Kirwa v. United States Department of Defense, Civil Action No. 2017-1793

Background

Three non‑citizen MAVNI enlistees (Selected Reserve/Delayed Training Program) signed enlistment contracts promising expedited naturalization under 8 U.S.C. § 1440 but were denied completed Form N‑426s (certifying "honorable service") and thus cannot file N‑400s.
Historically DOD/Service practice certified N‑426s based on an applicant’s existing service record (often within days) so applicants could naturalize at or shortly after Initial Entry Training (IET).
Beginning Sept. 30, 2016, DOD imposed enhanced security screening for MAVNI enlistees (Tier 5 investigations, NIAC, CI review, possible polygraph), delaying IET and in many cases pushing screening well beyond months.
In spring–summer 2017 the Army stopped issuing new N‑426s to MAVNIs in the Delayed Training Program; on Oct. 13, 2017 DOD issued formal guidance requiring completion of security/suitability vetting and other conditions before certifying N‑426s (applied retroactively to pre‑Oct. 13 enlistees).
Plaintiffs sued under the APA and for mandamus; they sought provisional class certification and a preliminary injunction to require DOD to promptly certify or deny N‑426s based on existing records for MAVNIs who enlisted before Oct. 13, 2017.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether DOD’s N‑426 certification decisions are judicially reviewable	DOD’s certification is ministerial and subject to judicial review because §1440 and regulations supply meaningful standards tied to past service	DOD claims certification/timing is committed to agency discretion or outside judicial review	Court: Reviewable; meaningful statutory/regulatory standards exist and certification is ministerial, not unreviewable discretion
Whether Oct. 13, 2017 Guidance is arbitrary and capricious / unlawfully changes past practice	Guidance departs from longstanding practice without reasoned explanation, effectively imposing new requirements that delay N‑426s and naturalization; change is impermissible	DOD defends Guidance as needed for national security and as an interpretation of statutory requirements	Court: Likely arbitrary and capricious — DOD failed to provide reasoned explanation and national‑security rationale does not justify linking N‑426 certification to enhanced screening
Whether Guidance is impermissibly retroactive	Applying new criteria to enlistees who relied on prior practice alters legal expectations and attaches new consequences to completed enlistments	DOD contends it is interpreting §1440 (not retroactive rulemaking) and that screening is necessary	Court: Guidance changes legal landscape and may be impermissibly retroactive; harms and inequities for pre‑Oct.13 enlistees weigh against retroactivity
Whether DOD unlawfully withheld/ delayed a discrete ministerial action under APA §706(1)	DOD has a non‑discretionary duty to act on N‑426s based on existing records; its withholding is unlawful and plaintiffs likely entitled to compel certification or denial	DOD has broad procedural discretion and can require suitability vetting before certifying	Court: Plaintiffs likely to succeed on §706(1) claim for pre‑Oct.13 enlistees with qualifying past service; DOD must expeditiously certify/deny based on existing records

Key Cases Cited

Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (standard for preliminary injunction)
Heckler v. Chaney, 470 U.S. 821 (1985) (agency action committed to discretion doctrine)
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) (requirements for compelling agency action under §706(1))
FCC v. Fox Television Stations, 556 U.S. 502 (2009) (agency must provide reasoned explanation for policy changes)
Block v. Community Nutrition Institute, 467 U.S. 340 (1984) (whether statute precludes judicial review determined from text, structure, history)
Twentymile Coal Co. v. Sec’y of Labor, 456 F.3d 151 (D.C. Cir. 2006) (meaningful standard for review of agency action)