385 F. Supp. 3d 44
D.C. Cir.2019Background
- MAVNI allowed lawfully present non-citizens with critical skills to enlist and obtain expedited naturalization under 8 U.S.C. § 1440 after honorable service; MAVNIs typically required one day of qualifying Reserve service and USCIS historically processed naturalization quickly.
- DOD progressively imposed enhanced vetting (NIAC name checks, Tier 5/SSBI, CI review) and in Sept. 2016 required a military suitability adjudication (DOD CAF recommendation and Service MSSD) before shipment to Basic Training.
- Delays from the new DOD process led many MAVNIs to remain in the Delayed Training Program (DTP) in ‘‘entry-level’’ status; an entry-level discharge is ‘‘uncharacterized.’n
- On July 7, 2017 USCIS issued guidance pausing MAVNI N-400 adjudications "until all enhanced DoD security checks are completed," which the court interpreted to include waiting for the final MSSD (the "MSSD Requirement").
- Plaintiffs (a certified class of MAVNIs who submitted N-400s) challenged the MSSD Requirement under the APA as arbitrary and capricious and otherwise unlawful; the DOD investigatory phase was later completed for most class members, leaving the MSSD Requirement as the live dispute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether USCIS lawfully may wait for DOD/Army MSSD before processing MAVNI naturalization applications | The MSSD Requirement is arbitrary and capricious because USCIS treats an unfavorable MSSD (leading to an uncharacterized entry-level discharge) as dispositive, so waiting for MSSD adds no relevant information and causes undue delay | Waiting for MSSD ensures USCIS receives adverse information from DOD relevant to good moral character, attachment to the Constitution, and national security before adjudication | Court: Vacated MSSD Requirement as arbitrary and capricious under APA § 706(2)(A); waiting for MSSD runs counter to the administrative record because an unfavorable MSSD simply yields an uncharacterized discharge that USCIS treats as disqualifying, so no additional investigatory value supports the delay |
| Whether review should focus on entire July 7 Guidance or can sever MSSD Requirement | Plaintiffs sought invalidation of MSSD portion; court may sever and set aside only invalid part | Defendants argued court must assess Guidance as a whole | Court: May sever; vacated only the MSSD Requirement and left investigatory-phase waiting (now largely moot) intact |
| Whether remedies should vacate or remand the MSSD Requirement | Plaintiffs sought vacatur and prompt USCIS processing | Defendants urged deference / narrower remedy or remand | Court: Vacatur appropriate; DOD investigatory phase complete for class members so vacatur is not disruptive |
| Whether national-security concerns justify the MSSD Requirement | Plaintiffs: national-security info is generated during the DOD investigatory phase, not by the MSSD itself; MSSD merely triggers an uncharacterized discharge and forecloses USCIS review | Defendants: National-security concerns and derogatory information identified through DOD process justify waiting until adjudication is complete | Court: While national-security concerns can justify waiting for investigatory results, they do not rationally support waiting for the MSSD because MSSD adds no new relevant information to USCIS and in practice forecloses USCIS’s separate statutory adjudication |
Key Cases Cited
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary-and-capricious standard for agency action)
- Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) (agency must provide rational connection between facts and choice)
- Camp v. Pitts, 411 U.S. 138 (1973) (administrative record is focal point for judicial review; limited exceptions exist)
- Amoco Oil Co. v. EPA, 501 F.2d 722 (D.C. Cir. 1974) (post-decisional events may be considered when they bear on agency predictions)
- Catholic Soc. Serv. v. Shalala, 12 F.3d 1123 (D.C. Cir. 1994) (court may set aside only invalid part of agency rule rather than entire rule)