                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



  KUSUMA NIO, et al.,

                         Plaintiffs,

                 v.                                   Civil Action No. 17-998 (ESH)

  UNITED STATES DEPARTMENT OF
  HOMELAND SECURITY, et al.,

                         Defendants.



                                 MEMORANDUM OPINION

       Before the Court is plaintiffs’ amended motion for class certification. Plaintiffs are non-

citizens serving in the United States Army’s Selected Reserve of the Ready Reserve who enlisted

under the United States Department of Defense’s Military Accessions Vital to the National

Interest (“MAVNI”) program and who have applied for naturalization pursuant to 8 U.S.C.

§ 1440, which provides an expedited path to citizenship for soldiers who serve during specified

periods of hostilities. They brought this action against (1) the United States Department of

Homeland Security (“DHS”) and its Acting Secretary, Elaine C. Duke, the United States Citizen

and Immigration Service (“USCIS”) and its Acting Director, James McCament (collectively

“DHS Defendants”); and (2) the United States Department of Defense (“DOD”) and its

Secretary, James Mattis (collectively “DOD Defendants”). Plaintiffs bring multiple claims under

the Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, seeking

mandamus, declaratory relief, and injunctive relief. Plaintiffs challenge (1) DHS’s/USCIS’s

decision to await DOD’s completion of the enhanced security screening of MAVNI enlistees
prior to their shipment to basic training or active-duty service (“DHS/USCIS Security Screening

Requirement”), see Nio v. United States Dep’t of Homeland Sec., No. 17-cv-998, 2017 WL

3917006, at *1–5 (D.D.C. Sept. 6, 2017), and (2) DOD’s October 13th Guidance that required

the recall and de-certification of USCIS Form N-426, which is a form necessary for a MAVNI’s

naturalization application under 8 U.S.C. § 1440. (Defs.’ Weekly Status Report, Oct. 13, 2017,

ECF No. 58, Ex. 1 (“10/13/2017 Guidance”) at 4.) Plaintiffs seek to certify a class, under

Federal Rule of Civil Procedure 23(b)(1) or (2), consisting of all persons who (1) enlisted in the

Selected Reserve, (2) have served honorably in the military “through participation in at least one

Selected Reserve drill period or in an active-duty status,” (3) have received a Form N-426

certifying their honorable service, (4) have submitted N-400 Applications for Naturalization to

USCIS, and (5) are being subjected to the DHS/USCIS Security Screening Requirement and

Section III of DOD’s October 13, 2017 Guidance regarding N-426s. (Pls.’ Am. Mot. For Class

Certification and Appointment of Class Counsel, Oct. 20, 2017, ECF No. 62, (“Class Mot.”) at

1.)1 For the reasons stated herein, the motion is granted with a modified class definition.

                                        BACKGROUND

       The factual background and procedural history in this case has been set out in detail in

the Court’s previous September 6, 2017 Memorandum Opinion denying plaintiffs’ request for a

preliminary injunction, Nio, 2017 WL 3917006, at *7–8, and the Court’s previous October 25,

2017 Memorandum Opinion in the related case of Kirwa v. Dep’t of Def., 17-cv-1793, ECF No.

29, granting those plaintiffs’ request for a preliminary injunction. The only factual development




1
  Two of the named plaintiffs have been naturalized, but that does not render the claims of the
class moot. See Thorpe v. D.C., 916 F. Supp. 2d 65, 66 (D.D.C. 2013).
                                                 2
relevant to the class-action inquiry is DOD’s release of the October 13th Guidance. In that

document, DOD sets forth criteria in Section III as follows:

          Decertification and Recertification.
          The Military Department concerned will recall and de-certify the Form N-426 for
          a Service Member described below:

     1.   The Service Member’s accession was prior to the date of this memorandum;
          AND

     2.    The Service Member has submitted to the USCIS a complete application for
          naturalization that includes both a Form N-400 and a Form N-426, certifying the
          member’s honorable service for purposes of naturalization, signed by a
          representative of the Military Department concerned, and USCIS has not
          adjudicated such application, or, if USCIS has granted such application, the
          member has not yet naturalized; AND

     3. The Service Member has not completed all applicable screening and suitability
        requirements as set forth in Section 1, paragraph 2 above [the enhanced security
        screening that is the subject of the DHS/USCIS Security Screening Requirement].

(10/13/2017 Guidance at 4.) Following issuance of the October 13th Guidance, this Court issued

an order granting plaintiffs leave to file an amended complaint, an amended motion for class

certification, and a motion for preliminary injunctive relief confined to the issue of DOD’s

position regarding N-426s outlined in Section III of the October 13th Guidance. (Order, October

18, 2017, ECF No. 60.) Having received the parties’ arguments on class certification at a

hearing on October 27, 2017, the Court is now ready to rule.

                                             ANALYSIS
I.        LEGAL STANDARD

          A plaintiff seeking class certification must meet the two requirements set forth in Federal

Rule of Civil Procedure 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011); Garcia v.

Johanns, 444 F.3d 625, 631 (D.C. Cir. 2006). First, under Rule 23(a), all class actions must

satisfy the four requirements of numerosity, commonality, typicality, and adequacy. Second, the

suit must fit into one of the three types of class actions outlined in Rule 23(b)(1), (b)(2), and

                                                   3
(b)(3). The Court finds that this suit satisfies the Rule 23(a) requirements and that a class should

be certified under Rule 23(b)(1)(A) and Rule 23(b)(2).

II.    CLASS DEFINITION

       Plaintiffs define their proposed class as

       all persons who:

       (i) have enlisted in the Selected Reserve of the Ready Reserve (“Selected
       Reserve”) through the Military Accessions Vital to the National Interest
       (“MAVNI”) program;

       (ii) have served honorably in the U.S. military through participation in at least one
       Selected Reserve drill period or in an active-duty status;

       (iii) have received from the U.S. military executed Form N-426s certifying their
       honorable service as members of the Selected Reserve or in active-duty status;

       (iv) have submitted N-400 Applications for Naturalization to United States
       Citizenship and Immigration Services (“USCIS”); 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 United States Department of
       Defense (“DoD”) N-426 policy review, (c) a DoD N-426 recall/decertification
       policy, (d) enhanced DoD security screenings, (e) a DoD Consolidated
       Adjudications Facility (“CAF”) adjudication, (f) a . . . national security
       determination, and/or (g) a . . . military service suitability vetting or
       determination.

(Class Mot. At 1–2.) The proposed class, at a minimum, consists of between 400 and 500

MAVNI soldiers. (Class Mot. at 2.) Because DOD’s October 13th Guidance applies different

standards to MAVNI enlistees who enlisted before Oct 13, 2017, the Court will limit the class to

those who enlisted before October 13, 2017.




                                                   4
III.   RULE 23(a) REQUIREMENTS

       Defendants contend that plaintiffs’ proposed class fails to exhibit commonality,

typicality, or adequacy. However, based on the record before the Court, it is satisfied that

plaintiffs meet all of Rule 23(a)’s requirements.

       A.      Numerosity

       The numerosity inquiry turns on whether it would be too impracticable to join all

members of the class individually and litigate the claims of each claims member on an

individualized basis. Nat’l Veterans Legal Servs. Program v. United States, 235 F. Supp. 3d 32,

39 (D.D.C. 2017). Defendants do not dispute numerosity, and, based on the record before the

Court, it is satisfied that the proposed class is sufficiently numerous. Id. at 40; see also

McCarthy v. Kleindienst, 741 F.2d 1406, 1410 (D.C. Cir. 1984).

       B.      Commonality

       The commonality requirement is met when “there are questions of law or fact common to

the class.” Fed. R. Civ. P. 23(a)(2); see also Wal-Mart Stores, 564 U.S. at 350. Plaintiffs’

claims “must depend upon a common contention . . . of such a nature that it is capable of

classwide resolution—which means that determination of its truth or falsity will resolve an issue

that is central to the validity of each one of the claims in one stroke.” Id. Individuals in the

proposed class share key factual characteristics that make this case amenable to class-wide

resolution: All are members enlisted in the Selected Reserve through the MAVNI program, are

serving honorably, have a valid N-426, have an outstanding application for naturalization being

delayed by the DHS/USCIS Security Screening Requirement, and are subject to some or all of

DOD’s October 13th Guidance. Plaintiffs’ legal claims involve the validity of the DHS/USCIS

Security Screening Requirement and the October 13th Guidance, both of which are “uniform



                                                    5
polic[ies] or practice[s] that affect[] all class members.” DL v. District of Columbia, 713 F.3d

120, 128 (D.C. Cir. 2013); see also R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 181 (D.D.C. 2015).

       Defendants assert that a multitude of factual differences prevent class certification:

active-duty enlistees will likely have passed DOD’s enhanced security screening, whereas

Selected Reservists may still have security screenings pending; some members of the class could

have improperly certified N-426s; DOD’s background checks involve individualized and fact-

specific inquiries; etc. Defendants also point out that plaintiffs’ unreasonable-delay claim under

5 U.S.C. § 706(1) involves fact-specific inquiries and class members may have naturalization

applications pending for varying amounts of time.

       “However, ‘factual variations among the class members will not defeat the commonality

requirement, so long as a single aspect or feature of the claim is common to all proposed class

members.’” Encinas v. J.J. Drywall Corp., 265 F.R.D. 3, 8 (D.D.C. 2010) (citation omitted).

The Court acknowledges the factual variations among class members, but finds that they do not

impact the overarching questions common to the class: (1) Do defendants have the legal

authority to implement these policies and practices? (2) Did defendants implement their new

policies and practices in accordance with the strictures of the APA? and (3) Do these policies and

practices otherwise violate the Constitution, the APA, or other applicable law? As the Supreme

Court has explained, even a single common question can satisfy the commonality requirement.

See Wal-Mart Stores, 564 U.S. at 350, 359.2




2
  Although class members’ naturalization applications may have applications with varying times
of delay that could influence the type of relief this Court could grant, courts routinely certify
classes in unreasonable-delay cases where a common issue exists regarding the legality of the
government’s policies and practices that serve as the reason for delay. Kaplan v. Chertoff, No.
06-cv-5304, 2008 WL 200108, at *7 (E.D. Pa. Jan. 24, 2008) (unpublished); Santillan v.
Ashcroft, No. C 04-2686, 2004 WL 2297990, at *10, 12 (N.D. Cal. Oct. 12, 2004) (unpublished).
                                                 6
       C.      Typicality

       As to typicality, defendants make the same arguments concerning factual variations that

the Court has already rejected. As defendants themselves acknowledge, the

       commonality and typicality requirements of Rule 23(a) tend to merge. Both serve
       as guideposts for determining whether under the particular circumstances
       maintenance of a class action is economical and whether the named plaintiff’s
       claim and the class claims are so interrelated that the interests of the class
       members will be fairly and adequately protected in their absence.

Wal-Mart Stores, 564 U.S. at 349 n.5 (citation omitted). Furthermore,

       [t]he facts and claims of each class member do not have to be identical to support
       a finding of typicality; rather, “[t]ypicality refers to the nature of the claims of the
       representative, not the individual characteristics of the plaintiff.” The typicality
       requirement is satisfied “if each class member’s claim arises from the same course
       of events that led to the claims of the representative parties and each class
       member makes similar legal arguments to prove the defendant’s liability.”


Radosti v. Envision EMI, LLC, 717 F. Supp. 2d 37, 52 (D.D.C. 2010) (second alteration in

original) (internal citations omitted). Defendants are applying standardized, across-the-board

policies to the class. The Court is not adjudicating naturalization applications or making

individual N-426 determinations, it will merely decide (1) whether DHS/USCIS can postpone

adjudication of naturalization applications pending completion of DOD’s enhanced security

screening, and (2) whether DOD can apply its October 13th Guidance to recall or de-certify N-

426s that had previously been granted to members of the class.

       D.      Adequacy and Appointment of Class Counsel

       “Two criteria for determining the adequacy of representation are generally recognized:

1) the named representative must not have antagonistic or conflicting interests with the unnamed

members of the class, and 2) the representative must appear able to vigorously prosecute the

interests of the class through qualified counsel.” Twelve John Does v. District of Columbia, 117



                                                  7
F.3d 571, 575 (D.C. Cir. 1997) (citation omitted). In addition, under Rule 23(g), a court must

consider the following factors in appointing class counsel:

       (i) the work counsel has done in identifying or investigating potential claims in
       the action; (ii) counsel’s experience in handling class actions, other complex
       litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge
       of the applicable law; and (iv) the resources that counsel will commit to
       representing the class.

Fed. R. Civ. P. 23(g)(1). Defendants make two main arguments regarding adequacy and

appointment of class counsel.

       First, defendants repeat their argument that factual differences between the named

plaintiffs and the proposed class defeat adequacy. This argument fails for the same reasons that

it does regarding commonality and typicality. See Wal-Mart Stores, 564 U.S. at 349 n.5; Harris

v. Koenig, 271 F.R.D. 383, 390–91 (D.D.C. 2010) (finding that the defendants’ argument about

differences between named plaintiffs and class members failed to defeat commonality, typicality,

or adequacy and noting that a district court has discretion to later consider creating subclasses

should a conflict arise).

       Second, without any legal support, defendants boldly assert that plaintiffs’ counsel cannot

adequately represent the class because plaintiffs’ counsel has not demonstrated that they have

handled plaintiffs’ immigration matters in the class action context. Rule 23 does not require

prospective class counsel to have such specific experience. See Fed. R. Civ. P. 23, Committee

Notes on Rules—2003 Amendment (“In evaluating prospective class counsel, the court should

weigh all pertinent factors. No single factor should necessarily be determinative in a given

case.”) Plaintiffs’ counsel consists of a team of attorneys with experience in immigration law,

military law, complex civil litigation, federal court litigation, and class-actions—representing

both plaintiffs and defendants. (See 1st Baruch Decl., Aug. 11, 2017, ECF No. 30-3; 2d Baruch



                                                 8
Decl., Sept. 22, 2017, ECF No. 52-2.) Furthermore, plaintiffs’ counsel has contributed extensive

time and resources to representation of plaintiffs and the proposed class and are part of a large

global law firm that has committed to contributing extensive time and resources to representing

plaintiffs and the proposed class. (See 1st Baruch Decl., Aug. 11, 2017, ECF No. 30-3; 2d

Baruch Decl., Sept. 22, 2017, ECF No. 52-2.) Given counsel’s knowledge, experience,

resources, and commendable work already done in the case, the Court has no doubt that

plaintiffs’ counsel can adequately represent the class. See Encinas, 265 F.R.D. at 9; Vista

Healthplan, Inc. v. Warner Holdings Co. III, 246 F.R.D. 349, 358 (D.D.C. 2007); see also

Greenberg v. Colvin, 63 F. Supp. 3d 37, 46–47 (D.D.C. 2014).

IV.    RULE 23(b) REQUIREMENTS

       Rule 23(b)(1)(A) permits a class action to proceed when “prosecuting separate actions by

or against individual class members would create a risk of: (A) inconsistent or varying

adjudications with respect to individual class members that would establish incompatible

standards of conduct for the party opposing the class . . .” Fed. R. Civ. P. 23(b)(1)(A). “Rule

23(b)(1)(A) certification is appropriate when the class seeks injunctive or declaratory relief to

change an alleged ongoing course of conduct that is either legal or illegal as to all members of

the class.” Adair v. England, 209 F.R.D. 5, 12 (D.D.C. 2002). In their opposition to plaintiffs’

initial motion for class certification and in their supplemental opposition to plaintiffs’ amended

class certification motion, defendants failed to respond to plaintiffs’ argument that the Court

should certify the proposed class under Rule 23(b)(1)(A), and thus, defendants have conceded

that class certification is appropriate under Rule 23(b)(1)(A). See Day v. D.C. Dep’t of

Consumer & Regulatory Affairs, 191 F. Supp. 2d 154, 159 (D.D.C. 2002); Bancoult v.




                                                 9
McNamara, 227 F. Supp. 2d 144, 149 (D.D.C. 2002).3 Upon review of the record, the Court is

also independently satisfied that plaintiffs’ proposed class meets the requirements of Rule

23(b)(1)(A).

       The Court is also satisfied that plaintiffs’ proposed class meets the requirements of Rule

23(b)(2). A class action may be maintained under Rule 23(b)(2) if “the party opposing the class

has acted or refused to act on grounds that apply generally to the class, so that final injunctive

relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.

Civ. P. 23(b)(2). Rule 23(b)(2) applies “when a single injunction or declaratory judgment would

provide relief to each member of the class.” Wal-Mart Stores, 564 U.S. at 360. Defendants

object to certification under Rule 23(b)(2) on similar grounds to their objections regarding

commonality and typicality: there can be no final injunctive or declaratory relief appropriate for

the class as a whole regarding the DHS/USCIS Security Screening Requirement or DOD’s N-



3
 In their supplemental opposition to plaintiffs’ amended class certification motion, defendants
make one passing reference to Rule 23(b)(1)(B):

       [U]nless USCIS’s decision to wait to schedule a MAVNI soldier for an N-400
       interview until after DoD completes enhanced background checks is illegal under
       8 U.S.C. §1440, which it is not, this Court will, at the conclusion of this case,
       ultimately deny class-wide relief on that claim. Such denial could impair a future
       putative Nio class member’s ability to file his or her own lawsuit to challenge an
       individualized delay based on his or her own circumstances. See Fed. R. Civ. P.
       23(b)(1)(B).

(Defs.’ Supp. Opp. to Pls.’ Mot. for Class Certification, Oct. 24, 2017, ECF No. 66, at 4–5.)
This argument is irrelevant because the Court is not certifying the class under Rule 23(b)(1)(B),
but even if it were relevant, the argument would be misguided because plaintiffs have
represented that “the individualized assessments or particular circumstances of Plaintiffs or
individual class members are not relevant here, [to plaintiffs’ unreasonable-delay claims] where
Plaintiffs are challenging Defendants’ standardized, across-the-board policies that generally
apply to the class.” (Reply in Support of Pls.’ Mot. for Class Certification and Appointment of
Class Counsel, Sept. 22, 2017, ECF No. 52, at 9 n.7; see also id. at 11 (“Because Plaintiffs are
seeking systemic relief, an individualized analysis of ‘every naturalization application’ is neither
appropriate nor necessary.”).)
                                                 10
426 policy because both involve individualized determinations about an enlistee’s fitness.

Again, plaintiffs are only challenging the application of standardized policies that generally

apply to the class: (1) Can USCIS hold applications pending the outcome of DOD’s screening?

and (2) Can DOD rescind N-426s based on its October 13th Guidance? Enjoining these broad

policies or declaring them unlawful is appropriate relief under Rule 23(b)(2).

                                         CONCLUSION

       For the reasons stated above the Court grants plaintiffs’ amended motion for class

certification and appointment of class counsel as further detailed in the Court’s accompanying

Order, ECF No. 72.


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


Date: October 27, 2017




                                                11
