1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *
7 THOMAS X. KOTAB, Case No. 2:18-cv-2031-KJD-CWH
8 Plaintiff, ORDER
9 v.
10 U.S. DEPARTMENT OF THE AIR FORCE, et al., 11 Defendants. 12
13 Presently before the Court is Defendants’ Motion to Dismiss (#11). Plaintiff filed a 14 response in opposition (#15) to which Defendants replied (#16). Defendants also filed Notice of 15 Supplemental Authority (#17) and Notice of New Screening Policy (#18). 16 I. Background 17 The U.S. Department of Defense (“DoD” or “the Department”) administers the 18 enlistment of recruits into the Armed Forces. Consistent with 10 U.S.C. § 504, DoD permits the 19 accession of recruits who meet certain citizenship or residency requirements or otherwise possess 20 a critical skill or expertise. Among those permitted to enlist are U.S. nationals; lawful permanent 21 residents (“LPRs”); and citizens from the Federated States of Micronesia, the Republic of the 22 Marshall Islands, and Palau. Regardless of an enlistee’s citizenship or residency, DoD conducts a 23 background investigation to determine whether he or she meets certain suitability and security 24 requirements and is otherwise qualified to serve. 25 Prior to October 13, 2017, DoD permitted U.S. nationals and LPRs to ship to basic 26 training before completion of their background investigations. However, DoD subsequently 27 determined it is not in the interest of the United States to permit LPRs’ entry into service until 28 their background investigations are completed. Thus, on October 13, 2017, DoD issued a 1 memorandum (“LPR Memo”) providing that suitability and security determinations for LPRs 2 must be finalized prior to these enlistees’ entry into service. The LPR Memo primarily effects the 3 timing of the enlistee’s accession and not other terms on which LPRs enter service. 4 Also on October 13, 2017, DoD issued a memorandum pertaining to the expedited path to 5 U.S. citizenship applicable to foreign enlistees (“Certification Memo”). Pursuant to the 6 Certification Memo, the armed service (Air Force Reserve in this action) will not certify a 7 service member’s honorable service—a requirement for expedited naturalization—until that 8 member has completed at least 180 days of active duty service, including completion of basic 9 training. Such certification is made on USCIS Form N-426, a requirement for naturalization 10 based on military service. See 8 U.S.C. § 1440(a). 11 On October 22, 2018, Plaintiff, a LPR who seeks to enlist with the Air Force, filed suit to 12 challenge portions of the LPR Memo and Certification Memo (collectively, the “October 13 13 Memos”). Asserting claims under the Fifth Amendment to the U.S. Constitution and the 14 Administrative Procedure Act (“APA”), Plaintiff seeks both declaratory and injunctive relief, 15 including an order requiring revocation of the October 13 Memos.1 16 II. Statutory Background 17 A. 10 U.S.C. § 504 18 The Constitution assigns to Congress and the President the responsibility to establish the 19 nation’s armed forces and to employ them for the protection of the nation’s security. U.S. Const. 20 art. I, § 8, cls. 12-14 & art. II, § 2, cl. 1. Consistent with this authority, Congress has enacted 21 legislation concerning who may, and who may not, serve in the Armed Forces. With respect to 22 citizenship and residency, Congress has specified in 10 U.S.C. § 504(b) that “[a]person may be 23 enlisted in any armed force only if the person is” (1) “[a] national of the United States”; (2) “[a]n 24 alien who is lawfully admitted for permanent residence”; or (3) “[a] person described in section 25 26 1 Plaintiff has joined a separate class action, Kuang v. U.S. DoD, No. 18-CV-03698 (N.D. Cal.), which challenges the timing of his shipment to initial entry training. While this case had been temporarily stayed on the basis 27 that Plaintiff was going to be allowed to start training before his background check and certification had been completed, Plaintiff’s entry into initial training has been delayed and the action is no longer stayed. Plaintiff, however, 28 has agreed to join the class in Kuang and litigate those claims there. Only the Certification Memo is now before the Court. 1 341” of compacts between the United States and the Federated States of Micronesia, the 2 Republic of the Marshall Islands, and Palau.10 U.S.C. § 504(b). Beyond a prohibition against 3 enlisting individuals “who [are] insane, intoxicated, or a deserter from an armed force, or who 4 ha[ve]been convicted of a felony,” id.§ 504(a), Congress has provided no additional 5 requirements or guidance concerning the enlistment of persons otherwise meeting the citizenship 6 or residency criteria, see id. 7 Section 504(b), however, represents only the most recent Congressional pronouncement 8 concerning who may serve in the military. That policy has varied widely for at least 120 years. 9 For example, in 1894, Congress approved legislation providing that “in time of peace no person 10 (except an Indian) who is not a citizen of the United States, or who has not made legal 11 declaration of his intention to become a citizen of the United States, or who cannot speak, read, 12 and write the English language, or who is over thirty years of age, shall be enlisted for the first 13 enlistment in the Army.” An Act To Regulate Enlistments in the Army of the United States, 14 Chap. 179, § 2, 28 Stat. 215, 216 (1894). Approximately 50 years later, the Selective Service Act 15 of 1948 authorized the induction of male aliens. Pub. L. No. 80-759, §§ 3-4, 62 Stat. 604, 605- 16 606 (1948). In enacting that statute, Congress considered, but ultimately rejected, a proposal to 17 authorize the temporary enlistment of aliens. See Conf. Rep. 80-2438,2012 (June 19, 1948). 18 Shortly thereafter, Congress suspended the aforementioned 1894 statute and provided for the 19 temporary enlistment of aliens into the Army, Pub. L.No. 81-597, 64 Stat. 316, 316 (1950). See 20 also Pub. L. No. 84-149, 69 Stat. 297, 297 (1955); Pub. L. No. 85-116, 71 Stat. 311, 311 (1957). 21 In 1956, Congress passed comprehensive legislation regarding the Armed Forces, 22 including the criteria for enlistment. Pub. L. No. 84-1028, 70A Stat. 1(1956). With respect to the 23 Army, the statute provided that “[i]n time of peace, no person may be accepted for original 24 enlistment in the Army unless he is, or has made a legal declaration of intention to become, a 25 citizen of the United States.” Id.§ 3253(c), 70A Stat. 178. The same restriction applied to the Air 26 Force. Id. § 8253(c), 70A Stat. 503. Five years later, Congress amended these provisions to allow 27 for the enlistment of LPRs. Pub. L. No. 87-143, 75Stat. 364, 364 (1961). As reflected in the 28 legislative history, Congress enacted these provisions primarily to facilitate the enlistment of 1 those aliens who were inducted into the Armed Forces and who “desire[d]to … make a career of 2 the military service,” but “due to overseas assignment or other circumstances [were] unable to 3 comply with the present law requiring an alien to show evidence or inclination to become a 4 citizen prior to acceptance for enlistment.” H.R. Rep. No. 86-1776 at 2 (June 9, 1960); see also 5 Pub. L. No. 88-236, 77 Stat. 474, 474 (1963) (removing “declaration of intent” requirement). 6 Congress enacted the current version of 10 U.S.C. § 504 in 2006, making uniform the citizenship 7 and residency requirements across the Armed Forces. See National Defense Authorization Act 8 for Fiscal Year 2006, Pub. L. No. 109-163 § 542, 119 Stat. 3136, 3253 (2006). 9 While the value of LPRs’ service in the Armed Forces is indisuputable, there are 10 longstanding national security concerns associated with permitting aliens to serve in the military. 11 In 1894, when a sufficient pool of potential soldiers could be found among U.S. citizens, 12 Congress determined that “no consideration appears to justify the enlistment of soldiers in the 13 permanent Army of the United States who may owe allegiance to some foreign and possibly 14 unfriendly power.” S. Rep. No. 53-151 at 3 (1894). And when Congress ultimately permitted 15 aliens to enlist, both the Legislative and Executive Branches ensured that the military was 16 conducting appropriate security screenings to address such concerns. S. Rep. 84-132 at 2 (1955) 17 (“The alien enlistment program … did not go into effective operation on the date of the original 18 enactment because of the very considerable period of time needed to perfect the screening 19 arrangements and measures of coordination between the various Government departments 20 concerned”); Hearing on S. 1137 Before the S. Comm. on Armed Services, 84th Cong. at 7 (Mar. 21 31, 1955) (statement of Maj. Gen. Donald P. Booth) (“In addition to the emphasis on quality, 22 great care has been taken to insure the strictest possible security screening”); Hearing on H.R. 23 8122 Before the S. Comm. on Armed Services2456(July 2, 1957) (statement of Col. George A. 24 Aubrey) (“[W]e have deliberately set high standards for enlistment under this program—higher 25 than the standard for enlistment of American citizens … Only 1 applicant out of 9 has been able 26 to meet the rigid mental testing and security screen criteria”). The record also indicates that the 27 military resolved these security concerns prior to permitting aliens to enter into service. See 28 Hearing on S. 1137 Before the S. Comm. on Armed Services (Executive Session), 84th Cong. 3 1 (Mar.31, 1955) (statement of Maj. Gen. Donald P. Booth) (“We have very carefully screened 2 these people before we even permitted them to be enlisted”). 3 LPRs can gain expedited citizenship under the provisions of 8 U.S.C. § 1439, which 4 provides that LPRs who have at least one year of honorable service in the military may be 5 naturalized without having to fulfill continuous residency requirements. However, during a 6 period of declared hostilities, procedures for naturalization under 8 U.S.C. § 1440 take 7 precedence over those under 8 U.S.C. § 1439. See DoD Instruction (“DoDI”) 5500.14.2 8 Pursuant to § 1440, enlisted aliens may apply for citizenship regardless of length of military 9 service, provided they have “served honorably.” 8 U.S.C. § 1440. “The executive department 10 under which such person served shall determine whether persons have served honorably in an 11 active-duty status, and whether separation from such service was under honorable conditions[.]” 12 Id. 13 B. Regulatory Background 14 DoD has promulgated regulations and issued directives regarding certain aspects of a 15 recruit’s entry into service. See generally 32 C.F.R. Part 66. For example, DoD regulations 16 provide that it is the Department’s policy to “(a) [u]se common entrance qualification standards 17 for enlistment, appointment, and induction into the Military Services,” and “(b)[a]void 18 inconsistencies and inequities based on ethnicity, gender, race, religion, or sexual orientation in 19 the application of these standards by the Military Services.” Id. § 66.4. DoD has also 20 promulgated regulations concerning basic eligibility criteria, including age, citizenship, 21 education, aptitude, medical standards, physical fitness, dependency status, character and 22 conduct, and history of drugs and alcohol. Id. § 66.6(b). The criteria regarding citizenship track 23 10 U.S.C. § 504. See 32 C.F.R. § 66.6(b)(2)(i) (“To be eligible for Regular or Reserve 24 enlistment, an individual must meet one of the conditions outlined in 10 U.S.C. 504(b)[.]”). 25 As relevant here, DoD’s enlistment regulation also provides that “[t]he underlying 26 purpose of these enlistment, appointment, and induction standards is to minimize entrance of 27 persons who are likely to become . . . security risks.” Id. § 66.6(b)(8). In furtherance of that goal,
28 2 https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/550014p.pdf 1 a recruit will generally be deemed ineligible to enlist if he or she “[r]eceives an unfavorable final 2 determination by the DoD Consolidated Adjudication Facility on a completed National Agency 3 Check with Law and Credit (NACLC) or higher-level investigation, which is adjudicated to the 4 National Security Standards in accordance with Executive Order 12968, during the accession 5 process.” Id. § 66.6(b)(8)(vi). The regulation nevertheless authorizes—but does not require—a 6 recruit to enter into service prior to completion of the background investigation: 7 (A) An applicant may be accessed (including shipping him or her to training or a first duty assignment) provided that a NACLC or 8 higher-level investigation was submitted and accepted by the investigative service provider (Office of Personnel Management 9 (OPM)) and an advanced fingerprint was conducted, and OPM did not identify any disqualifying background information. 10 (B) If NACLC adjudication is not completed until after accession, 11 any additional disqualifying information identified during the adjudication should be transmitted to the appropriate personnel or 12 human resource offices, as determined by the Services, for appropriate action. 13 14 Id. § 66.6(b)(8)(vi)(A). 15 DoD has also issued guidance concerning enlistment standards. For instance, a DoD 16 manual provides that the “enlistment . . . of each member of the Military Departments or their 17 Reserve Components will be based on a favorably adjudicated [personnel security 18 investigation].” DoD Manual 5200.02, “Procedures for the DoD Personnel Security Program 19 (PSP),”§ 4.2(a) (Apr. 3, 2017). The DoD manual further states that “[t]he NACLC, or its 20 equivalent, is the minimum investigation required for entry into the Military Departments.” Id. § 21 4.2(b). With respect to security determinations, DoD relies on guidelines issued by the Director 22 of National Intelligence. See Office of the Dir. of Nat’l Intelligence, Security Executive Agent 23 Directive 4: National Security Adjudicative Guidelines (June 8, 2017). Those guidelines describe 24 13 areas for consideration of whether an individual presents “an acceptable security risk,” id. at 25 6, including allegiance to the United States, foreign influence, and foreign preference, id. at 8-11. 26 Prior to October 13, 2017, DoD policy “allow[ed]for LPR recruits to ship to initial 27 military training as long as their background investigation had been initiated, and they had 28 cleared all other entry screening requirements.” Also prior to October 13, 2017, the service 1 departments provided honorable service certifications in as few as one or two days after 2 commencement of basic training. 3 C. The October 13 Memos 4 On October 13, 2017, the Under Secretary of Defense for Personnel and Readiness issued 5 a memorandum regarding military service suitability and security determinations for LPRs. See 6 generally LPR Memo, attached to Complaint (#1). as Exhibit A, ECF No. 1-1. The LPR Memo 7 required that, “effective immediately a Military Service Suitability Determination (MSSD) and 8 National Security Determination (NSD) will be made prior to [a LPR’s] entry into Active, 9 Reserve, or Guard Service.” Id. at 1. Once the LPR’s background investigation is completed, 10 “the DoD Consolidated Adjudications Facility (DoD CAF) will attempt to render favorable 11 MSSD and NSD recommendations” by applying Directive 4. Id. The LPR Memo explained that 12 the purpose of the new policy was grounded in national security concerns. See id. (issued to 13 “facilitate process efficiency and the appropriate sharing of information for security risk based 14 suitability and security decisions”). The LPR Memo did not affect the scope of the background 15 investigation that LPRs undergo in connection with their enlistment. See id. 16 DoD also issued the Certification Memo on October 13, 2017. See generally Certification 17 Memo, attached to Complaint (#1) as Exhibit B. That memo provides guidance regarding the 18 certification of honorable service in support of a foreign-born service member’s application for 19 naturalization under 8 U.S.C § 1440. Id. With respect to service members in an active 20 component, the memo instructs the component to certify honorable service on USCIS Form N- 21 426 only if the member has “[s]uccessfully completed the basic training requirements of the 22 armed force of which he/she is a member,” “[c]ompleted at least 180 days of active duty service, 23 inclusive of the successful completion of basic training,” and “[t]he characterization of the 24 member’s service is honorable, as determined by the Secretary of the Military Department 25 concerned.” Id. at 2. 26 D. Plaintiff’s Complaint 27 On October 22, 2018, Plaintiff Thomas X. Kotab, proceeding pro se, filed the instant 28 action against DoD; the Department of the Air Force; Heather Ann Wilson, in her official 1 capacity as Secretary of the Air Force; Anthony M. Kurta, in his official capacity as performing 2 the duties of Under Secretary of Defense for Personnel and Readiness; and Stephanie P. Miller, 3 in her official capacity as Director of Military Accession Policy. Complaint (#1)., ECF No. 1, at 4 1-2. Plaintiff alleges he is a LPR who seeks to join the Air Force Reserves. Id. at 5. According to 5 Plaintiff, a recruiter from the Air Force Reserves “refused to present the enlistment document to 6 me for signature, blaming the new policy [i.e., the LPR Memo].” Id. at 8. He further claims that, 7 as a result of the October 13 Memos, he has suffered a variety of injuries, including the military 8 “forever clos[ing] some doors in [his] future” and “prevent[ing] [him] from taking advantage of 9 naturalization after one day of service.” Id. at 5. In connection with these claims, Plaintiff asserts 10 causes of action under the Fifth Amendment and the APA, id. at 3, and he asks the Court, inter 11 alia, to “issue a judgment declaring the memos unconstitutional and illegal as applied to me and 12 issue an injunction enjoining the defendants from enforcing and implementing these memos on 13 me,” Id. at 5. 14 III. Standard for a Rule 12(b)(1) 15 A Rule 12(b)(1) motion challenges a federal court’s jurisdiction over the subject matter 16 of the complaint. The party invoking the court’s jurisdiction bears the burden of establishing that 17 the court has the requisite subject-matter jurisdiction to grant the relief requested. Kokkonen v. 18 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A court must grant a Rule 12(b)(1) 19 motion when, looking at the entirety of the complaint, its allegations fail to establish jurisdiction 20 either facially or factually. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 21 While in a facial attack, all material allegations are taken as true, the court does not assume the 22 truthfulness of the allegations in a factual attack and may review evidence beyond the complaint 23 without converting the motion into one for summary judgment. In re Digimarc Corp. Derivative 24 Litig., 549 F.3d 1223, 1236 (9th Cir. 2008). 25 To withstand a motion to dismiss under Rule 12(b)(6) for failure to state a claim, a 26 complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that 27 is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 28 Twombly, 550 U.S. 544, 570 (2007)). Mere “labels and conclusions” and “naked assertion[s] 1 devoid of further factual enhancement” are not sufficient. Id. at 678 (citation omitted). Rather, a 2 court must disregard “pleadings that, because they are no more than conclusions, are not entitled 3 to the assumption of truth,” and determine whether the remaining “well-pleaded factual 4 allegations . . . plausibly give rise to an entitlement to relief.” Id. at 679; see also Zixiang Li v. 5 Kerry, 710 F.3d 995, 998-99 (9th Cir. 2013). 6 IV. Analysis 7 A. Plaintiff’s Challenge to the Certification Menu is Non-Justiciable 8 Congress and the President are constitutionally responsible for establishing the nation’s 9 armed forces and employing them for the protection of the nation’s security. U.S. Const. art. I, § 10 8, cls. 12–14 & art. II, § 2, cl. 1. “[I]t is the primary business of armies and navies to fight or be 11 ready to fight wars should the occasion arise[, and] [t]he responsibility for determining how best 12 our Armed Forces shall attend to that business rests with Congress and with the President.” 13 Schlesinger v. Ballard, 419 U.S. 498, 510 (1975) (internal citations omitted). Accordingly, courts 14 extend great deference to the military when called to review the “‘complex, subtle, and 15 professional decisions as to the composition, training, equipping, and control of a military force,’ 16 which are ‘essentially professional military judgments.’” Winter v. Nat. Res. Def. Council, 555 17 U.S. 7, 24 (2008) (quoting Gilligan v. Morgan, 413 U.S. 1, 10 (1973)). As the Supreme Court 18 has repeatedly emphasized, “it is difficult to conceive of an area of governmental activity in 19 which the courts have less competence.” Gilligan, 413 U.S. at 10; see also North Dakota v. 20 United States, 495 U.S. 423, 443 (1990) (noting that when confronted with questions relating to 21 military operations, courts “properly defer to the judgment of those who must lead our Armed 22 Forces in battle”). 23 In some instances, including military personnel decisions, this deference requires that 24 courts treat such challenges as non-justiciable, even where a constitutional claim is raised. See, 25 e.g., Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953); Mier v. Owens, 57 F.3d 747, 749-50 (9th 26 Cir. 1995); see also Voge v. United States, 844 F.2d 776, 780 (Fed. Cir. 1988) (noting that there 27 are “thousands of … routine personnel decisions regularly made by the services which are 28 variously held nonjusticiable or beyond the competence or the jurisdiction of courts to wrestle 1 with”). In evaluating the justiciability of these challenges to military decision making, the Ninth 2 Circuit has generally required that plaintiffs must first satisfy two threshold elements before a 3 court can determine whether review of their claims is appropriate: (a) they allege a violation of a 4 recognized constitutional right, a federal statute, or a military regulation; and (b) they have 5 exhausted available intraservice remedies. Wenger v. Monroe, 282 F.3d 1068, 1072-1073 (9th 6 Cir. 2002), as amended on denial of reh’g and reh’g en banc (Apr. 17, 2002) (citing Mindes v. 7 Seaman, 453 F.2d 197 (5th Cir. 1971)). 8 If a plaintiff meets both of these threshold requirements, the court weighs four factors to 9 determine whether judicial review of the claims is appropriate: (1) the nature and strength of the 10 plaintiff’s claim; (2) the potential injury to the plaintiff if review is refused; (3) the extent of 11 interference with military functions; and (4) the extent to which military discretion or expertise is 12 involved. Id. at 1073-75. The third and fourth factors are typically considered together. Id. at 13 1075. 14 Using this test, courts have found that challenges to the military’s enlistment criteria are 15 non-justiciable. For example, in Khalsa v. Weinberger, a member of the Sikh religion filed suit 16 against the Army for not processing his enlistment application, because he could not comply 17 with the Army’s appearance regulations. 779 F.2d 1393, 1394-95 (9th Cir. 1985), reaff’d, 787 18 F.2d 1288 (9th Cir. 1985). Affirming the district court’s dismissal, the Ninth Circuit held that the 19 plaintiff’s claims under the APA and the First and Fifth Amendments were not reviewable based 20 on the four Mindes’ factors. See id. at 1395-1400; see also Lindenau v. Alexander, 663 F.2d 68, 21 70 (10th Cir. 1981) (constitutional challenge to Army enlistment regulation prohibiting 22 enlistment of unmarried parent was non-justiciable); West v. Brown, 558 F.2d 757, 759 (5th Cir. 23 1977) (same); Henson v. Alexander, 478 F. Supp. 1055, 1058 (W.D. Ark. 1979) (“the 24 [enlistment] regulation embodies a great deal of military experience in matters of personnel and 25 the military’s decision is entitled to deference since the regulation relates to the efficiency of the 26 Army and National Guard”). 27 Although Plaintiff’s allegations satisfy the two threshold Mindes’ factors, they are 28 insufficient to demonstrate that review is nevertheless appropriate here. Both the constitutional 1 and statutory claims with respect to the October 13 Memos raised by Plaintiff are unpersuasive. 2 Accordingly, the first Mindes factor weighs against review. See Wenger, 282 F.3d at 1075. As to 3 the second factor, Plaintiff claims that the challenged policies of the October 13 Memos would 4 postpone his “immediate naturalization,” “close some doors in [his] future,” “deny [him] the 5 opportunity to apply for federal jobs,” cause “economic harm,” and “meddle[] with [his] Pursuit 6 of Happiness.” Complaint (#1) at 5. However, with respect to the LPR Memo, compared to the 7 harm suffered when a soldier is prematurely entrusted with access to military bases, equipment, 8 and information –"the harm inflicted by the” delay in entering service “is negligible.” See 9 Harkness v. Sec’y of Navy, 858 F.3d 437, 444 (6th Cir. 2017); Harkness v. Spencer, 138 S. Ct. 10 2648 (2018); accord Schlanger, 586 F.2d at 671. Indeed, the Ninth Circuit has deemed the denial 11 of entry into service, let alone the mere delay of such entry, to be a negligible injury under 12 Mindes. See Khalsa, 779 F.2d at 1399-1400 (recognizing precedents “that give little weight to 13 the injury flowing from denial of enlistment” and concluding that “[t]he district court did not err 14 in holding that appellant will suffer little legally cognizable injury from having to choose another 15 career”); see also Christoffersen, 855 F.2d at 1443-44; Sebra v. Neville, 801 F.2d 1135, 1142 16 (9th Cir. 1986). 17 Likewise, the delay of a derivative benefit such as expedited naturalization is not 18 sufficient for purposes of Mindes. Cf. Lindenau, 663 F.2d at 74 (rejecting claim that “loss of 19 benefits that go along with enlistment” weighed in favor of review). The third and fourth Mindes 20 factors likewise weigh against review. Judicial intrusion into the military’s judgment about when 21 a recruit should enter into service and when such service can be certified as “honorable”— 22 particularly when the military has not obtained and adjudicated the information necessary to 23 assess any suitability or security risks—would amount to a significant interference. Cf. Sebra, 24 801 F.2d at 1142 (“Courts are properly wary of intruding upon [] sphere of military decision- 25 making” regarding “deployment of troops and overall strategies of preparedness”). See generally 26 Miller Decl., Def. Mtn to Dismiss, Ex. 1. The relief requested by Plaintiff would also require the 27 Court to insert itself into the background investigation process—“an area in which the only 28 compass is accumulated military experience,” Lindenau, 663 F.2d at 74 -- essentially mandating 1 that the Department ignore the national security concerns that gave rise to the October 13 2 Memos. Wenger, 282 F.3d at 1076 (third and fourth factors weighed against reviewability where 3 review would require the court to determine whether an investigation into events at a social 4 function was properly conducted). Cf. Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988) 5 (“[U]nless Congress specifically has provided otherwise, courts traditionally have been reluctant 6 to intrude upon the authority of the Executive in military and national security affairs.”). 7 Accordingly, the Court finds that Plaintiff’s claims concerning the Certification Memo are non- 8 justiciable, because the Mindes factors counsel against reviewability of Plaintiff’s APA claim the 9 claims surrounding the Certification Memo are dismissed. 10 B. Plaintiff’s Equal Protection Claim 11 “The Due Process Clause of the Fifth Amendment to the United States Constitution, 12 which is applicable to the federal government, incorporates the Fourteenth Amendment’s right to 13 equal protection.” United States v. Lopez-Flores, 63 F.3d 1468, 1472 (9th Cir. 1995). Like the 14 Fourteenth Amendment, Fifth Amendment equal protection “guarantees no substantive rights or 15 liberties”; instead, “it entrenches a right to be free from discrimination based on impermissible 16 statutory classifications and other government action.” Doe v. United States, 419 F.3d 1058, 17 1062 (9th Cir. 2005). 18 Courts evaluating equal protection claims apply one of three levels of scrutiny to a 19 challenged law. Kahawaiolaa v. Norton, 386 F.3d 1271, 1277 (9th Cir. 2004). Generally, “[s]trict 20 scrutiny is applied when the classification is made on ‘suspect’ grounds such as race, ancestry, 21 alienage, or categorizations impinging upon fundamental rights such as privacy, marriage, 22 voting, travel, and freedom of association.” Id. Courts apply “intermediate scrutiny” if the 23 challenged law discriminates on the basis of gender or certain other suspect classifications. Id. 24 And “[w]hen no suspect class is involved and no fundamental right is burdened, [courts] apply a 25 rational basis test to determine the legitimacy of the classifications.” Id. at 1277-78. 26 Further, although “state classifications based on alienage are subject to strict scrutiny 27 review,” “federal statutes regulating alien classifications are subject to the easier-to-satisfy 28 rational-basis review.” Korab v. Fink, 797 F.3d 572, 577-78 (9th Cir. 2014) (citing Hampton v. 1 Mow Sun Wong, 426 U.S. 88, 103 (1976)); accord Soskin v. Reinertson, 353 F.3d 1242, 1254 2 (10th Cir. 2004) (explaining that “the federal government can treat aliens differently from 3 citizens so long as the difference in treatment has a rational basis” (citing Mathews v. Diaz, 426 4 U.S. 67, 78-83 (1976))). As the Ninth Circuit has explained, “Federal interests regarding aliens 5 are significantly different than those of the states; immigration and foreign relations are 6 paramount federal concerns … In the federal context, there may be overriding national interests 7 which justify selective federal legislation that would be unacceptable for an individual State.” 8 Lopez-Flores, 63 F.3d at 1473 (citations omitted); see also Tovar v. U.S. Postal Serv., 3 F.3d 9 1271, 1288 (9th Cir. 1993) (Thompson, J., concurring in part and dissenting) (rejecting plaintiff’s 10 argument that regulation excluding temporary resident aliens from employment with the Postal 11 Service was subject to strict scrutiny; “[t]his is clearly wrong, because only state laws that 12 discriminate among groups of aliens receive such high scrutiny” (citing Mathews, 426 U.S. at 13 84-85)). Plaintiff cannot demonstrate that the October 13 Memos violate his right to equal 14 protection with respect to either challenged policy. 15 The Court finds that rational basis review applies to Plaintiff’s claims.3 Moreover, 16 rational basis review is appropriate because “lawful permanent residents are not a suspect class,” 17 De Medeiros v. Yates, No. 1:05-cv-00397, 2011 WL 386867, at *6 (E.D. Cal. Feb. 3, 2011) 18 (citing Chavez–Perez v. Ashcroft, 386 F.3d 1284, 1292 (9th Cir. 2004)), because Plaintiff has no 19 fundamental right to enlist in the Armed Forces, e.g., Dodson v. U.S. Gov’t, Dep’t of Army, 988 20 F.2d 1199, 1203-04 (Fed. Cir. 1993); Nieszner v. Mark, 684 F.2d 562, 564 (8th Cir. 1982); 21 Lindenau, 663 F.2d at 72; West, 558 F.2d at 760; Williams v. United States, 541 F. Supp. 1187, 22 1192 (E.D.N.C. 1982), and because “there is no right to naturalization,” Nio v. U.S. Dep’t of 23 Homeland Sec., 270 F. Supp. 3d 49, 62 (D.D.C. 2017). “A government policy is valid under the 24 rational basis test so long as it is rationally related to a legitimate government interest.” McLean 25 v. Crabtree, 173 F.3d 1176, 1186 (9th Cir. 1999), as amended on denial of reh’g and reh’g en 26 banc (Apr. 17, 1999). A court must uphold the challenged policy “if there is any reasonably
27 3 The Court’s review under rational basis is even more deferential than the arbitrary and capricious standard 28 under the Administrative Procedure Act. See, e.g., Los Coyotes Band of Cahuilla & Cupeno Indians v. Jewell, 729 F.3d 1025, 1039 (9th Cir. 2013); People of State of Cal. v. FCC, 905 F.2d 1217, 1238 (9th Cir. 1990). 1 conceivable state of facts that could provide a rational basis for the classification.” See Aleman 2 v. Glickman, 217 F.3d 1191, 1201 (9th Cir. 2000); see also id. (“[T]he burden is on the one 3 attacking the legislative arrangement to negative every conceivable basis which might support 4 it.”). An “imperfect fit between means and ends” is acceptable, and “[a] classification does not 5 fail rational-basis review because it ‘is not made with mathematical nicety or because in practice 6 it results in some inequality.’” Id. (citations omitted). “[R]ational-basis review in equal 7 protection analysis ‘is not a license for courts to judge the wisdom, fairness, or logic of [the 8 government’s] choices.’” Id. at 1200 (quoting Heller v. Doe, 509 U.S. 312, 319 (1993)). Plaintiff 9 cannot carry his heavy burden here. 10 With respect to the Certification Memo, requiring foreign national enlistees to complete 11 at least six months of duty, including basic training, before an N-426 certification is signed, 12 allows DoD to better evaluate whether such persons owe allegiance to foreign sovereigns prior to 13 certifying their service as honorable, thereby providing them an expedited path to seek 14 naturalization. See Certification Memo; Info Memo. 15 Two additional considerations buttress the Court’s determination to uphold the October 16 13 Memos under rational basis review. First, doing so is consistent with the deference that courts 17 have traditionally afforded the military in matters concerning the management of its internal 18 affairs. Such deference is especially warranted given the Constitution’s explicit grant of control 19 over the composition of military troops to the political branches, see U.S. Const. art. I, § 8, cls. 20 12-14 & art. II, § 2, cl. 1, as well as the security-related concerns at issue, see, e.g., Egan, 484 21 U.S. at 528-29. Second, the function served by Defendant and enlisted members of the military is 22 one that counsels in favor of sustaining the October 13 Memos under rational basis scrutiny. The 23 Supreme Court has explained in a series of cases upholding state laws restricting aliens’ ability 24 to serve in law enforcement, rational basis review is appropriate because such positions fulfill “a 25 most fundamental obligation of government to its constituency,” Foley v. Connelie, 435 U.S. 26 291, 297 (1978), and a court’s “scrutiny will not be so demanding where [it] deal[s] with matters 27 resting firmly within a State’s constitutional prerogatives [and] constitutional responsibility for 28 the establishment and operation of its own government,” Cabell v. Chavez-Salido, 454 U.S. 432, 1 439 (1982) (citation omitted). The enlisted soldier is tasked with protecting the national security 2 of the United States from foreign threats, e.g., Schlesinger, 419 U.S. at 510, and limitations on 3 who may fulfill that role—or, as here, when they may begin to do so and how much time they 4 should serve before a determination is made that they have served honorably —“are so bound up 5 with the operation of the” government that strict scrutiny is not appropriate, see Cabell, 454 U.S. 6 at 439. 7 D. Substantive Due Process Claim 8 Substantive due process protects those rights that rank as “fundamental”—that is, both 9 “objectively, deeply rooted in this Nation’s history and tradition” and “implicit in the concept of 10 ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” 11 Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). The Supreme Court has also made 12 clear that a plaintiff must provide “a ‘careful description’ of the asserted fundamental liberty 13 interest” when raising such a claim. Chavez v. Martinez, 538 U.S. 760, 775- 76 (2003). “[V]ague 14 generalities . . . will not suffice.” Id. at 776. And while in rare cases a “denial of fundamental 15 fairness” may rise to the level of a substantive due process violation, to survive dismissal in a 16 “challenge to executive action” such as this one, Plaintiff must allege behavior that is “so 17 egregious” and “outrageous” as “to shock the contemporary conscience.” Cty. of Sacramento v. 18 Lewis, 523 U.S. 833, 847 n.8, 850 (1998). “It is not enough to allege conscience shocking action, 19 however. As a threshold matter, to establish a substantive due process claim a plaintiff must 20 show a government deprivation of life, liberty, or property.” Brittain v. Hansen, 451 F.3d 982, 21 991 (9th Cir. 2006). Moreover, the Ninth Circuit has held that “a plaintiff can make out a 22 substantive due process claim if she is unable to pursue an occupation and this inability is caused 23 by government actions that were arbitrary and lacking a rational basis.” Engquist v. Or. Dep’t of 24 Agric., 478 F.3d 985, 998 (9th Cir. 2007), aff’d, 553 U.S. 591 (2008). But the court further 25 limited this already narrow exception in the context of public sector employees, concluding that 26 such employees may bring substantive due process claims only in “extreme cases, such as a 27 ‘government blacklist, which when circulated or otherwise publicized to prospective employers 28 effectively excludes the blacklisted individual from his[.]’” Id. at 998. 1 2 Plaintiff has not met that standard, as the October 13 Memos do not prevent him from 3 serving in the military or eventually reaping the benefits of that service by gaining expedited 4 citizenship. See LPR Memo; Certification Memo. Additionally, Plaintiff has failed to establish 5 that he is subject to a “government blacklist” or similar extreme measure, such that the Court 6 should allow his substantive due process claim to proceed. See Engquist, 478 F.3d at 997-98. 7 Further Plaintiff is unable to adequately state a substantive due process claim, as courts have 8 consistently held that there is no constitutional or statutory right to enlist in the Armed Forces, 9 even for U.S. nationals. The Court has already found that the October 13 Memos withstand 10 rational basis scrutiny. Plaintiff has therefore failed to state a substantive due process claim, and 11 this claim is dismissed. 12 E. Claims under the APA 13 The APA bars judicial review of certain categories of decisions that “courts traditionally 14 have regarded as ‘committed to agency discretion.’” Lincoln v. Vigil, 508 U.S. 182, 192 (1993) 15 (quoting 5 U.S.C. § 701(a)(2)). Such decisions are typically unreviewable because there exists 16 “no meaningful standard against which to judge the agency’s exercise of discretion” in these 17 areas. Heckler v. Chaney, 470 U.S. 821, 830 (1985); e.g., Adams v. FAA, 1 F.3d 955, 956 (9th 18 Cir. 1993); City of Santa Clara. v. Andrus, 572 F.2d 660, 666 (9th Cir. 1978). Moreover, review 19 is particularly inappropriate where “the subject matter is ‘an area of executive action in which 20 the courts have long been hesitant to intrude.’” Helgeson v. Bureau of Indian Affairs, 153 F.3d 21 1000, 1003 (9th Cir. 1998) (quoting Lincoln, 508 U.S. at 191). And even though § 701(a)(2) 22 stakes out “a very narrow exception,” see, e.g., Citizens to Pres. Overton Park, Inc. v. Volpe, 401 23 U.S. 402, 410 (1971), “the Supreme Court has indicated that the § 701(a) hurdle must be cleared 24 ‘before any review at all may be had’ under the APA,” E.J. Friedman Co. v. United States, 6 25 F.3d 1355, 1359 (quoting Heckler, 470 U.S. at 828). 26 1. DoD’s Determinations Regarding Honorable Service Are Not Reviewable. 27 The policy reflected in the Certification Memo is not reviewable under the APA. The 28 statute governing DoD’s honorable service certifications sets forth no meaningful standard to 1 evaluate either whether DoD should certify a soldier as having served honorably or when DoD 2 should so certify. The relevant provision states that “[t]he executive department under which 3 such person [seeking naturalization] served shall determine whether persons have served 4 honorably in an active-duty status, and whether separation from such service was under 5 honorable conditions.” 8 U.S.C. § 1440(a). This language contains no further guidance or 6 instruction as to what constitutes “honorable” service for purposes of certification, thereby 7 conferring discretion on the relevant military branch. Notably, the statute does provide some 8 guidance as to what does not constitute honorable service, see id. (stating that persons who have 9 been separated on account of alienage or who were conscientious objectors who “performed no 10 military, air, or naval duty whatever or refused to wear the uniform” cannot be certified as 11 having served honorably), but DoD retains discretion to determine, as an affirmative matter, 12 what type of service suffices as “honorable.” Indeed, to the extent the statute offers any guidance 13 regarding what type of service should be certified as “honorable,” it suggests that a soldier must 14 have completed active-duty status, id. (instructing the relevant branch of the military to 15 “determine whether persons have served honorably in an active-duty status”), which Plaintiff has 16 not done. Congress’s silence as to what type of conduct should be deemed “honorable”—which, 17 like “enlist,” constitutes a military term devoid of qualification—signals that such a 18 determination is left to the prerogative of DoD. Nor did Congress provide any standard for 19 determining when DoD should certify that a soldier has served honorably. The relevant statutory 20 language is written in the past tense, see id. (instructing DoD to determine whether such persons 21 “have served honorably”), suggesting that certification need not necessarily occur concurrent 22 with a soldier’s enlistment. Further, the statute permits DoD to make an honorable service 23 determination following a soldier’s separation from the military. See id. (instructing DoD to 24 determine whether a person has served honorably, “and whether separation from such service 25 was under honorable conditions”). Having imposed no time restrictions for DoD to abide by in 26 certifying honorable service, § 1440(a) leaves the pace of certifications within the discretion of 27 DoD. See, e.g., Roberts, 792 F. Supp. 2d at 73-74. The legislative history confirms that Congress 28 left the construction of the term “honorable service” to the agency charged with making 1 | honorable service determinations. The Nationality Act of 1940, which authorized naturalization 2 | for persons serving in the Armed Forces, required proof of honorable service “by duly 3 | authenticated copies of records of the executive departments having custody of the records of 4 such service.” Pub. L. No. 76-853, § 324(e), 54 Stat. 1137, 1150. Yet the INA, enacted in 1952, 5 | amended this requirement, mandating that noncitizen soldiers submit a certified statement from 6 | the executive department under which the soldiers served, affirming that their service was honorable (essentially the same rules that apply today). Pub. L. No. 82-414, $$ 328(b)(3), 8 | 329(b)(4), 66 Stat. 163, 249-50. This shift in the law reflects Congress’s intent to give the 9 | military departments an active role in determining honorable service, and it undercuts any notion 10 | that the role is ministerial. If Congress had viewed the honorable service determination as pro 11 | forma, Congress could have simply retained the straightforward proof-of-service requirement 12 | from the 1940 Act.18 Therefore, the Court dismisses Plaintiff's APA claims pursuant to Rule 13 | 12(b)(). 14} \V.Conclusion 15 Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (#11) is 16| GRANTED. 17 IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for 18 | Defendants and against Plaintiff. 19 | Dated this 25th day of September, 2019. : BI. 21 LOIN Kent J. Dawson 22 United States District Judge 23 24 25 26 27 28
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