                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
GUNAY MIRIYEVA, et al.,                   )
                                          )
       Plaintiffs,                        )
                                          )
              v.                          )                 Civil Action No. 19-3351 (ESH)
                                          )
U. S. CITIZENSHIP AND IMMIGRATION         )
SERVICES, et al.,                         )
                                          )
       Defendants.                        )
_________________________________________ )


                                 MEMORANDUM OPINION

       Before the Court is yet another case involving immigrants who enlisted in the Unites

States military as part of the MAVNI program.1 These plaintiffs, Gunay Miriyeva, Ann Tum,

Siddhi Kulkarni, and Bipin Kadel, are seeking naturalization under 8 U.S.C. § 1440, which

provides an expedited path to naturalization based on military service during certain periods of

military hostilities. Their applications have been denied by United States Citizen and

Immigration Services (“USCIS”) on the ground that they do not meet the statutory requirements

for naturalization under 8 U.S.C. § 1440(a) because their “uncharacterized” discharges mean that



1
  The MAVNI (“Military Accessions Vital to the National Interest”) program, which was
authorized from 2009 through 2017, allowed non-citizens who were lawfully present in the
United States but not permanent residents to enlist in the military if they possessed critical
foreign language skills or specialized medical training. Three other cases relating the to the
MAVNI program and MAVNI soldiers’ path to citizenship are pending before this Court. See
Nio v. U.S. Dep’t of Homeland Security, No. 17-cv-0998; Kirwa v. U.S. Dep’t of Defense, No.
17-cv-01793; Calixto v. Dep’t of the Army, No. 18-cv-01551. A more detailed description of the
MAVNI program can be found in this Court’s prior opinions. See Nio, 385 F. Supp. 3d 44, 46-
57 (D.D.C. 2019); Kirwa, 285 F. Supp. 3d 257, 263-64 (D.D.C. 2018).
they were not “separated under honorable conditions.” Plaintiffs claim that the USCIS “policy”

that led to the denial of their applications violates the Administrative Procedure Act (“APA”), 5

U.S.C. § 551, et seq., and the United States Constitution. Defendants, USCIS and its Director,

Kenneth Cuccinelli, have moved to dismiss pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). Because the Court agrees with defendants that 8 U.S.C. § 1421 precludes

the current action, their motion to dismiss for lack of jurisdiction will be granted.

                                          BACKGROUND

        STATUTORY AND REGULATORY FRAMEWORK

        A.      Eligibility for Naturalization Based on Military Service (8 U.S.C. § 1440)

        Section 329 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1440, provides

an expedited path to citizenship based on service in the United States Armed Forces during

certain periods of military hostilities. In relevant part, it provides:

        (a) Requirements

        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 [certain specific periods of military hostilities], 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
        ....

        (b) Exceptions

        A person filing an application under subsection (a) of this section shall comply in all
        other respects with the requirements of this subchapter, except that –
        ...

                (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, which shall state whether
                the applicant served honorably in an active-duty status during [a specified
                                                   2
                 period of military hostilities] and was separated from such service under
                 honorable conditions . . . .

8 U.S.C. § 1440 (emphasis added).

          B.     Administrative Naturalization Procedure (8 U.S.C. §§ 1421, 1446, 1447)

          “The sole authority to naturalize persons as citizens of the United States is conferred

upon the Attorney General.” 8 U.S.C. § 1421(a). USCIS is the agency designated to make

naturalization decisions with respect to applicants pursuing naturalization under 8 U.S.C.

§ 1440.2 See 6 U.S.C. § 271(b)(2). An application for naturalization is first decided by a USCIS

examining immigration officer. See 8 U.S.C. § 1446(d). If the application is denied, the

applicant may request a hearing before another immigration officer. 8 U.S.C. § 1447(a); see also

8 C.F.R. § 336.2(a) (“The applicant, or his or her authorized representative, may request a

hearing on the denial of the applicant’s application for naturalization by filing a request with

USCIS within thirty days after the applicant receives the notice of denial.”); USCIS Form N-336

(“Request for Hearing on a Decision in Naturalization Proceedings Under Section 336” 3).

“Upon receipt of a timely request for a hearing, USCIS will schedule a review hearing, within a

reasonable period of time not to exceed 180 days from the date upon which the appeal is filed.”

8 C.F.R. § 336.2(b).4



2
  Prior to 2002, the Attorney General had delegated his naturalization authority to the
Immigration and Naturalization Service (“INS”). 8 C.F.R. § 100.2 (1994). The Homeland
Security Act of 2002, Pub. L. No. 107–296, 116 Stat. 2135 (2002), abolished the INS and
transferred its naturalization authority to the Bureau of Citizenship and Immigration Services
(now USCIS) within the Department of Homeland Security.
3
    Section 336 of the INA is codified at 8 U.S.C. § 1447.
4
    8 C.F.R. § 336.2 establishes the parameters of the administrative review:
          The review will be with an officer other than the officer who conducted the
          original examination or who rendered determination upon which the hearing is
          based, and who is classified at a grade level equal to or higher than the grade of
                                                    3
       C.      Judicial Review (8 U.S.C. § 1421(c))

       If a naturalization application is denied by the USCIS hearing officer, § 1421(c) provides

for judicial review of that denial:

       (c) Judicial review

       A person whose application for naturalization under this subchapter is denied,
       after a hearing before an immigration officer under section 1447(a) of this Title,
       may seek review of such denial before the United States district court for the
       district in which such person resides in accordance with chapter 7 of title 5 [the
       “Judicial Review” chapter in the APA]. Such review shall be de novo, and the
       court shall make its own findings of fact and conclusions of law and shall, at the
       request of the petitioner, conduct a hearing de novo on the application.

8 U.S.C. § 1421(c).

       D.      USCIS Policy Manual

       Pursuant to § 1440, a former service member seeking naturalization must have been

“separated from such service . . . under honorable conditions.” 8 U.S.C. § 1440(a). With

respect to this requirement, the USCIS Policy Manual states:

       Honorable service means only service in the U.S. armed forces that is designated
       as honorable service by the executive department under which the applicant


       the examining officer. The reviewing officer will have the authority and
       discretion to review the application for naturalization, to examine the applicant,
       and either to affirm the findings and determination of the original examining
       officer or to re-determine the original decision in whole or in part. The reviewing
       officer will also have the discretion to review any administrative record which
       was created as part of the examination procedures as well USCIS files and
       reports. He or she may receive new evidence or take such additional testimony as
       may be deemed relevant to the applicant’s eligibility for naturalization or which
       the applicant seeks to provide. Based upon the complexity of the issues to be
       reviewed or determined, and upon the necessity of conducting further
       examinations with respect to essential naturalization requirements, such as
       literacy or civics knowledge, the reviewing immigration officer may, in his or her
       discretion, conduct a full de novo hearing or may utilize a less formal review
       procedure, as he or she deems reasonable and in the interest of justice.

8 C.F.R. § 336.2(b).
                                                4
       performed that military service.

       Both “Honorable” and “General-Under Honorable Conditions” discharge types
       qualify as honorable service for immigration purposes. Other discharge types,
       such as “Other Than Honorable,” do not qualify as honorable service.

USCIS Policy Manual, Vol. 12, Part I, Chapter 3.

       E.      Army Discharge Regulations

       The Army gives four different types of discharges: honorable, general (under honorable

conditions), under other than honorable conditions, and uncharacterized. During the first 180

days of active military service, a service member is considered by the Army to be in “entry-level

status.” See Department of Defense Instruction (“DoDI”) 1332.14, at 55; Army Regulation

(“AR”) 135-178, at 103. If discharged while in entry-level status, the Army classifies the

discharge as “uncharacterized.” AR 135-178, ¶ 2-11 (“Service will be described as

uncharacterized if separation processing is initiated while a Soldier is in an entry level

status . . . .”); see also DoDI 1332.14 at Enclosure 4, 3c.5 Alternatively, if a servicemember is

discharged after he or she is no longer “entry-level,” the Army characterizes the discharge as

either honorable, general (under honorable conditions), or under other than honorable

conditions. AR 135-178, at 103. The characterization of a discharge appears on the

servicemember’s discharge form (Form DD-214, Certificate of Release or Discharge from

Active Duty). (See, e.g., Compl. ¶ 44.)




5
  An entry-level servicemember may receive a different type of discharge in only two
instances: “[w]hen characterization under other than honorable conditions is authorized under
the reason for separation and is warranted by the circumstances of the case,” or when “[t]he
Secretary of the Army, or the Secretary’s designated representative, on a case-by-case basis,
determines that characterization of service as honorable is clearly warranted by the presence of
unusual circumstances involving personal conduct and performance of military duty.” AR 135-
178, ¶ 2-11.
                                                  5
        FACTUAL BACKGROUND

        Each plaintiff served in the United States Army and has applied for naturalization

pursuant to 8 U.S.C. § 1440.

        Miriyeva currently resides in San Diego, California. She enlisted in the Army’s Selected

Reserve of the Ready Reserve in 2016. Her naturalization application was initially approved on

October 4, 2018. But then she was discharged on December 21, 2018, for medical reasons, and

because she had served fewer than 180 days of “active” duty, she received an “entry-level” or

“uncharacterized” discharge. Following her discharge, USCIS revoked its approval of her

naturalization application on the ground that an “uncharacterized” discharge is not a separation

“under honorable conditions.” Miriyeva has filed an N-336 form requesting an administrative

hearing pursuant to 8 U.S.C. 1447(a). As of December 11, 2019, her administrative appeal was

still pending.

        Tum currently resides in Richmond, Kentucky. She enlisted in the Army’s Selected

Reserve of the Ready Reserve in 2016. She was discharged on February 19, 2019, for medical

reasons, and because she had served less than 180 days, she received an “entry-level” or

“uncharacterized” discharge. USCIS then denied her naturalization application on the ground

that an “uncharacterized” discharge is not a separation “under honorable conditions.” Tum filed

an N-336 form requesting an administrative hearing pursuant to 8 U.S.C. 1447(a). The hearing

took place on November 21, 2019, but as of December 11, 2019, there had been no decision.

        Kulkarni currently resides in Warrensburg, Missouri. She enlisted in the Army on

January 22, 2016. She was discharged on December 7, 2018, for medical reasons. Her




                                                6
discharge form indicated that her discharge was “uncharacterized.”6 USCIS denied her

naturalization application on the ground that an “uncharacterized” discharge is not a separation

“under honorable conditions.” Kulkarni filed an N-336 form requesting an administrative

hearing pursuant to 8 U.S.C. 1447(a). Her administrative appeal was denied on October 17,

2019. As of December 21, 2019, she had not sought judicial review pursuant to 8 U.S.C.

§ 1421(c).

       Kadel currently resides in Houston, Texas. He enlisted in the Army on July 24, 2015.

He was discharged on August 4, 2017, with an effective date of July 24, 2017. Because he had

served fewer than 180 days, his discharge was “uncharacterized.” USCIS denied his

naturalization application on the ground that an “uncharacterized” discharge is not a separation

“under honorable conditions.” Pursuant to 8 U.S.C. 1447(a), Kadel filed an N-336 requesting a

hearing. As of December 11, 2019, his appeal was still pending.7

       USCIS has offered virtually the same explanation in each case for its conclusion that an

“uncharacterized” discharge does not constitute a separation “under honorable conditions.” For

example, as to Miriyeva, USCIS stated:

       INA Section 329 requires that if an applicant was separated from service, that he
       or she was separated under honorable conditions. Longstanding USCIS policy
       provides that only a discharge specifically characterized as either “honorable” or
       “general (under honorable conditions)” qualifies as a separation “under honorable
       conditions.” See USCIS Policy Manual Vol. 12, Part I, Chap. 3. Because your


6
  According to the complaint, Kulkarni served more than 180 days and thus should not have
received an “uncharacterized” discharge. (See Compl. ¶ 77.)
7
  The reason given for Kadel’s discharge was that he had exceeded the maximum time allowed
by the MAVNI program. The Army recently offered to reinstate Kadel. According to plaintiffs,
he has accepted that offer (see Pls.’ Opp. to Mot. to Dismiss at 1 n.1, ECF No. 16), but
defendants’ most recent filing states that the Army “has not received any acceptance letter from
[him]” (Defs.’ Reply, Ex. A, ECF No. 17). It is assumed that his case will be moot once he is
reinstated.
                                                7
        character of service is listed as “uncharacterized” on your Certification of Release
        or Discharge from Active Duty, and there is nothing on your Form DD-214 or
        Form N-426 to suggest that your separation was in fact characterized as “under
        honorable conditions,” you have not met your burden to demonstrate that the
        Department of the Army designated your separation as “under honorable
        conditions.” Therefore, you have not met your burden to show that you are
        eligible for naturalization under INA 329 . . . .

(Compl. ¶ 44; see also id. ¶¶ 67, 80, 93 (explanations given to Tum, Kulkarni & Kadel).) Based

on the documents submitted by defendants (see Defs.’ Mot. to Dismiss, Declaration of Claudia

Young ¶ 3 & Exs. 1-5, ECF No. 15-2), it appears that USCIS’s “policy” that treats an

“uncharacterized” discharge as a separation not “under honorable conditions” dates back to

2008.

        PROCEDURAL HISTORY

        A.     Plaintiffs’ Complaint

        Instead of waiting for the conclusion of their administrative appeals and seeking judicial

review pursuant to 8 U.S.C. § 1421(c), plaintiffs filed this case, seeking to challenge USCIS’s

“policy” of treating uncharacterized discharges as not “under honorable conditions.” Their

complaint includes four counts: (1) Count I alleges that the policy violates the APA, 5 U.S.C.

§ 706(2), and seeks an order vacating the policy (Compl. ¶¶ 112-130) ; (2) Count II alleges that

the policy violates the Constitution’s “Uniform Rule of Naturalization” clause and the Fifth

Amendment’s due process clause and seeks “appropriate equitable relief” (Compl. ¶¶ 131-38);

(3) Court III is a claim under the Declaratory Judgment Act, 28 U.S.C. § 2201, and seeks “a

declaratory judgment that uncharacterized discharges satisfy the ‘under honorable conditions’

eligibility requirement under § 1440” (Compl. ¶¶ 139-141); and (4) Count IV seeks injunctive

relief enjoining defendants from “a) . . . applying the Policy; b) . . . denying any naturalization

application or sustaining or maintaining the denial of any naturalization application, including

                                                  8
each Plaintiff’s application, on the grounds that a military naturalization applicant cannot meet

his/her burden of showing an ‘under honorable conditions’ discharge with discharge paperwork

identifying the discharge as ‘uncharacterized’[;] c) . . . treating an uncharacterized discharge

differently than an Honorable or General – Under Honorable Conditions discharge for purposes

of naturalization based on military service[; and] d) . . . denying naturalization applications or

maintaining or sustaining the denial of a naturalization application on the grounds that an

uncharacterized discharge renders a veteran ineligible for naturalization based on his/her military

service.” (Compl. ¶ 146.)8

       B.      Motion to Dismiss

       On November 22, 2019, defendants moved to dismiss plaintiffs’ claims for lack of

subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and for failure to state a claim, Fed. R. Civ.

P. 12(b)(6).9 (See Defs.’ Mot. to Dismiss, ECF No. 15 (“Mot.”)). Plaintiffs filed their opposition

on December 4, 2019 (see Pls.’ Opp. to Mot. to Dismiss, ECF No. 16 (“Opp.”)), and defendants

filed their reply on December 11, 2019 (see Reply, ECF No. 17).

                                            ANALYSIS

       Defendants argue that this case should be dismissed for lack of jurisdiction because (1) 8

U.S.C. § 1421(c) precludes plaintiffs’ claims under the APA and the Constitution; and (2) absent

a viable substantive claim, the Court lacks jurisdiction over the Declaratory Judgment Act claim.




8
 Plaintiffs filed a motion for a preliminary injunction in conjunction with their complaint. (See
Pls.’ Mot. for Preliminary Inj., ECF No. 2.) Pursuant to Fed. R. Civ. P. 65, the Court has
consolidated the preliminary injunction hearing with a hearing on the merits. (See Order, Nov.
13, 2019, ECF No. 13.)
9
 Because plaintiffs had initially moved for a preliminary injunction, the Court set an expedited
briefing schedule for dispositive motions.
                                                  9
Because the Court agrees, it will not address defendants’ other arguments for dismissal.10

       LEGAL STANDARD

       Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a

complaint, or any portion thereof, for lack of subject-matter jurisdiction. Fed. R. Civ. P.

12(b)(1). To survive a motion to dismiss under Rule 12(b)(1), plaintiffs bear the burden of

proving that the Court has subject-matter jurisdiction to hear their claims. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992). When reviewing a motion to dismiss for lack

of jurisdiction under Rule 12(b)(1), a court must “assume the truth of all material factual

allegations in the complaint and ‘construe the complaint liberally, granting plaintiff the benefit of

all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. Fed. Deposit

Ins. Corp., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970,

972 (D.C. Cir. 2005)).

       PRECLUSIVE EFFECT OF 8 U.S.C § 1421(c)

       The narrow question before the Court is whether § 1421(c) precludes the claims of the

four individual plaintiffs who have been denied naturalization because they were separated from

the Army with “uncharacterized” discharges. Those claims purport to challenge the USCIS

“policy” relied on to deny plaintiffs’ naturalization applications. Although plaintiffs insist they

are not asking this Court to reverse the denial of their naturalization applications, their claims

attack head-on the only reason given for the denial of their applications.

       Defendants argue that because plaintiffs must proceed via a § 1421(c) action to challenge




10
   Defendants also argue that plaintiffs’ claims should be dismissed because they failed to
exhaust their administrative remedies, the statute of limitations has expired, and they lack
standing to bring a claim under the Constitution’s Uniform Rule of Naturalization.
                                                 10
the denial of their naturalization applications, they must also bring any challenges to the rationale

underlying USCIS’s denial of their naturalization applications – even if embodied in a “policy” –

in a § 1421(c) proceeding. Plaintiffs do not dispute that Congress intended § 1421(c) to be the

exclusive means for seeking judicial review of the denial of a naturalization application. (See

Opp. at 4 (“[N]owhere do Plaintiffs seek to have their individual denials reviewed by this Court

or to have this Court grant them naturalization.”).)11 But they argue that § 1421(c) does not

preclude them from also bringing a claim under the APA or the Constitution.

        “Litigants generally may seek review of agency action in district court under any

applicable jurisdictional grant.” Jarkesy v. SEC, 803 F.3d 9, 15 (D.C. Cir. 2015). However, “[i]f

a special statutory review scheme exists . . . ‘it is ordinarily supposed that Congress intended that

procedure to be the exclusive means of obtaining judicial review in those cases to which it

applies.’” Id. (quoting City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979)). In order

to determine in a particular case whether “Congress intended that a litigant proceed exclusively

through a statutory scheme of administrative and judicial review,” a court must consider whether

“(i) such intent is ‘fairly discernible in the statutory scheme,’ and (ii) the litigant’s claims are ‘of

the type Congress intended to be reviewed within [the] statutory structure.’” Id. (quoting




11
  Courts are unanimous in holding that § 1421(c) is the sole means of seeking judicial review of
the actual denial of naturalization application. See, e.g., Heslop v. Att’y Gen., 594 F. App’x 580,
584 (11th Cir. 2014); Ngamfon v. U.S. Dep’t of Homeland Sec., 349 F. Supp. 3d 975, 983 (C.D.
Cal. 2018); Monterrubio v. Nielsen, No. 17-cv-3916, 2018 WL 2247223, at *3 (S.D. Tex. May
16, 2018); Hamod v. Kelly, No. 16-cv-1191, 2017 WL 8947276, at *8 (D. Minn. June 12, 2017),
report and recommendation adopted sub nom. Hamod v. Duke, No. 16-cv-1191, 2017 WL
3668762 (D. Minn. Aug. 24, 2017); Maina v. Lynch, No. 1:15-cv-00113, 2016 WL 2594813, at
*3 (S.D. Ind. May 5, 2016); Phong Thi Vu v. Mayorkas, No. 12-cv-1933, 2013 WL 2390557, at
*5-6 (S.D. Cal. May 30, 2013); Kasica v. U.S. Dep’t of Homeland Sec., 660 F. Supp. 2d 277, 282
(D. Conn. 2009).


                                                   11
Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207, 212 (1994) (alteration in original)).

       To answer these questions, courts look at the nature and purpose of the statutory review

scheme, whether the plaintiff’s claim is “wholly collateral” to or “inextricably intertwined” with

the claims covered by the statutory review scheme, and whether a finding of preclusion would

“foreclose all meaningful judicial review” of the claims or whether the statutory review scheme

provides an “adequate remedy.” Id. at 17 (Courts should “‘presume’ that Congress wanted the

district court to remain open to a litigant’s claims ‘if a finding of preclusion could foreclose all

meaningful judicial review; if the suit is wholly collateral to a statute’s review provisions; and if

the claims are outside the agency’s expertise.’” (quoting Free Enter. Fund v. Pub. Co.

Accounting Oversight Bd., 561 U.S. 477, 489-90 (2010))); see also id. at 23 (considering whether

claims were “inextricably intertwined”); McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479,

495-96 (1991) (considering whether the plaintiffs had an “adequate remedy” under the statutory

review scheme because it was “most unlikely that Congress intended to foreclose all forms of

meaningful judicial review” of the plaintiffs’ due process claim); Heckler v. Ringer, 466 U.S.

602, 614, 617 (2013) (considering whether plaintiffs’ had “adequate remedy” and whether claims

were “inextricably intertwined”); Am. Clinical Lab. Ass’n v. Azar, 931 F.3d 1195, 1207 (D.C.

Cir. 2019) (considering whether claims were “inextricably intertwined”); DCH Reg’l Med. Ctr.

v. Azar, 925 F.3d 503, 507 (D.C. Cir. 2019) (same); 5 U.S.C. § 704 (“[A]ctions reviewable”

under the APA are limited to “[a]gency action made reviewable by statute and final agency

action for which there is no other adequate remedy in a court are subject to judicial review.”).12




12
  Although 5 U.S.C. § 704 only applies to APA claims, not constitutional claims, the question
whether there is “no other adequate remedy” is no different than asking whether a finding of
preclusion would foreclose all meaningful judicial review.
                                                  12
These “considerations” are not “distinct inputs into a strict mathematical formula, “but rather

“general guideposts useful for channeling the inquiry into whether the particular claims at issue

fall outside an overarching congressional design.” Jarkesy, 803 F.3d at 17.

       Applying these considerations, the Court concludes that 8 U.S.C. § 1421(c) bars plaintiffs

from bringing their APA and constitutional claims.

       A.      Congress Intended Plaintiffs’ Claims To Be Reviewed Under the Statutory
               Review Scheme

       Section 1421(c) in its current form was enacted as part of the Immigration Act of 1990

(“1990 Act”). Pub. L. No. 101-649, § 401(a), 104 Stat 4978, 5038 (1990). Prior to the 1990 Act,

§ 1421 provided that the power to grant or deny naturalization applications rested entirely with

the courts.13 8 U.S.C. § 1421(a) (1952-1990). The Immigration and Naturalization Service

(INS), an executive agency, played an administrative role, but did not adjudicate naturalization

applications. The 1990 Act, specifically the amendment of § 1421, was designed to create a

system of “administrative naturalization.”14 Decisions on the merits of a naturalization



13
   From the enactment of the Immigration and Nationality Act (“INA”) in 1952 until the 1990
Act, 8 U.S.C. § 1421(a) provided that: “Exclusive jurisdiction to naturalize persons as citizens of
the United States is hereby conferred upon the following specified courts: District courts of the
United States now existing, or which may hereafter be established by Congress in any State,
District Court of the United States for the District of Columbia and for Puerto Rico, the District
Court of the Virgin Islands of the United States, and the District Court of Guam; also all courts
of record in any State or Territory now existing, or which may hereafter be created, having a
seal, a clerk, and jurisdiction in actions at law or equity, or law and equity, in which the amount
in controversy is unlimited . . . .” INA, Pub. L. No. 414, § 310, 66 Stat. 163, 239 (1952); H.R.
Rep. No. 101-187, at 17-18 (1989) (showing version in effect immediately prior to 1990 Act).
14
   See H.R. Rep. No. 101-187, at 10 (“Authority for naturalization is conferred upon the Attorney
General by allowing the applicant for naturalization to commence and culminate the act of
becoming a citizen of the U.S. within one Branch of Government rather than through the current
two-tiered process. Under this legislation the applicant submits an application with the
Immigration and Naturalization Service and shortly thereafter, upon being found statutorily
eligible, a determination is made on the citizenship application by the Attorney General. This one
step procedure addresses the current situation whereby the Immigration and Naturalization
                                                 13
application were now to be made by the Attorney General, with the courts’ role limited to

reviewing those decisions. See 8 U.S.C. § 1421(a) (“The sole authority to naturalize persons as

citizens of the United States is conferred upon the Attorney General.”).

       After the completion of the administrative review, § 1421(c) provides that an applicant

may seek judicial review of the denial of a naturalization application “in accordance with chapter

7 of title 5.” Chapter 7 is the subsection of the APA that provides for judicial review, and by

referring to this chapter, Congress has explicitly made the full scope of APA review available in

a § 1421(c) action. See De Dandrade v. U.S. Dep’t of Homeland Sec., 367 F. Supp. 3d 174, 186-

87 (S.D.N.Y. 2019). Section 1421(c) also provides that review is “de novo, and the court shall

make its own findings of fact and conclusions of law and shall, at the request of the petitioner,

conduct a hearing de novo on the application.” As other courts have noted, the breadth of

judicial review available under § 1421(c) is “rare, if not unique.” See, e.g., Gonzalez v.

Napolitano, No. 2:09-cv-03426, 2010 WL 3522789, at *3 (D.N.J. Sept. 2, 2010) (noting with

respect to § 1421(c) that “[d]e novo review of agency decision-making is rare, if not unique to

the naturalization context”); Nagahi v. INS, 219 F.3d 1166, 1169 (10th Cir. 2000) (noting with

respect to § 1421(c) that “[t]his grant of authority is unusual in its scope—rarely does a district

court review an agency decision de novo and make its own findings of fact”).

       Congress’ enactment of this “special statutory review scheme,” with its broad scope of

review, including a rare de novo standard of review, suggests that Congress intended that

procedure to be the exclusive means of not just obtaining judicial review of the denial of a

naturalization application, but also of claims arising out of or related to a denial. See, e.g., De



Service does virtually all of the processing, makes recommendations to the Court for final
disposition and yet the authority for final disposition of the case rests with the Court.”)
                                                  14
Dandrade, 367 F. Supp. 3d at 186-87 (“Individual plaintiffs should not be permitted to bypass

the legislative scheme [in § 1421(c)] designed to adjudicate and review questions related to their

naturalization applications.”); Aparicio v. Blakeway, 302 F.3d 437, 446 (5th Cir. 2002)

(“Congress intended naturalization applicants to be thus restricted, not out of any desire to vex

them but rather to guarantee that the only people who challenged the INS’s interpretation of the

Act would be those whose applications had been denied and who then worked within the

administrative review system before resorting to the federal courts, with such resort being only

pursuant to section 1421(c).”); see also Elgin v. Dep’t of Treasury, 567 U.S. 1, 11-12 (2012)

(“Given the painstaking detail with which [Congress] sets out the method for covered employees

to obtain review [of agency] actions, it is fairly discernible that Congress intended to deny such

employees an additional avenue of review in district court.”); Citizens for Responsibility &

Ethics in Washington (“CREW”) v. U.S. Dep’t of Justice, 846 F.3d 1235, 1245 (D.C. Cir. 2017)

(“An alternative that provides for de novo district-court review of the challenged agency action

offers further evidence of Congress’ will [to preclude], given the frequent incompat[ibility]

between de novo review and the APA’s deferential standards.” (internal quotations omitted)).

       Plaintiffs‘ contention that the legislative history of the 1990 Act points to the opposite

conclusion (see Opp. at 13) is not persuasive. Plaintiffs point to two pieces of legislative history

to support their argument: (1) a statement that the proposed amendment to § 1421 “does not take

away any of the judicial review rights accorded applicants today,” 135 Cong. Rec. H4539,

H4542 (July 31, 1989) (statement of Rep. Morrison); and (2) a statement made with respect to

§ 1421(c) that “citizenship is the most valued governmental benefit of this land and applicants

should receive full recourse to the Judiciary when the request for that benefit is denied,” H.R.

Rep. No. 101-187, at 14 (1989). After examining the documents cited by plaintiffs and

                                                 15
additional legislative history, the Court concludes that the legislative history does not support

plaintiffs’ argument because plaintiffs ignore the broader context behind the amendment of

§ 1421. Specifically, other legislative history makes it clear that the impetus for the changes to

§ 1421 was the extreme backlog in the courts’ processing of naturalization applications. See 135

Cong. Rec. H4539-02, H4542 (statement of Rep. Morrison) (“This legislation . . . addresses a

very substantial concern that so many of all of our constituents have faced, and that is the

problem of long backlogs in moving through the naturalization process once the time period for

naturalization has been accomplished and the various requirements of naturalization have been

met, delay often runs into the months and sometimes beyond a year before an individual can

actually take his or her oath of allegiance to the United States and become a citizen.”); id.

(“[T]his legislation is directed to change [the previous] process and to create a one-step option

which will allow citizenship to be more expeditiously provided to those who qualify.

Administrative naturalization will restore the most vital elements of our system by which

applicants receive naturalization.”).15

       Given the goal of reducing judicial backlog, which Congress decided to achieve by

reducing the judiciary’s role in the naturalization process, one cannot fairly read the two snippets



15
  See also 135 Cong. Rec. H4539-02, H4543 (statement of Rep. Smith) (“I rise in support of
H.R. 1630, legislation that vests authority for the naturalization of individuals wishing to
become U.S. citizens with the U.S. Attorney General. In addition, this bill streamlines the
process by allowing the Attorney General to adjudicate naturalization petitions. Backlogs in the
naturalization process have developed over a number of years due to an increased volume of
applications for citizenship. In 1981, there were 171,000 petitions filed for naturalization, and in
1985, 306,000 applications were submitted. Personnel and funding levels within the
Immigration and Naturalization Service as well as heavy dockets in the Judiciary have not kept
pace with the demand, especially in heavy-volume areas such as New York and California.
Paperwork backlogs in the executive and judicial branches make the road to citizenship a
lengthy process. In order to streamline the process, H.R. 1630 vests authority for naturalization
with the Attorney General, thus providing a one-step process from application to swearing-in.”).
                                                 16
of legislative history quoted by plaintiffs as evidence that Congress was thinking about, or

intended to preserve, an applicant’s ability to bring an APA or constitutional challenge

independent of a § 1421(c) action. Indeed, given that the 1990 Act created a comprehensive

statutory scheme for administrative naturalization with a specific provision for robust judicial

review, a far more plausible interpretation of those comments is that they reflect Congress’ intent

to ensure that even though the power to naturalize was being taken from the courts, applicants

would still have access to plenary judicial review of unfavorable naturalization decisions.

        B.      Plaintiffs’ Claims Are Not “Collateral”

        One of the most important factors that courts consider in deciding whether a statutory

review scheme precludes a litigant’s claims is whether those claims are “wholly collateral to a

statute’s review provisions.” Jarkesy, 803 F.3d at 17 (internal quotations omitted); see also

Elgin, 567 U.S. at 22; Free Enter. Fund, 561 U.S. at 489-90; Heckler, 466 U.S. at 614. If a

claim is “wholly collateral,” that suggests that “Congress wanted the district court to remain

open” to that claim. Jarkesy, 803 F.3d at 17; see also McNary, 498 U.S. at 492 (finding that

statute prohibiting “direct review of individual denials of [a particular immigration] status” did

not preclude “general collateral challenges to unconstitutional practices and policies used by the

agency in processing applications”); Free Enter. Fund, 561 U.S. at 490 (finding collateral claim

not precluded); Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 680 (1986) (same).

But if a claim is not “collateral,” i.e., if it is “inextricably intertwined” with a claim that must be

brought pursuant to a statutory review scheme, that suggests that Congress intended it be

precluded by the statutory review scheme. Jarkesy, 803 F.3d at 23 (finding preclusion where

plaintiff’s claims were “inextricably intertwined with the conduct of the very enforcement

proceeding the statute grants the SEC the power to institute and resolve as an initial matter”

                                                  17
(internal quotations omitted)).

       In explaining the term “collateral,” courts have concluded that a claim is not “collateral”

where it is “’at bottom’ an attempt to reverse the agency’s decisions denying [plaintiffs’]

claims.” Id. at 23 (quoting Heckler, 466 U.S. at 614, 618). For example, in Jarkesy, the D.C.

Circuit found that the plaintiffs’ “constitutional and APA claims” were not collateral because

they were the “vehicle by which” the plaintiff sought “to prevail in his administrative

proceeding.” Id.; see also Heckler, 466 U.S. at 614 (plaintiffs’ constitutional and statutory

claims were not “collateral” to a scheme of administrative and judicial review of Medicare

payment decisions because plaintiffs’ challenge to the agency’s “procedure” for making those

decisions was, “at bottom,” an attempt to reverse the agency’s decisions denying benefits); Elgin,

567 U.S. at 22 (plaintiffs’ constitutional claims are not collateral where they are nothing more

than “the vehicle by which they seek to reverse the removal decisions, to return to federal

employment, and to receive the compensation they would have earned but for the adverse

employment action”); DCH, 925 F.3d at 506 (claim is not collateral where “a challenge to the

methodology [for calculating Medicare estimates of payments] … is unavoidably a challenge to

the estimates themselves”); Fornaro v. James, 416 F.3d 63, 68-69 (D.C. Cir. 2005) (“systemic”

challenge that would “decide the merits” is not collateral). Collateral claims, by contrast, do not

result in rulings that resolve the merits of the related statutory action. See, e.g., McNary, 498

U.S. at 495 (ruling in plaintiffs’ favor would not have the effect of establishing their entitlement

to the immigration status outside the exclusive statutory scheme); Gen. Elec. Co. v. Jackson, 610

F.3d 110, 126 (D.C. Cir. 2010) (favorable ruling for plaintiff would not resolve the merits of the

underlying claim).

       Here plaintiffs challenge the legal basis for the denial of their naturalization applications.

                                                 18
And, their ultimate goal is to reverse the denial of their naturalization applications. (See Compl.

¶ 146(b) (asking Court to enjoin defendants “from denying any naturalization application or

sustaining or maintaining the denial of any naturalization application, including each Plaintiff’s

application, on the grounds that a military naturalization applicant cannot meet his/her burden of

showing an ‘under honorable conditions’ discharge with discharge paperwork identifying the

discharge as ‘uncharacterized’”) Thus, despite plaintiffs’ argument that they are challenging a

policy and not the denial of their naturalization applications, their policy claims are clearly not

collateral to the claim they would bring in a § 1421(c) action. It follows that they are the “type”

of claim Congress intended to be precluded by § 1421(c). Indeed, plaintiffs never contend that a

non-collateral claim can proceed outside of a § 1421(c) action. See Opp. at 10 (citing cases to

support their contention that “numerous other courts, including in this District, have found APA

jurisdiction to be proper for a challenge to a policy collateral to an INA decision”). Rather, they

start from the premise that their claims, like the claims in McNary and Jackson, are collateral.16

The claims here, however, are not collateral, so the cases that plaintiffs rely on do not help their

case.

        C.     “Meaningful Judicial Review” Will Remain Available

        Another important factor that courts consider in deciding whether a statutory review




16
  Plaintiffs also rely on O.A. v. Trump, Nos. 18-cv-2718, 18-cv-2838, 2019 WL 3536334
(D.D.C. Aug. 2, 2019), where the court held that facial challenge to a rule barring the granting of
asylum to asylum seekers who enter the United States outside a designated port of entry could
proceed independently of plaintiffs’ individual asylum claims. In O.A., though, as in McNary
and Jackson, the court found that the plaintiffs’ claims were “wholly collateral” because they did
not seek to overturn any asylum decision. Id. at *16.



                                                 19
scheme precludes a litigant’s claims is whether preclusion would foreclose “all meaningful

judicial review” of that claim or whether an “adequate remedy” would remain available. See

McNary, 498 U.S. at 496 (finding no preclusion where “if not allowed to pursue their claims in

the District Court, [plaintiffs] would not as a practical matter be able to obtain meaningful

judicial review”); Heckler, 466 U.S. at 617 (finding preclusion where plaintiffs “clearly have an

adequate remedy under [a statute] for challenging all aspects of the Secretary’s denial of their

claims for payment”); Jarkesy, 803 F.3d at 19 (finding preclusion where all claims would

eventually reach an Article III judge and receive meaningful judicial review). The expansive

judicial review provided for by § 1421(c) means that not only are plaintiffs not foreclosed from

“all meaningful judicial review,” but § 1421(c) is an “adequate remedy” for their claims.

       First, as previously noted, § 1421(c) provides that an applicant may seek judicial review

of the denial of a naturalization application “in accordance with chapter 7 of title 5,” making

available the full scope of APA review. Section 706 of the APA defines the scope of that

review. In relevant part, it provides:

       To the extent necessary to decision and when presented, the reviewing court shall
       decide all relevant questions of law, interpret constitutional and statutory
       provisions, and determine the meaning or applicability of the terms of an agency
       action. The reviewing court shall –
       ...

       (2) hold unlawful and set aside agency action, findings, and conclusions found to
       be –
               (A) arbitrary, capricious, an abuse of discretion, or otherwise not in
               accordance with law;

               (B) contrary to constitutional right, power, privilege, or immunity;

               (C) in excess of statutory jurisdiction, authority, or limitations, or short of
               statutory right; [or]

               (D) without observance of procedure required by law . . . .

                                                 20
5 U.S.C. § 706(2). Second, § 1421(c) provides that review is “de novo, and the court shall make

its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct

a hearing de novo on the application.”

       Together, these two provisions are critical to the Court’s conclusion that § 1421(c)

provides an “adequate remedy.” First, plaintiffs’ current claims challenge the policy used to

deny their applications as contrary to law, arbitrary and capricious, procedurally flawed and

unconstitutional. Because these are claims that are cognizable under § 706(2) of the APA, and

because the full scope of APA review is available in a § 1421(c) action, plaintiffs will be able

raise these same arguments under § 1421(c), including their constitutional claims, as they are

raising here.17 See De Dandrade, 367 F. Supp. 3d at 186-87 (plaintiffs’ APA and constitutional

claims can be brought under § 1421(c)). In addition, de novo review means that the reviewing

court is not limited to the administrative record. See Aparicio, 302 F.3d at 445 (“Judicial review

of naturalization denials . . . is not limited to any administrative record but rather may be on facts

established in and found by the district court de novo.”); Gonzalez, 2010 WL 3522789, at *1

(§ 1421(c) allows for “broad discovery consistent with the Federal Rules”). Thus, there is no

concern that considering plaintiffs’ statutory and constitutional claims in a § 1421(c) action will

be hampered by not having an adequate record. Compare McNary, 498 U.S. at 497 (finding

remedy inadequate in part because a court of appeals could only review the administrative record

and thus lacked a district court’s “factfinding and record-developing capabilities”) and



17
  Plaintiffs contend that they will not be able to raise their “notice and comment” or
“publication” claims in a § 1421(c) action. (See Opp. at 13.) However, they fail to cite any
authority to support this conclusion. Moreover, the text of § 1421(c) suggests otherwise as it
expressly provides for the full scope of APA review, and at least one court has recognized that a
notice and comment claim can be raised in a § 1421(c) proceeding. See De Dandrade, 367 F.
Supp. 3d at 186-87.
                                                 21
Jafarzadeh v. Duke, 270 F. Supp. 3d 296, 310 (D.D.C. 2017) (no “effective judicial review” of

APA and constitutional claims where the “plaintiffs would be constrained to an inadequate

record”) with Jarkesy, 803 F.3d at 21 (finding remedy adequate in part because “this is not a case

in which meaningful judicial review likely would be thwarted by an inadequate factual record”).

The plenary review available to plaintiffs under § 1421(c) stands in stark contrast to the limited

or nonexistent review in McNary and its progeny, where courts have concluded that plaintiffs’

claims were not precluded.

        Finally, this case presents none of the other concerns that lead courts to find that an

alternative remedy is not “adequate.” For example, courts “normally do not require plaintiffs to

‘bet the farm . . . by taking the violative action’ before ‘testing the validity of the law.’” Jarkesy,

803 F.3d at 20 (quoting MedImmune, Inc., v. Genentech, Inc., 549 U.S. 118, 129 (2007)). Thus,

in McNary, the court found no preclusion where the plaintiffs could ensure judicial review only

if they “voluntarily surrender[ed] themselves for deportation,” which was “tantamount to a

complete denial of judicial review for most undocumented aliens.” 498 U.S. at 496. But

plaintiffs here are not in that situation. Nor is this a situation where there are significant

differences in the type of relief available. See, e.g., Bowen v. Massachusetts, 487 U.S. 879, 901-

08 (1988) (action in Claims Court did not provide adequate remedy because court lacked the

equitable powers of a district court and would only be able to award monetary relief ). Plaintiffs

argue that the relief available in a § 1421(c) action is substantially different than that which they

can obtain here because they cannot obtain a nationwide injunction or vacatur of the policy in a §

1421(c) action. But even if that were true, there is no requirement that the alternative remedy be

identical. See, e.g., CREW, 846 F.3d at 1244-46 (under § 704, an “’alternative remedy need not

provide relief identical to relief under the APA’ in order to have preclusive effect” (quoting

                                                  22
Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009))). And significantly, plaintiffs will be

able to obtain the same individual relief. De Dandrade, 367 F. Supp. 3d at 187 (“All relief that

individual plaintiffs seek [under the APA and the Constitution] may be granted under section

1421(c).”); see also Garcia, 563 F.3d at 525 (availability of individual actions “may be adequate

even if such actions cannot redress the systemic [issues]” because “situation-specific litigation

affords an adequate, even if imperfect, remedy” (internal quotations omitted)); Council of & for

the Blind of Delaware Cty. Valley, Inc. v. Regan, 709 F.2d 1521, 1532 (D.C. Cir. 1983) (“Even if

. . . one nationwide suit would be more effective than several [individual] suits, that does not

mean that the remedy provided by Congress is inadequate.”) Finally, the mere fact that plaintiffs

will have to await the outcome of their administrative hearings before seeking judicial review

pursuant to § 1421(c) does not render the remedy inadequate.18 See Jafarzadeh, 270 F. Supp. 3d

at 308 (“[A]a court must guard against a plaintiff who seeks ‘to short-circuit the administrative

process through the vehicle of a district court complaint.’” (quoting Sturm, Ruger & Co. v. Chao,

300 F.3d 867, 876 (D.C. Cir. 2002)).

       The few courts to have considered the issue presented by this case have all concluded that

§ 1421(c) provides an adequate remedy for APA and constitutional claims related to the denial of

naturalization applications. See De Dandrade, 367 F. Supp. 3d at 186-87 (plaintiffs’ APA and

constitutional claims can be brought under § 1421(c)); Aparicio, 302 F.3d at 447; Phong Thi Vu

v. Mayorkas, No. 12-cv-1933, 2013 WL 2390557, at *4-6 (S.D. Cal. May 30, 2013); Kasica v.

U.S. Dep’t of Homeland Sec., 660 F. Supp. 2d 277, 282-83 (D. Conn. 2009). This Court agrees



18
   There is no guarantee that pursuing one’s remedies under § 1421(c) will consistently be
slower. In the case of plaintiff Kulkarni, she could have gone to federal court as early as October
17, 2019, but she has still not initiated suit. Obviously, the process will be slowed down if a
plaintiff does not invoke her § 1421(c) rights expeditiously.
                                                 23
with the reasoning of these cases. Because § 1421(c) provides an alternative “adequate remedy,”

this factor, as well as all other relevant factors, support the conclusion that Congress intended §

1421(c) to preclude plaintiffs’ claims.

       DECLARATORY JUDGMENT ACT

       The Declaratory Judgment Act “’is not an independent source of federal jurisdiction.’”

C&E Servs., Inc. v. D.C. Water & Sewer Auth., 310 F.3d 197, 201 (D.C. Cir. 2002) (quoting

Schilling v. Rogers, 363 U.S. 666, 677 (1960)). “Rather, ‘the availability of [declaratory] relief

presupposes the existence of a judicially remediable right.’” Id. (quoting Schilling, 363 U.S. at

677). Thus, having concluded that the Court lacks jurisdiction over plaintiffs’ APA and

constitutional claims, it must also dismiss their claim under the Declaratory Judgment Act.19

                                          CONCLUSION

       For the reasons stated above, the Court concludes it lacks subject matter jurisdiction over

plaintiffs’ claims. Since plaintiffs’ substantive counts under the APA and the Constitution

(Counts I & II) are precluded by 8 U.S.C. § 1421(c), the Court also lacks jurisdiction over the

claim under the Declaratory Judgment Act (Count III). Accordingly, defendant’s motion to

dismiss for lack of subject matter jurisdiction is granted. A separate Order accompanies this

Memorandum Opinion.



                                                       _______________________
                                                       ELLEN S. HUVELLE
                                                       United States District Judge
Date: December 21, 2019


19
   Count IV of the complaint purports to be a separate claim for injunctive relief, but, as no such
claim or cause of action exists, it is really just “a request that the Court grant a particular form of
relief (an injunction) to redress the other claims plaintiffs assert.” Guttenberg v. Emery, 41 F.
Supp. 3d 61, 70 (D.D.C. 2014).
                                                  24
