § 1439.

Section 1439 requires noncitizens serving in times of peace to serve a minimum of one year

before becoming eligible to naturalize. 8 U.S.C. § 1439(a). This one-year minimum may be


38
  In Tiwari, a district court held that naturalized citizens who had enlisted through the MAVNI
program had been unconstitutionally discriminated against on the basis of national origin
because the government had subjected them to NIAC checks and continuous monitoring for
national security concerns, even after becoming citizens. See Tiwari v. Mattis, 363 F. Supp. 3d
1154 (W.D. Wash. 2019).



                                                50
satisfied by “a combination of active duty and inactive duty in a 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 hostility. Unlike § 1439, there is

no duration of service requirement in § 1440. However, the N-426 Policy imposes such a

requirement, thereby effectively requiring Reservists to serve the same amount of time in both

peacetime and wartime and erasing the benefit of § 1440 for Reservists.

       In sum, defendants’ purported explanation is not reflected in the administrative record,

does not “connect[] the facts found and the choice made,” and does 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 requires more of an agency. Accordingly, the Court will grant

summary judgment to plaintiffs on their claim that the Minimum Service Requirements are

arbitrary and capricious.

       B.       Contrary to Law & Agency Action Unlawfully Withheld

       Plaintiffs claim that the Minimum Service Requirements violate 5 U.S.C. § 706(2)(A)

and (C), which instruct a reviewing court to “hold unlawful and set aside agency action . . . not in

accordance with the law,” § 706(2)(A), or “in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right,” § 706(2)(C).39 The crux of plaintiffs’ claim is that the

Minimum Service Requirements substantively amend the naturalization requirements set forth in

§ 1440. Plaintiffs also assert that defendants’ refusal to certify 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 scope of its authority (its
‘jurisdiction’) and its exceeding authorized application of authority that it unquestionably has.”
City of Arlington v. F.C.C., 569 U.S. 290, 299 (2013).



                                                  51
to “compel agency action unlawfully withheld.” To show that DOD has unlawfully withheld

plaintiffs’ honorable service certifications, plaintiffs must prove 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 “must be ‘ministerial or nondiscretionary’ 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 argue 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 Court to interpret § 1440, the Court 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 provide for the expeditious naturalization” of noncitizens

serving in the military during designated periods of hostility. S. Rep. No. 1292, at 2. To that

end, the statute states, in relevant part:

        Any person who, while an alien or a noncitizen national of the United States, has
        served honorably as a member of the Selected Reserve of the Ready Reserve or in
        an active-duty status in the military, air, or naval forces of the United States
        during [a designated period of hostility], and who, if separated from such service,
        was separated under honorable conditions, may be naturalized as provided in this
        section . . . . The executive department under which such person served shall
        determine whether persons have served honorably in an active-duty status, and
        whether separation from such service was under honorable conditions . . . .




                                                  52
8 U.S.C. § 1440(a). Defendants argue that, because the INA does 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 interpretation as set forth in the N-426 Policy. (Defs.’ SJ Mot.

at 33, 38.) Defendants’ argument is unpersuasive.

       Section 1440 is a naturalization statute, and “[t]he sole authority to naturalize persons as

citizens of the United States is conferred upon the Attorney General.” 8 U.S.C. § 1421(a). The

Attorney General, in turn, has delegated this power to USCIS, not DOD. 8 C.F.R. § 310. While

the statute contemplates a role for DOD, that role is limited to certifying an enlistee’s honorable

service, not rewriting the statute to establish new standards for naturalization.

       That defendants are not authorized to establish naturalization standards under § 1440 is

bolstered by USCIS’s understanding of DOD’s role in the naturalization process, as indicated by

the format of Form N-426 as it existed at least beginning in 2013 through 2019.40 (See Pls.’ PI

Mot. Ex. 4, Kirwa, ECF No. 11-4 (Form N-426 that expired on August 31, 2019) (“2019 N-

426”)); 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 applicant-enlistee to provide personal information and all periods of

military service, by branch, dates of service, and “type of service”—either “Active Duty” or

“Selected Reserve of the Ready Reserve.” 2019 N-426 at 1–3; 2017 N-426 at 1–3; 2015 N-426

at 1. For applicants who are currently serving, the form required the certifying official to simply

check “Yes” or “No” as to whether the enlistee is serving or has 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.



                                                 53
directed to provide details in the “Remarks” section, specifically to “[p]rovide any derogatory

information in your records relating to the service member’s character, loyalty to the United

States, disciplinary action, convictions, other than honorable discharges, or other matters

concerning his or her fitness for citizenship.” 2019 N-426 at 3–4; 2017 N-426 at 3–4; see also

2015 N-426 at 1. The form required nothing more of DOD.

       Thus, defendants are not entitled to deference in their interpretation 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 interprets 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 evidence that Congress delegated authority to DOD to interpret

immigration statutes and the informal manner in which DOD reached its October 13th

Guidance.”).

               2.      Structure

       Moreover, while § 1440 does not explicitly define what it means to have “served

honorably,” the language of § 1440, other parts of the INA and the statute’s legislative history

indicate the term’s meaning. As recognized in Kirwa, “[e]very characterization of honorable

service or separation under honorable conditions in 8 U.S.C. § 1440 is defined in terms of past

service.” Kirwa II, 285 F. Supp. 3d at 267 (emphasis added). The statute applies to “[a]ny

person who . . . has served honorably,” and DOD’s role under the 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 conditions in subsections (b) and

(c) are likewise stated in the past tense. Thus, § 1440 “specifically 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 Service Requirements, “defendants


                                                 54
are impermissibly conflating a present suitability determination with a determination of past

honorable service.” Kirwa II, 285 F. Supp. 3d at 267-68.

       The problem identified by defendants—that certifying N-426s only on past service

equates to certifying honorable service “on the basis of a barebones 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 to this section may be revoked . . . if the person is
       separated from the Armed Forces under other than honorable conditions before
       the person has served honorably for a period or periods aggregating five years.

Thus, § 1440 contains an implicit requirement that an individual serve honorably for at least five

years to maintain U.S. citizenship. Immediate eligibility to apply for citizenship in subsection

(a) is compatible with subsection (c)’s safeguard.

       That § 1440 contains no minimum service requirement is confirmed by the text of

§ 1440’s companion, § 1439, which provides an expedited path to naturalization for military

service during peacetime. Both sections were enacted on the same date, but Congress limited the

benefit of § 1439 to “person[s] who 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 not include a minimum time-in-service requirement in

§ 1440. The inclusion of a time-in-service requirement in § 1439 shows that Congress knows

how to establish such a requirement when it wants to, and the lack 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 omission of the same language in another “suggest[s] that the

omission in this particular context was deliberate”); Hedrick v. Novastar Mortg., Inc. (In re




                                                55
Hedrick), 524 F.3d 1175, 1187 (11th Cir. 2008) (“Where Congress knows how 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 that when Congress legislates in

one area with explicit reference in a statute on an area of concern, but fails to reference 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 requirement of § 1439, “indicat[es] that Congress left it to DoD to

construe the phrase ‘honorable service’” in § 1440. (Defs.’ SJ Mot. at 18.) But defendants’

reading is contrary to § 1440’s legislative history, which is ripe with evidence that Congress

intended that there be no minimum time-in-service required of a noncitizen enlistee in order to

benefit from § 1440. Burns v. United States, 501 U.S. 129, 136, (1991) (“An inference drawn

from congressional silence certainly cannot be credited when it is contrary to all other textual

and contextual evidence of congressional intent.”). In 1940, the INA’s predecessor, the

Nationality Act, established the first expedited path to citizenship 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. Hazard, Assistant to the Commissioner of the Immigration and

Naturalization Service (USCIS’s predecessor), at a hearing before the Immigration and

Naturalization Committee:

        Mr. Allen: Does this bill simply make it mandatory that any one who joins the


                                                 56
       army immediately gets citizenship[?]

       Mr. Hazard: Not at all, sir. His service must be honorable.

       Mr. Allen: How long must he render service?

       Mr. Hazard: No particular period of time.

Naturalization of Aliens Serving in the Armed Forces of the U.S.: Hearing 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 “immediately . . . becomes eligible to make [a naturalization]

application.” Id. at 14.

       Defendants argue that this legislative history “evidences Congressional intent to vest

discretion in DoD when making honorable service determinations.” (Defs.’ SJ Mot. at 22.)

They base their assertion on a single statement made by Representative Mason: “We aren’t

going to give [a noncitizen service member] his citizenship papers the next day after he joins the

army, in any instance.” 77th Cong. 14. But receipt of a certified 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, USCIS will schedule an

appointment with the applicant to have her biometrics taken. USCIS, A Guide to Naturalization

31 (2016). After the applicant attends that appointment, the applicant must submit any additional

paperwork required by USCIS. Id. USCIS then conducts its own investigation of the applicant

and schedules an interview. Once the applicant is interviewed, USCIS is required to make a

determination on the application within 120 days. See 8 U.S.C. § 1447(b). If the application is

approved, the applicant will receive a ceremony date, at which time she will take the Oath of

Allegiance and then receive her Certificate of Naturalization. Id. Thus, even when an enlistee




                                                 57
receives a certified N-426 after one day of service, she must wait a significant amount of time

before becoming a citizen.41 Representative Mason’s statement 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 was carried forward by the INA, see 66 Stat. 249–50, and

in 1968, § 1440 was amended to expand eligibility for naturalization to those who served in the

Vietnam War and in future designated periods of hostility. See 82 Stat. 1343–44. As noted

supra, see Section II.B.3 (Analysis), the legislative history of this amendment provides that “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’ 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 eligibility under § 1440 to service during a

designated period of hostility, rather than location of service). USCIS, the agency responsible

for administering § 1440, has consistently interpreted the statute in accordance with this

legislative history. According to the agency, § 1440 extends the benefit of expedited




41
   Indeed, the average USCIS processing time for all military naturalization applications in May
of 2017, while the USCIS Naturalization at Basic Training Initiative was still in place, was
approximately four months. See Nio, 385 F. Supp. 3d at 56. According to the USCIS website,
naturalization application processing times are currently much longer, with times ranging from
twelve to seventeen and a half months in Houston, Texas, and between nine and twenty-eight
months in Honolulu, Hawaii. Check Case Processing Times, USCIS,
https://egov.uscis.gov/processing-times/ (last visited August 10, 2020).
42
  As noted, at least one court has interpreted the Nationality Act as amended in 1942 to
“establish[] no prerequisites as to duration of service” for eligibility to naturalize. Petition of
Delgado, 57 F. Supp. at 461. The court held that a noncitizen “serving honorably for one day or
one week[] [wa]s eligible for citizenship under [the NA] upon compliance with the applicable
naturalization requirements.” Id.



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naturalization to “aliens who served in the U.S. Armed Forces during specific periods of

hostilities . . . without having served for any particular length of time.” 75 Fed. Reg. 2,785.

        Defendants argue that the only remaining service requirement of Section I of the N-426

Policy, the active-duty requirement of the Reservist Minimum Service Requirement, is required

by the text of § 1440. (Defs.’ SJ Mot. at 33 (“[T]he only criteria 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. SWINTON: . . . [T]he second sentence of subsection A [of § 1440]

makes clear that they must have serv[ed] in an active duty status.”). Defendants hang their hat

on the second sentence of subsection (a), which states, “The executive 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 added). 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 . . . interpretation despite . . . textual ambiguities if its structure,

legislative history, or purpose makes clear what its text leaves opaque.”).

        At its inception, § 1440 of the INA applied to noncitizens who “ha[d] served honorably in

an active-duty status.” 66 Stat. 250. In 2003, Congress amended the statute so that it would

apply to anyone “serv[ing] honorably as a member of the Selected 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] honorably as a member of the Selected Reserve of the Ready

Reserve,” without regard to whether he or she is serving “in an active-duty status.”




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       The legislative history confirms that the statute applies equally to Reservists and active-

duty service members, without imposing any further requirements on the former category of

enlistees. As detailed supra, see Section II.B.3 (Analysis), the Congressional Record relating to

the 2003 amendment shows that Congress intended to extend to Reservists the same “process of

immediate naturalization” that had existed for those serving in an Active Component. See 149

Cong. Rec. S7,280–83.

       Again, USCIS has interpreted § 1440 consistent with this legislative history:

       [T]he [2003 amendment] extended the benefit of naturalization not only to
       individuals who served honorably in an active duty status during specified periods
       of hostilities, but also to individuals who have served honorably as members of
       the Selected Reserve of the Ready Reserve of the U.S. Armed Forces 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 requirement, convert this determination to a certification 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 have served honorably.” 8 U.S.C. § 1440(a) (emphasis added).

The word “shall” is “mandatory” and “normally creates an obligation 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 amendment to the Nationality Act “undercuts any notion

that [DOD’s] role is ministerial.” (Defs.’ SJ Mot. at 23.) The pre-1948 version of the statute

provided that honorable service be proved by filing two affidavits of at least two citizen




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servicemembers “of the noncommissioned or warrant officer grade or higher . . . or by a duly

authenticated copy of the record of the executive department having custody of the record of

petitioner’s service.” 56 Stat. 182. The 1948 amendment added the requirement that “[t]he

executive department under which such person served shall determine whether persons have

served honorably in an active-duty status, and whether separation 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 being “nondiscretionary.” W. Org. of Res. Councils, 892 F.3d at 1241

(citation and internal quotation marks omitted) (“The legal duty must be ministerial or

nondiscretionary and must amount to a specific, unequivocal command.” (citation and internal

quotation marks omitted).) In fact, DOD and USCIS counsel acknowledged in Nio that

certifying Form N-426 is ministerial. See Kirwa I, 285 F. Supp. at 38 (“DOD serves a

ministerial role in determining if an individual is serving honorably.” (quoting Defs.’ Resp. to

Pls.’ Mot. for a Prelim. Inj. at 36, Nio, ECF No. 19)).

       Thus, not only is DOD prohibited from considering anything beyond an enlistee’s past

service record in determining whether he or she has served honorably, but upon receipt of a

request to certify an N-426 by a noncitizen who has satisfied the one day of qualifying service,

DOD must make the required determination. Accordingly, the Court will grant summary

judgment to plaintiffs on their claims that the Minimum Service Requirements are contrary to

law and that DOD’s refusal to certify plaintiffs’ N-426s because they have not met those

requirements constitutes agency action unlawfully withheld.43



43
  Plaintiffs agreed that, unless their other claims failed, it was not necessary for the Court to
address their notice-and-comment claim. (7/16/20 Tr. at 80–81.) Because the Court will grant
summary judgment to plaintiffs on their three other claims, the Court will not reach the merits of
their notice-and-comment claim.



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                                      CONCLUSION

      For the foregoing reasons, plaintiffs’ motion for summary judgment will be granted, and

defendants’ motion for summary judgment will be denied. The Minimum Service Requirements

will be vacated. A separate Order accompanies this Memorandum Opinion.




                                                  _______________________
                                                  ELLEN S. HUVELLE
                                                  United States District Judge


Date: August 25, 2020




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