285 F. Supp. 3d 21
D.C. Cir.2017Background
- Three non-citizen Army Reserve MAVNI enlistees (Selected Reserve, Delayed Training Program) sought to naturalize under 8 U.S.C. § 1440 but DOD refused to execute Form N-426 certifying "honorable service," blocking USCIS filing.
- Historically, DOD/Army practice certified N-426s based on past service records (often within days) or at Initial Entry Training (IET); USCIS processed naturalization at IET via an expedited initiative.
- After national-security reviews, DOD adopted enhanced MAVNI screening (Tier 5 investigations, CI reviews, interviews) in 2016, delaying IET and prompting a 2017 policy review that halted new N-426s for MAVNIs.
- On October 13, 2017, DOD issued formal guidance requiring (inter alia) completion of suitability screening, lack of pending disciplinary matters, and sufficient service enabling an "informed determination" before certifying N-426s; prior N-426s not meeting new criteria could be decertified.
- Plaintiffs sued under the APA and mandamus seeking preliminary injunctive relief and provisional class certification (MAVNIs in Selected Reserve lacking a completed N-426 who enlisted before Oct. 13, 2017); the court provisionally certified the class and granted a preliminary injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reviewability of DOD N-426 policy | DOD's N-426 certification is ministerial and judicially reviewable under APA | DOD's certification decision is committed to agency discretion or precluded by §1440 | Reviewable: statute, regs, past practice provide meaningful standards; ministerial function not committed to sole discretion |
| Arbitrary & capricious change (Oct. 13 guidance) | Guidance departs from longstanding practice without reasoned explanation and is thus arbitrary and capricious | Change justified by national security concerns and interpretation of §1440 | Likely arbitrary and capricious: DOD failed to reason adequately for new criteria and to justify tying N-426 certification to screening unrelated to certification purpose |
| Retroactivity / unlawful withholding of action (§706(1)) | New guidance retroactively alters enlistees' rights to expedited naturalization and unlawfully withholds ministerial certification duties | DOD characterizes action as interpretation and asserts discretion to set certification timing | Likely unlawful withholding/impermissibly retroactive as applied to enlistees before Oct. 13, 2017; DOD must expeditiously certify or deny based on existing records |
| Irreparable harm and class relief | Delay prevents filing for naturalization, causes loss of protection from removal and other harms; class of ~2000 similarly situated | Harm speculative; applicants can file later once N-426 issued | Irreparable harm found; balance of equities and public interest favor plaintiffs; provisional class certified for those who enlisted before Oct. 13, 2017 |
Key Cases Cited
- De Beers Consol. Mines v. United States, 325 U.S. 212 (U.S. 1945) (describing nature of preliminary injunctive relief)
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (U.S. 2008) (preliminary injunction factors)
- Nken v. Holder, 556 U.S. 418 (U.S. 2009) (merger of public-interest and balance-of-equities factors when government is a party)
- Block v. Cmty. Nutrition Inst., 467 U.S. 340 (U.S. 1984) (statutory scheme guides whether review is precluded)
- Heckler v. Chaney, 470 U.S. 821 (U.S. 1985) (when agency action is "committed to agency discretion")
- Norton v. S. Utah Wilderness All., 542 U.S. 55 (U.S. 2004) (§706(1) requires discrete, non-discretionary duty to compel action)
- FCC v. Fox Television Stations, 556 U.S. 502 (U.S. 2009) (agency changing longstanding policy must give reasoned explanation)
- Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914 (D.C. Cir. 2017) (principles on agency departures from prior policy)
- Cody v. Caterisano, 631 F.3d 136 (4th Cir. 2011) (court can independently assess honorable service for naturalization purposes)