Nio v. United States Department of Homeland Security

• Court: District Court, District of Columbia
• Decided: May 22, 2019
• Docket: Civil Action No. 2017-0998
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KUSUMA NIO, et al.,

Plaintiffs,

v. Civil Action No. 17-0998 (ESH)

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs are a class of foreign nationals serving in the United States Army’s Selected

Reserve of the Ready Reserve who enlisted through the Military Accessions Vital to the National

Interest (“MAVNI”) program. The MAVNI program provides an expedited path to citizenship

to foreign nationals who are legally present in the United States, possess critical foreign-

language or medical skills, and serve honorably during designated periods of hostilities. The

question before the Court is whether the U.S. Department of Homeland Security (“DHS”) and its

sub-agency U.S. Citizenship and Immigration Services (“USCIS”) acted lawfully when they

instituted a policy on July 7, 2017, declining to naturalize MAVNI applicants until the applicant

has been determined suitable for service by the U.S. Department of Defense (“DOD”) and the

U.S. Army. Because USCIS’s purported reasons for waiting for these military suitability

adjudications do not comport with the evidence before the Court, it concludes that the challenged

portion of USCIS’s policy is arbitrary and capricious in violation of the Administrative

Procedure Act, 5 U.S.C. § 706(2) (“APA”). The Court will therefore vacate that portion of the

policy and grant partial summary judgment to plaintiffs. BACKGROUND

I. FACTUAL BACKGROUND

A. Origins of the MAVNI Program

1. DOD Eligibility and Enlistment Requirements

Much of the factual and procedural background relevant to the parties’ cross-motions for

summary judgment has been set forth in the Court’s other opinions in this case and in a related

case, Kirwa v. DOD, Civ. No. 17-1793.1 However, certain information is necessary to

understand the question before the Court.

Generally, enlistees in the Armed Forces must be United States citizens or legal

permanent residents. See 10 U.S.C. § 504(b)(1). However, through the MAVNI program, which

was first authorized in 2008 and began operating in 2009, non-citizens who are not permanent

residents but are lawfully present in the United States may enlist if they have critical foreign

language skills or specialized medical training. See id. § 504(b)(2); see also Nio PI Op., 270 F.

Supp. 3d at 53. By statute, non-citizens who serve honorably during designated periods of

hostilities are afforded an expedited path to citizenship:

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 a designated period of hostilities], and who, if separated from such service, was separated under honorable conditions, may be naturalized as provided in this section[.]

1 See Nio v. DHS, 270 F. Supp. 3d 49 (D.D.C. 2017) (denying preliminary injunction) (“Nio PI Op.”); Nio v. DHS, 323 F.R.D. 28 (D.D.C. 2017) (granting motion for class certification) (“Nio Class Cert. Op.”); Kirwa v. DOD, 285 F. Supp. 3d 257 (D.D.C. 2018) (denying in part defendants’ motion to dismiss or in the alternative for summary judgment); Kirwa v. DOD, 285 F. Supp. 3d 21 (D.D.C. 2017) (granting preliminary injunction).

2 8 U.S.C. § 1440(a).2 Since September 11, 2001, a designated period of hostilities has existed.

See Exec. Order No. 13269, Expedited Naturalization of Aliens and Noncitizen Nationals

Serving in an Active-Duty Status During the War on Terrorism, 67 Fed. Reg. 45,287 (July 3,

2002). Over the course of the MAVNI program, more than 10,000 recruits have joined the

Armed Forces and have become naturalized as United States citizens. See Nio PI Op., 270 F.

Supp. 3d at 55.

All soldiers, including MAVNIs, must meet general enlistment standards in order to

serve. DOD and the individual services of the U.S. Armed Forces, including the Army, impose

requirements ranging from basic eligibility criteria such as age and physical fitness to more

subjective assessments relating to personal character and conduct. See generally Dept. of

Defense Instruction (“DODI”) 1304.26, Qualification Standards for Enlistment, Appointment,

and Induction (Pls.’ Appx. 8 et seq.) (setting forth eligibility criteria for those serving in the

military).3

Since its inception, the MAVNI program has raised national-security concerns within

DOD, and as a result, DOD has sought to strengthen the security screening requirements for

2 Section 1440 eases the path to citizenship, as compared with the path for a typical naturalization applicant, by allowing service members to be naturalized “regardless of age,” subjecting them to no “period of residence” or physical presence requirement prior to applying for naturalization, and waiving any filing or naturalization fee. 8 U.S.C. § 1440(b)(1), (2), (4). 3 The operative administrative record (“USCIS AR”) was compiled by USCIS and consists of the record before the agency at the time of the July 7 Guidance. (See Index of Administrative Record, Nov. 9, 2018 (ECF No. 216-1).) Plaintiffs also compiled appendices that may be cited for necessary background or factual rebuttal. (See Index of Plaintiffs’ Appendix, Nov. 9, 2018 (ECF No. 216-2) (“Pls.’ Appx.”).) Additionally, relevant to a DOD policy at issue in the related Kirwa litigation, DOD compiled a separate administrative record which contains useful background information. (See Certification of the Index of the Administrative Record, Nov. 17, 2017 (ECF No. 81) (“DOD AR”).) The administrative record and extra-record evidence relevant to this case are discussed in more detail in Section III.B.

3 MAVNI enlistees. See NIO PI Op., 270 F. Supp. 3d at 53-54. (See also Decl. of Stephanie P.

Miller ¶¶ 12-17, July 7, 2017 (ECF No. 19-7) (“7/7/17 Miller Decl.”).) In February 2010, James

Clapper, then Under Secretary of Defense for Intelligence, issued a memo expressing concern

that MAVNI enlistees serving on active duty had not undergone sufficient “counterintelligence-

focused screening” and recommending “immediate steps” to correct the oversight. (DOD

Memorandum for Under Secretary of Defense for Personnel and Readiness: Military Accessions

Vital to the National Interest Personnel (MAVNI), Feb. 17, 2010 (DOD AR 151).) Later that

year, DOD imposed enhanced security screening for all current and future MAVNI soldiers,

including a “Single Scope Background Investigation” (“SSBI” or “Tier 5” investigation,

hereinafter referred to as “Tier 5”), which is a detailed background check conducted by the U.S.

Office of Personnel Management (“OPM”) and is typically used to determine whether an

individual may receive access to classified information. See Nio PI Op., 270 F. Supp. 3d at 54

n.4 (citing Second Decl. of Stephanie P. Miller in Response to July 19, 2017 Order of the Court

at 2-4, July 28, 2017 (ECF No. 25-2) (“7/28/17 Miller Decl.”)). The new DOD policy also

required the Service (e.g., the Army) to institute a “comprehensive counterintelligence-focused

security review [“CI Review”] and monitoring program for MAVNI recruits.” (DOD

Memorandum for Secretaries of the Military Depts.: Two-Year Extension of Military

Accessions Vital to National Interest (MAVNI) Pilot Program at 1-2, Aug. 17, 2010 (Pls.’ Appx.

1-2).)

From August 2010 until May 16, 2012, recruitment of new MAVNIs was delayed while

these strengthened security measures were implemented. (See Decl. of Stephanie Miller ¶ 6,

Nov. 17, 2017 (ECF No. 39-5) (“11/17/17 Miller Decl.”); DOD Memorandum: Reinstatement of

Military Accessions Vital to National Interest Pilot Program at 1, May 16, 2012 (DOD AR 136).)

4 With subsequent reauthorizations, DOD continued to refine security screening requirements for

MAVNIs. In late 2014, DOD specified that all MAVNI applicants would be subject to a

“suitability determination” based on a National Intelligence Agency Check (“NIAC”) name

search,4 Tier 5, and CI Review, including an issue-oriented CI interview and/or polygraph “as

needed to resolve any foreign influence or foreign preference concerns.” (DOD Memorandum:

Two-Year Extension of Military Accessions Vital to the National Interest (MAVNI) Pilot

Program Implementation Policy at 6, Dec. 19, 2014 (USCIS AR 215).) The 2014 DOD memo

provided that “[f]ailure to obtain a favorable NIAC, [Tier 5,] or CI-focused security review will

render the applicant ineligible for enlistment or continued military service” and such a result

would lead to immediate separation from the military. (Id.)

In 2015, DOD promulgated regulations governing “enlistment, appointment, and

induction criteria” for the Armed Forces, including a new provision that “an applicant will be

considered ineligible” to enlist if he or she “[r]eceives an unfavorable final determination by the

DoD Consolidated Adjudication Facility [‘CAF’] on a completed National Agency Check with

Law and Credit (NACLC) or higher-level investigation [i.e., Tier 5], which is adjudicated to the

National Security Standards. . . .” 32 C.F.R. § 66.6(b)(8)(iv); Qualification Standards for

Enlistment, Appointment, and Induction, 80 Fed. Reg. 16,269-01, 16,273 (Mar. 27, 2015); see

also DODI 1304.26, Encl. 3, § 2(h)(6) (Pls.’ Appx. 18) (same requirement). 5 The regulation thus

4 The NIAC includes “at a minimum a name check” of several federal databases including CIA, FBI, and the counterintelligence-focused PORTICO system. (DOD Memorandum: Military Accessions Vital to the National Interest Pilot Program Extension, Sept. 30, 2016 (USCIS AR 238).) 5 Although the regulation suggests that some MAVNIs could be subject to a NACLC (now known as a “Tier 3” investigation) rather than the more demanding Tier 5 investigation, DOD’s position is that all MAVNIs are subject to the higher-level Tier 5 investigation. See Kirwa, 285 F. Supp. 3d at 30.

5 imposed an additional step—a “final determination” as to the soldier’s suitability for military

service—in addition to the DOD investigations required under the 2014 DOD memo. 32 C.F.R.

§ 66.6(b)(8)(iv). (See also Tr. of Proceedings at 18:7-20:17, Mar. 20, 2019 (ECF No. 245)

(“3/20/19 Tr.”) (Christopher Arendt of DOD describing the process formalized by the

regulation).) On September 30, 2016, DOD again addressed investigation and vetting

requirements for MAVNIs, as discussed in more detail infra at Section I.B.

2. USCIS Processing of Naturalization Applications

Separate from the DOD requirements, MAVNIs who wish to naturalize must apply to

USCIS for citizenship, and USCIS must “conduct examinations” of all applicants. 8 U.S.C.

§ 1446(b); see also 8 C.F.R. § 332.1(a) (designating USCIS officers “to conduct the examination

for naturalization required under” the Immigration and Nationality Act or “INA”). Regulations

specify that USCIS must review FBI criminal background checks, see 8 C.F.R. § 335.2(b), and

for naturalization applicants with military service, USCIS also requests from DOD name check

queries of DOD’s Defense Clearance Investigative Index (“DCII”) to see if the applicant has a

criminal record on his or her military record. See 12 USCIS Policy Manual, pt. I, ch. 6, § A,

https://www.uscis.gov/policy-manual (“USCIS Policy Manual”). Following these checks, an

applicant is scheduled for a naturalization interview by a USCIS officer, see 8 C.F.R. § 335.2,

and USCIS must adjudicate the application within 120 days of the interview. 8 U.S.C.

§ 1447(b).

An applicant will not be approved for naturalization unless USCIS determines that she or

he is “a person of good moral character, attached to the principles of the Constitution of the

United States, and well disposed to the good order and happiness of the United States.” 8 U.S.C.

§ 1427(a). The applicant “bears the burden of demonstrating that, during the statutorily

6 prescribed period, he or she has been and continues to be a person of good moral character.” 8

C.F.R. § 316.10(a)(1). For MAVNI applicants, the relevant statutory period is one year. 8

C.F.R. § 329.2(d).6 USCIS makes this good moral character determination “on a case-by-case

basis.” 8 C.F.R. § 316.10(a)(2). Certain criminal and immoral acts are explicitly disqualifying,

but otherwise USCIS has discretion to evaluate the applicant’s character in the context of “the

standards of the average citizen in the community of residence.” Id.

In 2003, § 1440 was amended to specify that a soldier’s service in the Selected Reserve

of the Ready Reserve (“SRRR” or the “Reserves”) is qualifying; the soldier need not have served

in active duty. See National Defense Authorization Act for Fiscal Year 2004, § 1702, P.L. No.

108-136, 117 Stat. 1392 (Nov. 24, 2003). In fact, at all times relevant to this litigation, the

USCIS Policy Manual provided that “[o]ne day of qualifying service is sufficient in establishing

eligibility” for the statutory honorable-service requirement. Kirwa, 285 F. Supp. 3d at 28

(quoting 12 USCIS Policy Manual, pt. I, ch. 3, § A). Further, under § 1440, to naturalize a

MAVNI must have “served honorably” during a designated period of hostilities; if the soldier is

no longer serving, she or he must have been “separated under honorable conditions.” 8 U.S.C.

§ 1440(a). When a MAVNI soldier submits to USCIS his or her naturalization application,

known as Form N-400, he or she must also submit a certification of honorable service from

DOD, known as Form N-426. Form N-426 “is the means by which DoD certifies whether an

applicant for citizenship is serving honorably, and if no longer serving, whether they were

6 Earlier conduct can also be used to demonstrate an applicant’s lack of good moral character, if the applicant cannot show that he or she has changed. See 8 C.F.R. § 316.10(a)(2) (“[USCIS] may take into consideration . . . conduct and acts at any time prior to that period, if the conduct of the applicant during the statutory period does not reflect that there has been reform of character from an earlier period if the earlier conduct and acts appear relevant to a determination of the applicant’s present moral character.”).

7 separated under honorable conditions.” (7/7/17 Miller Decl. ¶ 6.) See also 12 USCIS Policy

Manual, pt. I, ch. 5, § A (“The Request for Certification of Military or Naval Service confirms

whether the applicant served honorably in an active duty status or in the Selected Reserve of the

Ready Reserve.”). USCIS’s long-standing interpretation of the honorable-service requirement

under § 1440 is that any applicant who is no longer serving must have been separated under

“honorable” or “general under honorable” conditions, and that a neutral “uncharacterized”

separation is not sufficient. See 12 USCIS Policy Manual, pt. I, ch. 3, § B. (See also 3/20/19 Tr.

at 14:1-23.)

Prior to July 2017, information USCIS received from DOD about an applicant was

routinely limited to the DCII DOD database check. (See 3/20/19 Tr. at 5:4-8 (to the Court’s

question, what information did USCIS receive from DOD other than the DCII index check,

DOD’s counsel responded, “none. There was no formal routine process”).) In the past, MAVNI

naturalization applicants generally were processed quickly. Indeed, the MAVNI enlistment

contract from 2016 indicated that an enlistee could expect to get to Basic Training within 180

days of enlistment. (See Certificate and Acknowledgement, U.S. Army Reserve, Service

Requirements and Methods of Fulfillment at 3, § IV(8)(c), Armed Forces of the United States

(ECF No. 23-2) (enlistment contract of one of the named plaintiffs).) Under an initiative to

expedite processing of applications of enlistees at Basic Training, USCIS also adjudicated the

applications of and naturalized MAVNIs by the end of the 10-week Basic Training course. See

Nio PI Op., 270 F. Supp. 3d at 55. Overall, as of May 2017, the average USCIS processing time

for military naturalization applications (including those filed by MAVNIs) was approximately

four months from start to finish. See id. at 56, see also Kirwa, 285 F. Supp. 3d at 31 (describing

the MAVNI path to citizenship before September 2016). (See also Decl. of Daniel Renaud ¶ 5,

8 July 28, 2017 (USCIS AR 258-59) (“7/28/17 Renaud Decl.”) (summarizing military application

processing times).)

B. DOD’s Sept. 30, 2016 Memorandum

When it reauthorized the program on September 30, 2016, DOD again imposed enhanced

“eligibility requirements” for MAVNIs, including extensive background investigations. (See

DOD Memorandum: Military Accessions Vital to the National Interest Pilot Program Extension,

Sept. 30, 2016 (USCIS AR 233-41) (“Sept. 30 Memo”).) 7 The Sept. 30 Memo made shipment to

Basic Training contingent on (1) completion of these enhanced background investigations and

(2) a determination by DOD and the Army that the soldier is suitable for military service.

Pursuant to this new policy, a MAVNI’s security screening must include three specific

investigative steps: (1) the NIAC database check, (2) the Tier 5 background investigation by

OPM, and (3) the CI Review, including interviews and polygraphs as necessary. (See id. at

USCIS AR 238.) Each of these investigations (collectively, the “DOD investigatory phase”)

generates a report summarizing its findings. (See, e.g., Pls.’ Mem. in Supp. of Pls.’ Mot. for

Partial Summ. J. & in Opp’n to Defs.’ Cross Mot. for Summ. J. at 18, Dec. 21, 2018 (ECF No.

227) (“Pls.’ Opp’n & Reply”) (reproducing an excerpt of a DOD document referring to the CI

Review report).)

The Sept. 30 Memo provides that, after the DOD investigatory phase is complete, and

before shipping to Basic Training, the soldier must still await a determination by his or her

service (e.g., the Army) that he or she is suitable for military service. This “military suitability

determination” has two steps, which together are referred to by plaintiffs as the “adjudicatory

7 The MAVNI program stopped accepting new recruits in June 2016. (See Tr. of TRO/Prelim. Injunction Hearing at 43:7-9, Oct. 27, 2017 (ECF No. 75).)

9 phase” of DOD’s vetting process. First, based on the DOD investigation results, DOD’s Central

Adjudication Facility (“DOD CAF”) makes a recommendation (in later documents referred to as

a “military service suitability recommendation” or “MSSR”) to the Army. (See Sept. 30 Memo

at USCIS AR 238.) Neither DOD CAF nor the Army conducts any additional investigation of

the applicant, but rather they rely on the information gathered during the DOD investigatory

phase and consider whether any derogatory findings can be “mitigated” by information from the

investigations or provided by the applicant. To make this MSSR recommendation, DOD CAF

assesses the applicant using as its criteria 13 National Security Adjudicative Guidelines. (See id.;

see also DOD Memorandum: Implementation of Adjudicative Guidelines for Determining

Eligibility for Access to Classified Information (Dec. 29, 2005), Aug. 30, 2016 (Pls.’ Appx. 93 et

seq.) (the “Adjudicative Guidelines”).) The Adjudicative Guidelines provide detailed criteria for

evaluating an individual’s background, including how certain information may be mitigable, and

are generally used to determine whether an individual may access classified information or hold

a national security position. The Adjudicative Guidelines include criteria such as allegiance to

the United States, Foreign Influence, Foreign Preference, Personal Conduct, and Criminal

Conduct, as well as guidance for determining whether certain conduct or information about an

applicant should be disqualifying or can be mitigated. (See generally Adjudicative Guidelines at

Pls.’ Appx. 98-121 (describing the criteria for each of the Adjudicative Guidelines).)

Second, once DOD CAF has rendered the MSSR, it is provided to the Army for its

review. The Army reviews the recommendation and, if it is not favorable, it also reviews the

underlying investigatory results to determine if the “derogatory information” on which the

unfavorable MSSR was based can be mitigated. (See Sept. 30 Memo at USCIS AR 238 (“If

derogatory information was revealed, the DoD CAF will provide information to the accessing

10 service via the Case Adjudication Tracking System.”).) The service then renders a final

“military suitability determination” (commonly referred to as a “military service suitability

determination” or “MSSD”) based on DOD CAF’s recommendation and on the service’s own

needs: “The accessing service will use this information to then render the final military

suitability determination in accordance with DoDI 1304.26 and any service specific policies.”

(Id.; see also id. at USCIS AR 234, 239, 241 (additional references to the “suitability

determination” for MAVNIs).) It is the MSSD that determines whether a MAVNI may attend

Basic Training and then proceed to active duty. If a MAVNI is found suitable for service, he or

she ships to Basic Training; if found unsuitable he or she is promptly separated, or discharged,

from the military. (See id. at USCIS AR 241 (flow chart depicting separation immediately after

“NON FAVORABLE Military Suitability Determination”).)

As a result of the Sept. 30 Memo, MAVNIs have had to wait significantly longer between

their dates of enlistment and dates for shipment to Basic Training. In response to this situation,

in October and November 2016 the Army began placing MAVNIs in the Army’s Delayed

Training Program (“DTP”), where they would remain enlisted and continue to drill as reservists

while awaiting shipment to Basic Training. (See Decl. of Daniel Renaud ¶ 21, July 7, 2017

(USCIS AR 249) (“7/7/17 Renaud Decl.”); 7/28/17 Miller Decl. at 6.) Soldiers drilling in DTP

are categorized by the Army as “entry level” because they are reservists who have not yet

attended Basic Training. See Enlisted Administrative Separations, Army National Guard and

Reserve, Army Reg. 135–178, Glossary § II. If a soldier is discharged from entry-level status,

the discharge is not characterized as honorable or other than honorable, but rather by the neutral

“uncharacterized” classification. See id. § 2–11(a).

Generally, a soldier could remain in DTP for up to two years, after which he or she must

11 attend Basic Training or face discharge. (See 7/28/17 Miller Decl. at 10 (quoting National

Defense Authorization Act for Fiscal Year 1993, § 1115(c), P.L. No. 102-484 (Oct. 23, 1992)).)

Because it was taking so long to become eligible for Basic Training under the new requirements,

some MAVNIs exceeded this two-year limit on DTP enlistment and faced discharge. (See id.)

To alleviate this problem, DOD “determined that in this instance the [2-year] limitation may be

waived if movement to training remains impracticable,” and extended the 2-year DTP timeout

deadline by an additional year to permit MAVNIs to remain enlisted while they waited for the

results of the DOD investigatory phase and their MSSDs. (See DOD Memorandum: Waiver of

Minimum Training Requirements for Certain Military Accessions Vital to the National Interest

(MAVNI), Jul. 27, 2017 (ECF No. 26 at 4) (enlarging the DTP timeout deadline to 36 months).)

Another byproduct of the delay was that by early 2017, approximately 500 MAVNIs

drilling in DTP sought and received signed N-426s and submitted naturalization applications

before having started Basic Training. See Kirwa, 285 F. Supp. 3d at 31 (citing 10/18/2017 Tr. at

21-22). These individuals had not completed their DOD background investigations. (See 7/7/17

Renaud Decl. ¶ 21 (USCIS AR 249).) According to Daniel Renaud, USCIS Associate Director,

Field Operations Directorate, “[p]rior to the September 30, 2016 memo, USCIS had received

few, if any, applications from MAVNI recruits who were drilling in the DTP. Instead, the

recruits usually attended Basic Training soon after enlisting in the Army and waited until they

attended Basic Training to apply for naturalization.” (Id.)

Against this backdrop, on May 19, 2017, DOD issued an “Action Memo” addressed to

the Secretary of Defense, identifying four primary “MAVNI Risk Groups,” along with mitigation

plans for addressing the risks identified with each group. (DOD Action Memo: Military

Accessions Vital to the National Interest (MAVNI) Pilot Program at 2, May19, 2017 (Pls.’ Appx.

12 7) (“DOD May 2017 Action Memo”).) Of relevance to the plaintiffs in this case, DOD identified

as “Group 3” the approximately 2,400 MAVNIs drilling in DTP whose Tier 5 investigations had

not been completed, including the approximately 500 MAVNIs who had received their Form N-

426s and applied for naturalization. (Id.) The Action Memo recommended that all DTP

MAVNIs be discharged using Secretarial plenary authority, “[e]xcept for individual cases

deemed vital to the national interest.” (Id.)8

C. USCIS’s July 7, 2017 Guidance

As far back as 2016 and into 2017, DOD was communicating to USCIS its growing

concerns about the MAVNI program, through both discussions and written materials provided on

an ad-hoc basis. (See Decl. of Daniel M. Renaud ¶¶ 3-4, Mar. 5, 2018 (USCIS AR 2-3) (“3/5/18

Renaud Decl.”).) According to Stephanie Miller, Director of DOD’s Accession Policy

Directorate, DOD senior leaders informed USCIS officials in April 2017 that DOD “was

concerned about the naturalization of individuals whose [Tier 5] background investigation and

DoD counterintelligence security review has not yet been completed.” (Miller 7/7/17 Decl.

¶ 18.) Based on these concerns, according to Ms. Miller, DOD and USCIS “jointly determined

that it was in the best interest of the United States to ensure that the naturalization decision of

USCIS was informed by the outcome of [these completed reviews]” and “mutually agreed that

USCIS would slow down the Form N-400 adjudications of the MAVNI pilot program

applicants.” (Id.) On April 13, 2017, USCIS “issued a written hold” on these soldiers’

naturalization applications. (7/7/2017 Renaud Decl. ¶ 25 (USCIS AR 250-51).)

In early May 2017, USCIS learned from DOD about two cases where a MAVNI soldier

8 DOD would later inform the Court that DOD’s May 19, 2017 Action Memo was an “internal, pre-decisional, and deliberative document,” and its recommendations as to discharging Group 3 MAVNIs were not adopted. (7/28/17 Miller Decl. at 8-9.)

13 had “naturalized before his or her DoD background checks revealed derogatory information that

USCIS would have considered, had it known about the information, in determining whether the

individual was eligible to naturalize.” (3/5/18 Renaud Decl. ¶ 3 (USCIS AR 2) (referencing ad-

hoc conversations and emails between DOD and USCIS personnel included at USCIS AR 11-

13).) USCIS learned from DOD of these two cases during a field visit in May 2017 to Fort

Jackson, a military base used by the Army for Basic Training. Follow-up emails between USCIS

and DOD personnel who participated in this visit indicate that approximately 21 MAVNI

soldiers were already in Basic Training although their Tier 5 investigations were still pending.

(See USCIS AR 11-13.) The emails also indicate that two MAVNIS who had already

naturalized were “chaptered out unfavorably”—i.e., discharged after being determined ineligible

to enlist, one for “bad conduct” and one for “failure to adapt.” (USCIS AR 12-13.) On the same

day as the DOD May 2017 Action Memo, USCIS sent another email to the field to clarify that its

April 13 written hold on MAVNI N-400 applications affected only DTP MAVNIs who had not

yet shipped to Basic Training. (See 7/7/17 Renaud Decl. ¶ 25 (USCIS AR 250-51); see also

USCIS Email, MAVNI Hold, May 19, 2017 (ECF No. 23-1 at 10-11).)

Meanwhile, DOD’s Office of the Inspector General (“OIG”) was investigating the

MAVNI program, including national security concerns related to soldiers’ potential foreign ties

or loyalty to the United States. In June 2017, OIG issued a classified report (the “OIG classified

report”) detailing its findings and highlighting these national security concerns. (See 3/5/18

Renaud Decl. ¶ 4 (USCIS AR 2-3); Memo, DHS USCIS MAVNI Program, July 3, 2017 (USCIS

AR 7) (“July 3 DHS Memo”).) Then, on July 3, 2017, DHS issued a one-page memo for the

Secretary of Homeland Security, titled “DHS USCIS MAVNI Program,” referring to the OIG

classified report and other concerns about the processing of MAVNI naturalization applications.

14 (See July 3 DHS Memo (USCIS AR 7).) The July 3 DHS Memo stressed “security concerns

regarding MAVNI recruits, informed by a classified DOD Inspector General report,” and stated

that “USCIS views additional background checks at the naturalization stage as necessary and

appropriate in accordance with its general authority to conduct background checks on

naturalization applicants.” (Id.)

On July 7, 2017, Mr. Renaud sent an email containing the USCIS “Guidance” that is the

gravamen of this litigation. The email is just over one page and instructs that a MAVNI

naturalization applicant may not proceed to interview until “all enhanced DoD security checks

are completed.” (See Email from Daniel M. Renaud, Updated MAVNI N-400 Guidance, July 7,

2017 (USCIS AR 4-5) (“July 7 Guidance”).)9 The July 7 Guidance makes clear that the

enhanced security checks referred to are those required under the Sept. 30 Memo:

USCIS must ensure that each MAVNI naturalization applicant demonstrates good moral character and attachment to the U.S. Constitution as required by the INA and 8 CFR. In order to do so, each applicant must receive proper DoD vetting and clearance in alignment with the September 30, 2016 MAVNI extension authorization and restrictions. Consequently, USCIS will not proceed to interview, approve, or oath any currently pending or future MAVNI naturalization applicants applying for naturalization under INA § 329 [codified at 8 U.S.C. § 1440], regardless of their active duty or reserve service, until all enhanced DoD security checks are completed.

(July 7 Guidance at 2 (USCIS AR 5).)

The July 7 Guidance constituted a major change in USCIS policy. For the prior

seventeen years, USCIS had basically relied on an FBI background check and a DCII index

check to vet MAVNI applicants, but had not required extensive and lengthy DOD background

investigations or an MSSD adjudication prior to considering a MAVNI’s naturalization

9 Mr. Renaud subsequently described the July 7 Guidance as “final agency guidance.” Nio PI Op., 270 F. Supp. 3d at 56 (quoting 7/17/17 Renaud Decl. ¶¶ 3-4). Defendants acknowledge that it constitutes a final agency action. (See Defs.’ Opp’n & Cross Mot. at 19 n.11.)

15 application. See Nio PI Op., 270 F. Supp. 3d at 65.

The July 7 Guidance briefly explains its motivations. First, it summarizes DOD and

USCIS concerns over the prior year and a half, especially “circumstances and instances” of

MAVNI enlistees becoming naturalized “before a DoD background check revealed derogatory

information suggesting that [the applicant] lacked good moral character or attachment to the U.S.

Constitution.” (July 7 Guidance (USCIS AR 5) (noting that investigations had subsequently

identified such conduct as “immigration fraud, criminal acts, aggravated felonies, active

membership and participation in the Communist Party, and national security concerns”); see also

7/7/17 Renaud Decl. ¶ 17 (USCIS AR 248) (noting the same concerns); 3/5/18 Renaud Decl. ¶¶

3-4 (USCIS AR 2) (noting the same concerns and citing the OIG classified report and “other

classified documents”).) The July 7 Guidance explained: “USCIS has determined that the

completion of DOD background checks is relevant to a MAVNI recruit’s eligibility for

naturalization. . . . USCIS must ensure that each MAVNI naturalization applicant demonstrates

good moral character and attachment to the U.S. Constitution as required by the INA and 8

CFR.” (July 7 Guidance at 1-2 (USCIS AR 4-5).)

II. MAVNI-RELATED LITIGATION

A. Nio v. DHS

This action was filed on May 24, 2017, before the July 7 Guidance was issued. (See

Compl., May 24, 2017 (ECF No. 1).) Plaintiffs initially alleged that USCIS and DOD were

unlawfully delaying the processing of MAVNI naturalization applications due to improper

interference in the process by DOD. Plaintiffs sought a preliminary injunction, asking the Court

to enjoin DOD from interfering and USCIS from delaying the processing of MAVNI

naturalization applications. (Pls.’ Mot. for Prelim. Injunction at 1, June 28, 2017 (ECF No. 17).)

16 Shortly thereafter, USCIS issued the July 7 Guidance and plaintiffs sought to challenge it

as part of this litigation. The Court ordered plaintiffs to amend their complaint and revise their

request for preliminary relief. (See Order, July 19, 2017 (ECF No. 24).) Plaintiffs then amended

their complaint to challenge the July 7 Guidance as unlawful. (1st Am. Compl., Aug. 4, 2017

(ECF No. 27).) They complained that DOD had unlawfully interfered in the naturalization

process and USCIS had allowed DOD to do so by agreeing to wait until the “enhanced” checks

were “complete” before processing naturalization applications. Plaintiffs also moved for class

certification. (Pls.’ Mot. to Certify Class, Aug. 11, 2017 (ECF No. 30).) The Court certified the

class and appointed class counsel. The class is defined as

all persons who have (i) enlisted in the Selected Reserve through the MAVNI program prior to October 13, 2017; (ii) served honorably with a Selected Reserve unit through participation in at least one qualifying drill period or served in an active-duty status; (iii) submitted N-400 Applications for Naturalization; (iv) been issued Form N-426s certifying honorable service as a member of the Selected Reserve or in active-duty status; and (v) have had the processing or final adjudication of their naturalization applications (including naturalization itself) withheld or delayed because of (a) a final USCIS processing hold for MAVNIs, (b) a DOD N-426 policy review, (c) a DOD N-426 recall/decertification policy, (d) enhanced DOD security screenings, (e) a DOD CAF adjudication, (f) a national security determination, and/or (g) military service suitability vetting determination[.]

(Order at 1-2, Oct. 27, 2017 (ECF No. 72).)

The Court denied plaintiffs’ motion for a preliminary injunction, finding that although

plaintiffs had shown irreparable harm, they had not shown that they were likely to succeed on the

merits of their claims. See Nio PI Op., 270 F. Supp. 3d at 62-65. Having reviewed in camera

the OIG classified report and other classified documents from the Defense Intelligence Agency,

the Court found that plaintiffs were unlikely to succeed on their claim that the July 7 Guidance

was arbitrary and capricious in light of the national security concerns that had informed it. At

17 the time, plaintiffs did not clearly distinguish between the two separate components of DOD’s

review—the DOD investigatory phase from which DOD might learn “derogatory information”

about an applicant, and the “military suitability determinations” (DOD’s MSSR and the Army’s

MSSD) based on that information. The Court found that, while the adoption of the July 7

Guidance constituted a “dramatic change in DHS/USCIS policy,” the new policy was a

“respon[se] to present national security concerns” and the need to gather information relevant to

those concerns was likely within the discretion of USCIS. Nio PI Op., 270 F. Supp. 3d at 65.

Plaintiffs subsequently filed a second amended complaint, which is now the operative complaint.

(2d Am. Compl., Oct. 20, 2017 (ECF No. 61).)

The plaintiff class sues DHS, USCIS, DOD, and the Secretary of Homeland Security,

Director of USCIS, and Secretary of Defense in their official capacities. (See id. at 1.) In Count

I of the complaint plaintiffs seek declaratory relief that defendants’ actions are unlawful. (See id.

at 47-50.) In Count II plaintiffs seek injunctive relief including, inter alia, a permanent

injunction setting aside the July 7 Guidance, requiring priority processing of class members’

naturalization applications, and preventing DOD from interfering in the naturalization process.

(Id. at 50-53.) Count III alleges numerous APA violations including, inter alia, violation of 5

U.S.C. § 706(1) because USCIS has unreasonably delayed the processing of naturalization

applications and violations of § 706(2) because the July 7 Guidance is arbitrary and capricious

and contrary to law. (Id. at 54-62.) Count IV seeks mandamus relief to compel USCIS to

process plaintiffs’ naturalization applications. (Id. at 62-63.) Count V alleges violation of the

U.S. Constitution’s “Uniform Rule of Naturalization” clause. (Id. at 63-64.)

18 B. Kirwa v. DOD

In the related case Kirwa v. DOD, the plaintiff class consists of MAVNI reservists who

have not received a certified Form N-426 from the Army and therefore cannot yet apply for

naturalization. They challenged a DOD policy issued on October 13, 2017, which would delay

certification of a Form N-426 until a MAVNI’s “applicable screening and suitability

requirements” had been completed. Kirwa, 285 F. Supp. 3d 257, 264 (D.D.C. 2018) (quoting

DOD Guidance of Oct. 13, 2017). Previously, DOD had certified reservists’ honorable service

after one qualifying day of drilling, including for those whose background investigations were

not yet complete and/or who had not yet shipped to Basic Training. See id. at 263. The Court

certified the class and preliminarily enjoined the policy. See Kirwa, 285 F. Supp. 3d 21 (D.D.C.

2017). Shortly thereafter, the Court denied DOD’s motion to dismiss. See Kirwa, 285 F. Supp.

3d 257 (D.D.C. 2018). As a result of the Court’s order requiring that DOD certify honorable

service for MAVNIs once they had completed at least one day of drilling with the Reserves,

more than 1,600 MAVNI N-426 requests have been granted as of May 22, 2019. (See Defs.’

Status Report at 1, May 22, 2019 (Kirwa, Civ. No. 17-1793, ECF No. 155).) Once a Kirwa class

member receives his or her N-426 and applies to USCIS for naturalization, he or she becomes a

member of the Nio class.

C. Calixto v. U.S. Army

In another case pending before the Court, Calixto v. U.S. Dept. of Army, Civ. No. 18-

1551, a putative class of MAVNI soldiers, which partially overlaps with those in the Nio class,

allege, inter alia, that in discharging them the Army violated Army and DOD regulations, as well

as the soldiers’ procedural due process rights. (See 2d Am. Compl., Jan. 2, 2019 (Calixto, Civ.

No. 18-1551, ECF No. 61).) Plaintiffs’ motion for class certification in Calixto is pending.

19 (Pls.’ Mot. to Certify Class, Jan. 2, 2019 (Calixto, Civ. No. 18-1551, ECF No. 62).) The

proposed class is divided into two sub-classes: those challenging their discharges based on an

unsuitable MSSD, and those challenging discharges based on other reasons.

Since the filing of the Calixto litigation, DOD has instituted a process for the review of

unsuitable MSSDs and discharges based on unsuitable MSSDs. Under the new process, soldiers

who receive a “non-recommend” MSSR are to receive written notice thereof and then have 30

days to submit “matters which may refute, correct, explain, extenuate, mitigate, or update the

unfavorable information.” (DOD Memorandum: Resume Separation Actions Pertaining to

Members of the Delayed Entry Program (DEP) and Delayed Training Program (DTP) Recruited

Through the Military Accessions Vital to National Interest (MAVNI) Pilot Program at 2, Oct. 26,

2018 (Calixto, Civ. No. 18-cv-1551, ECF No. 50-1) (“Oct. 26 DOD Memo”).) The Service must

take this mitigating information into account in rendering the final MSSD within 90 days of the

original MSSR. (See id.) This new process will lengthen the time between DOD’s

recommendation (the MSSR) and the Army’s final determination (the MSSD), and in turn, it will

further delay USCIS’s consideration of a MAVNI’s naturalization application. This is

particularly true since to date only a handful of notices have been sent to the over 500 Nio class

members who have received a non-recommend MSSR. (See Ex. B, Suppl. to Defs.’ May 6, 2019

Report, May 9, 2019 (ECF No. 248-2).)10

10 Other courts have recently enjoined other aspects of the government’s treatment of MAVNIs and other foreign-born soldiers. After a bench trial in late 2018, a district court in Washington State held that naturalized citizens who had enlisted through the MAVNI program had been unconstitutionally discriminated against because they had been subjected to NIAC checks and continuous monitoring for national security concerns on the basis of national origin, even after becoming citizens. See Tiwari v. Mattis, 2019 WL 397160 (W.D. Wash. Jan. 31, 2019). A court in California granted class certification and preliminarily enjoined another DOD policy, which required that lawful permanent residents serving in the Armed Forces complete their background

20 III. PROCEDURAL POSTURE

On March 14, 2018, plaintiffs moved to file a third amended complaint based on what

they characterized as ongoing violations by defendants. (See Mem. of Points and Auth. in Supp.

of Pls.’ Mot. for Leave to File 3d Am. Compl., Mar. 14, 2018 (ECF No. 115).) Plaintiffs sought,

inter alia, to challenge defendants’ interpretation of the July 7 Guidance as requiring that USCIS

wait not only for the completion of the DOD investigatory phase, but also for the final MSSD

(hereinafter referred to as the “MSSD Requirement”).11 (Id. at 5.) The Court denied leave to

amend the complaint but informed the parties that it would “consider plaintiffs’ allegations

regarding USCIS’s waiting for the results of the MSSD to be part of the second amended

complaint,” since their complaint challenged the entirety of the July 7 Guidance. (Order at 1,

Apr. 12, 2018 (ECF No. 135).) The Court directed defendants to supplement the administrative

record to address “the legality of USCIS waiting on MSSD/NSD determinations from DOD

before naturalizing enlistees.” (Id.)

A. Nio Status Reports

As required by the Court, defendants periodically provide status reports on the progress

of Nio class members’ naturalization applications. As of defendants’ most recent report dated

May 6, 2019, there were approximately 2,000 current and former class members, of whom more

than 1,200 have naturalized and are no longer members of the class. (See Defs.’ Updated Report,

May 6, 2019 (ECF No. 247) (“Defs.’ May 6 Report”).) Of the approximately 750 remaining

checks and suitability determinations before shipping to Basic Training. See Kuang v. DOD, 340 F. Supp. 3d 873 (N.D. Cal. 2018). 11 This Opinion uses the term “MSSD Requirement” to refer to USCIS’s waiting for the completion of the MSSD. This litigation does not challenge the fact that DOD subjects enlistees to either the various DOD investigatory steps or to the Army’s requirement of an MSSD in order to determine eligibility to serve.

21 class members, some 160 have received a suitable MSSD. (See id.) Almost all of the 550

remaining class members are still waiting for their final MSSDs. Of these, more than 500 have

already received a “non-recommend” MSSR from DOD CAF. (See id.) Approximately 40 still

have pending MSSRs, approximately half of whom were previously discharged due to an

unsuitable MSSD but have now been offered reinstatement pursuant to the Oct. 26 DOD Memo.

(See id.) With few, if any, exceptions, the vast majority of these remaining class members have

not gone to Basic Training and are still in “entry level” status while they drill with their reserve

units and wait for their MSSDs. (See 3/20/19 Tr. at 109:12-16; id. at 51:10-19.)

B. The Administrative Record

USCIS compiled the administrative record for the July 7 Guidance in early March 2018

and included a declaration by Mr. Renaud describing the contents of the record and summarizing

USCIS’s reasons for the July 7 Guidance. (See Index of Administrative Record, Mar. 1, 2018

(ECF No. 111); 3/5/18 Renaud Decl. (USCIS AR 1-3).) The record also contains emails and

extensive attachments documenting the specific cases of concern that DOD had raised to USCIS

during the first half of 2017 (USCIS AR 8-209); the December 19, 2014 DOD memo

reauthorizing the MAVNI program (USCIS AR 210-32); the July 3 DHS Memo (USCIS AR 7);

and the July 7 Guidance (USCIS AR 4-6). The record was subsequently amended at plaintiffs’

request and by order of the Court to include the Sept. 30 Memo (USCIS AR 233-41) and Mr.

Renaud’s declarations of July 7, 2017 and July 28, 2017, which were written at the time of or

shortly after the July 7 Guidance. (See USCIS AR 242-86.)

Earlier in this litigation, the Court reviewed the June 2017 OIG classified report and other

classified documents. See Nio PI Op., 270 F. Supp. 3d at 64. Defendants did not submit any

classified materials as part of the administrative record, for Mr. Renaud did not consult these

22 classified documents when issuing the July 7 Guidance. Rather, the record indicates that Mr.

Renaud and others at USCIS relied on what DOD told them regarding their concerns about the

MAVNI population. (See 3/5/18 Renaud Decl. ¶ 4 (USCIS AR 2-3); July 3 DHS Memo (USCIS

AR 7) (referencing “security concerns regarding MAVNI recruits, informed by a classified DOD

Inspector General report”).)

This litigation, as well as the Kirwa case, has generated an extensive record beyond the

Nio administrative record. As explained above, the Court has ordered ongoing reporting on the

status of the Nio class and their class representatives. Additional declarations and other

documents have been filed either at the request of the Court or by the parties to support their

pleadings at various stages of the litigation. Two declarations by Ms. Miller of DOD are

particularly useful in providing background information critical to understanding the programs at

issue, although they are not part of the administrative record. (See 7/7/17 Miller Decl.; 7/28/17

Miller Decl.) The Court has held that these declarations may be cited in rebuttal or for necessary

background information, but not as justification for the July 7 Guidance. (See Order at 1, Nov.

15, 2018 (ECF No. 217).) Documents in Plaintiffs’ Appendix and the DOD Administrative

Record also may be cited for these limited purposes. (See id.)

Of course, the Court is not limited to the administrative record in conducting its legal

analysis. While the Court must assess the rationality of USCIS’s MSSD Requirement based on

the administrative record, it must take into account relevant legal authority, including statutes,

regulations, and agency authority such as DODIs, Army Regulations, and the USCIS Policy

Manual.

23 C. Pleadings Before the Court

Before the Court are the parties’ cross-motions for summary judgment. Plaintiffs filed a

motion for partial summary judgment on August 13, 2018. (See Pls.’ Mot. for Partial Summ. J.,

Aug. 13, 2018 (ECF No. 177) (“Pls.’ Mot. for Summ. J.”).) 12 DOD has now completed the DOD

investigatory phase for essentially all class members. (See id. at 16 (citing Arendt Decl. ¶ 5

(ECF No. 128-2); Defs.’ July 20, 2018 Status Report (ECF No. 170)).) Therefore, according to

plaintiffs, although they originally attacked the entire July 7 Guidance, now any challenge to the

portion regarding the DOD investigatory phase is moot. (See Pls.’ Mot. for Summ. J. at 6.)

What remains of plaintiffs’ claim as to the July 7 Guidance is their challenge to the MSSD

Requirement, which the Court previously indicated could be considered as part of the second

amended complaint and, if appropriate, it could be addressed separately. (See Order at 2, Apr.

12, 2018.)

Plaintiffs raise a host of arguments challenging the MSSD Requirement. First, they argue

that it violates the APA, 5 U.S.C. § 706(2), in various ways. They argue that it is not in

accordance with law because it oversteps USCIS’s statutory authority to conduct examinations of

applicants, improperly outsourcing to DOD the investigation and assessment of these applicants.

They also argue that the MSSD Requirement is arbitrary and capricious in violation of § 706(2)

12 The motion is for partial summary judgment because the Court deferred briefing on plaintiffs’ claim against DHS/USCIS of unreasonable delay under 5 U.S.C. § 706(1). (See Pls.’ Mot. for Summ. J. at 34 n.3; see also 2d Am. Compl. at 54-55 (naming DHS/USCIS, but not DOD, as defendants in this claim).) Any analysis of whether USCIS is unreasonably delaying the processing of MAVNI naturalization applications had to be deferred until the Court could decide the timing of when that obligation is triggered. (See Order at 1, June 20, 2018 (ECF No. 159) (setting briefing schedule and ordering the parties to exclude arguments about plaintiffs’ unreasonable delay claim); Tr. of Status Conference at 59:11-16, June 20, 2018 (ECF No. 161) (“6/20/18 Tr.”) (explaining that the Court’s analysis of plaintiffs’ arbitrary-and-capricious claim would need to occur before consideration of unreasonable delay).)

24 because the administrative record does not support the decision to wait for DOD and the Army to

make their suitability decisions about applicants, and because USCIS failed to consider

important factors, such as the attendant harms that class members will suffer while awaiting the

lengthy completion of the MSSD Requirement before USCIS will adjudicate a MAVNI’s

naturalization application. Next, plaintiffs argue that the MSSD Requirement violates the APA’s

publication and notice-and-comment requirements, 5 U.S.C. §§ 552, 553. Plaintiffs also argue

that the MSSD Requirement has been applied retroactively to class members whose

naturalization applications should have already been progressing before July 7, 2017. Finally,

plaintiffs argue that the July 7 Guidance violates the Naturalization Clause of the Constitution by

effectively delegating immigration decisions to DOD and substituting DOD standards for those

imposed by Congress.

Defendants filed an opposition and cross-moved for summary judgment. (See Defs.’

Opp’n to Pls.’ Mot. for Partial Summ. J. & Cross Mot. for Summ. J., Nov. 30, 2018 (ECF No.

219) (“Defs.’ Opp’n & Cross Mot.”).) They argue that USCIS was within its power to issue the

July 7 Guidance, and that the MSSD Requirement is lawful. Defendants rely on two primary

rationales to justify the MSSD Requirement. First, they argue that waiting until the Army

renders the MSSD allows USCIS to collect “adverse information that may be relevant to an

applicant’s eligibility for naturalization under the statutory requirements imposed by Congress.”

(Id. at 20-21.) Second, they claim that the information DOD learns during its process may

implicate national-security concerns.

Plaintiffs filed an opposition and reply on December 21, 2018. (See Pls.’ Opp’n &

Reply.) Defendants filed a reply on February 15, 2019. (See Defs.’ Reply in Supp. of Cross

Mot. for Summ. J., Feb. 15, 2019 (ECF No. 237) (“Defs.’ Reply”).) A hearing was held on

25 March 20, 2019. (See 3/20/19 Tr.)

As explained herein, the Court concludes that the MSSD Requirement is arbitrary and

capricious because USCIS’s explanation for it runs counter to the evidence. While defendants’

stated need for more information about naturalization applicants could well justify waiting for

completion of the DOD investigatory phase, that information is essentially irrelevant as long as

the MSSD Requirement remains in effect. For, as is clear from the record, USCIS considers an

applicant’s MSSD determinative of his or her eligibility to naturalize under § 1440, and

therefore, it has no need to review the information from the DOD investigatory phase. Because

the Court finds that the MSSD Requirement is arbitrary and capricious, and it will vacate that

portion of the July 7 Guidance, the Court need not address the many additional claims raised by

plaintiffs.

ANALYSIS

I. LEGAL STANDARDS

Under the APA, a reviewing court must hold unlawful and set aside a final agency action

if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A). The arbitrary-and-capricious standard “obligates the agency to examine all

relevant factors and record evidence, and to articulate a reasoned explanation for its decision.”

Am. Wild Horse Preservation Campaign v. Perdue, 873 F.3d 914, 923 (D.C. Cir. 2017) (citing

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983)). A rule is

arbitrary and capricious if the agency

(1) “has relied on factors which Congress has not intended it to consider,” (2) “entirely failed to consider an important aspect of the problem,” (3) “offered an explanation for its decision that runs counter to the evidence before the agency,” or (4) [offers an explanation that] “is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

26 United States Sugar Corp. v. EPA, 830 F.3d 579, 606 (D.C. Cir. 2016) (quoting State Farm, 463

U.S. at 43). The agency “must examine the relevant data and articulate a satisfactory explanation

for its action including a rational connection between the facts found and the choice made.”

Encino Motorcars, LLC, v. Navarro, 136 S. Ct. 2117, 2125 (2016) (quoting State Farm, 463 U.S.

at 43). The agency’s explanation must be “sufficient to enable us to conclude that the [agency’s

action] was the product of reasoned decisionmaking.” Owner-Operator Indep. Drivers Ass’n,

Inc. v. Fed. Motor Carrier Safety Admin., 494 F.3d 188, 203 (D.C. Cir. 2007) (quoting State

Farm, 463 U.S. at 52).

A court must not substitute its judgment for the agency’s, but its review nonetheless

“must go beyond the agency’s procedures to include the substantive reasonableness of its

decision,” and in so doing the court must make a “‘thorough, probing, in-depth review’ to

determine if the agency has considered the relevant factors or committed a clear error of

judgment.” James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1098 (D.C. Cir. 1996)

(quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16 (1971)).

In evaluating agency action under the APA, “the focal point for judicial review should be

the administrative record already in existence, not some new record made initially in the

reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam). Courts have, however,

recognized limited exceptions to this restriction. One occurs where “there was such a failure to

explain administrative action as to frustrate effective judicial review.” Id. at 142-43. In such

cases a court may obtain “additional explanation of the reasons for the agency decision as may

prove necessary,” id. at 143, but they “should contain no new rationalizations.” Envtl. Def.

Fund, Inc. v. Costle, 657 F.2d 275, 285 (D.C. Cir. 1981) (citing Bunker Hill Co. v. EPA, 572

F.2d 1286, 1292 (9th Cir. 1977)). A reviewing court should “consider evidence relevant to the

27 substantive merits of the agency action only for background information . . . or for the limited

purposes of ascertaining whether the agency considered all the relevant factors or fully

explicated its course of conduct or grounds for decision.” Asarco, Inc. v. EPA, 616 F.2d 1153,

1160 (9th Cir. 1980).

Post-decisional information may also be considered in certain cases. Thus, the D.C.

Circuit has held that events that transpired after the challenged action may be considered if they

“bear upon the issues before [the court].” Amoco Oil Co. v. EPA, 501 F.2d 722, 729 (D.C. Cir.

1974). In Amoco Oil, Congressional testimony that post-dated the agency action was admitted

because it bore “directly on the plausibility of certain predictions made by the [agency] in

promulgating the [challenged regulations].” Id. at 729 n.10. Specifically, the Circuit found that

the agency’s reliance on a prediction that certain converters would be in “general use”

nationwide in car manufacturing had been “dramatically vindicated by subsequent testimony” of

industry executives indicating that the regulated companies planned to “make extensive,

nationwide use of converters in the 1975 model year.” Id. at 738. The Court explained, “[r]ule-

making is necessarily forward-looking, and by the time judicial review is secured events may

have progressed sufficiently to indicate the truth or falsity of agency predictions. We do not think

a court need blind itself to such events. . . .” Id. at 729 n.10. The Tenth Circuit also has found

that “new data” may be considered if it is “pertinent to show the validity of” the agency action.

Am. Petroleum Inst. v. EPA, 540 F.2d 1023, 1034 (10th Cir. 1976) (citing Amoco Oil Co., 501

F.2d at 729 n. 10); see also Ass’n of Pac. Fisheries v. EPA, 615 F.2d 794, 812 (9th Cir. 1980)

(noting that post-decisional data may be considered if it illuminates the original decision or

shows “that the Agency proceeded upon assumptions that were entirely fictional or utterly

without scientific support”).

28 II. ANALYSIS

A. The July 7 Guidance

1. The MSSD Requirement

The Court finds that the July 7 Guidance explicitly incorporates by reference the Sept. 30

Memo screening requirements, including the DOD and Army adjudicatory phase that culminates

in the MSSD. Although plaintiffs argue that the July 7 Guidance does not “mention[]” the

MSSD as a precondition for USCIS to process a naturalization application (see Pls.’ Opp’n &

Reply at 8-9), it is clear from the July 7 Guidance that its directive to wait “until all enhanced

DoD security checks are completed” means to wait for the final MSSD. (July 7 Guidance at 2

(USCIS AR 5).) Contrary to their present position, plaintiffs previously recognized that the July

7 Guidance explicitly incorporated the Sept. 30 Memo and its refinements:

[T]he July 7 Policy itself expressly references the September 2016 DoD Memo. In fact, the Policy states that it is being enacted in order to bring USCIS policy “in alignment with” the September 2016 DoD Memo: “[E]ach applicant must receive proper DoD vetting and clearance in alignment with the September 30, 2016 MAVNI extension authorization and restrictions.” As such, it must be the case that the “vetting and clearance” described in the September 2016 DoD Memo is a factor relevant to the July 7 Policy.

(Pls.’ Mem. of Pts. & Auths. in Support of Pls.’ Mot. Re. Defs.’ Certified Admin. Record for the

July 7 Policy at 6, Apr. 10, 2018 (ECF No. 133) (citations omitted).) In turn, the Sept. 30 Memo

clearly describes both the DOD investigatory phase and the MSSD Requirement, as it imposes

“Security and Suitability Screening Requirements” which include the DOD investigatory phase

and a “Military Suitability Determination” by the Service based on a recommendation by DOD

CAF. (See Sept. 30 Memo at USCIS AR 238.)

The Court rejects defendants’ argument that the Court cannot consider the MSSD

Requirement alone, but instead must “consider the legality of the Guidance as a whole.” (Defs.’

29 Opp’n & Cross Mot. at 19 n.11.) Courts may “‘set aside’ only the part of a rule found to be

invalid” because “[i]t would . . . exceed the statutory scope of review for a court to set aside an

entire rule where only a part is invalid. . . .” See Catholic Soc. Serv. v. Shalala, 12 F.3d 1123,

1128 (D.C. Cir. 1994) (quoting 5 U.S.C. § 706(2)). The DOD investigatory phase and the

MSSD Requirement are both contemplated by the July 7 Guidance, but they are clearly distinct

phases of the process. The DOD investigatory phase involves investigation and information-

gathering, while the MSSR and MSSD processes involve, to borrow defense counsel’s

characterization, “synthesizing” that information for the specific purpose of assessing military

suitability. (3/20/19 Tr. at 27:12.) The reasons that may justify USCIS’s waiting for the DOD

investigatory phase do not necessarily support the MSSD Requirement. Waiting for the MSSD

also considerably lengthens the time before USCIS can address naturalization applications. 13

Furthermore, as plaintiffs argue, their original challenge to the DOD investigatory phase is now

moot, given that “the vast majority of class members” have completed the DOD investigatory

phase. (Defs.’ Opp’n & Cross Mot. at 19 n.11; see also Defs.’ Reply at 2 n.3.) The Court will

therefore review the reasonableness of the MSSD Requirement alone and treat the challenge to

the DOD investigatory phase as moot.

2. Defendants’ Position Regarding the July 7 Guidance

Defendants argue that the purpose of the MSSD Requirement is to help USCIS gather

relevant information from DOD about applicants—to “wait until [DOD’s process is] over. . . .

What USCIS knows is that the process generates information. And it is information that could []

potentially be useful.” (3/20/19 Tr. at 30:24-31:8.) They assert that the MSSD Requirement

13 This time lapse between the conclusion of the DOD investigatory phase and the MSSD is likely to be lengthened even more for those MAVNIs who challenge their “non-recommend” MSSRs pursuant to the Oct. 26 DOD Memo adopted in the Calixto litigation.

30 ensures that USCIS “may review any information that may have emerged throughout the entire

DoD process.” (Defs.’ Reply at 9.) According to defendants, waiting for this information helps

USCIS meet its statutory obligation to “ensur[e] that these applicants possess the requisite good

moral character and attachment to the Constitution necessary to naturalize.” (Defs.’ Opp’n &

Cross Mot. at 35 (citing USCIS AR 2-7).)

Defendants insist that USCIS needs this information even if an applicant receives an

unsuitable MSSD and will therefore be deemed ineligible by virtue of the characterization of his

or her discharge. They deny that “USCIS mechanically treats adverse MSSDs based on

‘unmitigable derogatory information’ as an automatic disqualifier without analyzing the

underlying information itself.” (Defs.’ Reply at 13 n.11.) According to defendants, “USCIS did

not issue the July 7 Guidance for the purpose of learning how MAVNI recruits who are separated

would be discharged,” so “[t]he import of an ‘uncharacterized’ discharge is not at issue in this

case.” (Defs.’ Reply at 14.) But, as explained infra, their position is at odds with the

administrative record, the statutory and regulatory framework, and the statements of

representatives of USCIS.

3. The Army’s Position Regarding Uncharacterized Discharge

Central to the question before the Court is an understanding of the concept of

uncharacterized discharge and its importance to MAVNI enlistment in the Army and to

MAVNIs’ naturalization applications.

Essentially, all Nio class members who have not yet received a final MSSD are drilling in

DTP awaiting shipment to Basic Training. (See 3/20/19 Tr. at 38:15-18.)14 Pursuant to Army

14 It is possible that a de minimis number of class members have attended Basic Training (see 3/20/19 Tr. at 51:16-19), but given the mandate of the Sept. 30 Memo, the vast majority of current class members are reservists in DTP and by definition in entry-level status.

31 Regulations, the Army categorizes these soldiers as “entry level” because they are reservists who

have not yet attended Basic Training. (See Army Reg. 135–178 Glossary § II (defining “[e]ntry

level status”).) By default, any entry-level discharge of a MAVNI reservist is labeled as

“uncharacterized.” (See id. § 2–11(a).) Defendants view an entry-level, uncharacterized

discharge as a neutral classification, neither honorable nor dishonorable. (See 6/20/18 Tr. at

41:9-16 (ECF No. 161).) For most administrative purposes, DOD treats an uncharacterized

discharge as honorable or general. See DODI 1332.14, Enlisted Administrative Separations,

Encl. 4, § 3c(1)(c) (Pls.’ Appx. 60) (“[For] administrative matters . . . that require a

characterization as honorable or general, an entry-level separation will be treated as the required

characterization.”). Those with an uncharacterized discharge also are not necessarily barred

from receiving certain veterans’ benefits. See 38 C.F.R. § 3.12(k)(1) (eligibility for pension and

other benefits is barred by a dishonorable discharge, but entry-level uncharacterized separations

“shall be considered under conditions other than dishonorable”).

As soon as a soldier’s MSSD is issued, if the soldier is found unsuitable for service for

any reason, he or she is discharged promptly, and the discharge will be “uncharacterized” by

virtue of the soldier’s entry-level status. For instance, the Sept. 30 Memo indicates that

discharge should be initiated immediately after an individual receives an unsuitable MSSD. (See

Sept. 30 Memo at USCIS AR 241; see also Oct. 26 DOD Memo at 2 (providing that when a DTP

soldier is to be separated on the basis of “an unfavorable MSSD or NSD, the Army Reserve

Command “will initiate administrative separation proceedings”); Defs.’ Status Report, Feb. 8,

2019 (ECF No. 234) (indicating that, of the 24 class members who had been discharged due to

an unsuitable MSSD, 22 were effectively discharged within a month or less of the MSSD date).)

32 4. USCIS’s Position Regarding Uncharacterized Discharge

Regardless of whether a soldier has received an N-426 certification of honorable service

from the Army, USCIS’s interpretation of § 1440 is that a MAVNI who is no longer serving is

only eligible to naturalize if the Army discharged him or her under honorable or general under

honorable conditions. According to USCIS, “an uncharacterized discharge . . . [is] not honorable

and it’s not general under honorable. And the way USCIS views 1440 is that you have to fall

into one of those first two categories.” (3/20/19 Tr. at 13:7-12.) Defendants explained the same

interpretation to the Court shortly after the issuance of the July 7 Guidance: “An uncharacterized

discharge . . . means that the individual would no longer be eligible to become a naturalized

citizen under the MAVNI program.” Nio PI Op., 270 F. Supp. 3d at 54 (citing 8/23/17 Tr. at 24-

25). Indeed, as USCIS counsel explained at the Court’s March 20, 2019 hearing, this

interpretation has been in the USCIS Policy Manual since at least 2008. (See 3/20/19 Tr. at

13:25-15:2.) See also 12 USCIS Policy Manual, pt. I, ch. 3, § B (“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.”).

Defendants nonetheless acknowledge that there are significant differences between the

standards for USCIS naturalization adjudications and the DOD/Army standards for military

suitability. For example, defendants acknowledge that “some factors considered at the [DOD]

CAF may be less relevant in the naturalization context (e.g., financial considerations).” (Defs.’

Opp’n & Cross Mot. at 28; see also Pls.’ Mot. for Partial Summ. J. at 11-13 ¶¶ 7-14.) The 13

Adjudicative Guidelines, on which the DOD and Army suitability decisions are based, require

consideration of behavior that could make an individual vulnerable to coercion in the context of

33 handling classified information—for example, two of the 13 Adjudicative Guidelines are “Use of

Information Technology Systems” and “Financial Considerations”—but may be less relevant to

a USCIS assessment of the individual’s moral character. (See Adjudicative Guidelines at 1-3

(Pls.’ Appx. 95-97).) Moreover, in rendering an assessment under the Adjudicative Guidelines,

any doubts “will be resolved in favor of the national security.” (Id. at 2 (Pls.’ Appx. 96).) By

contrast, in assessing good moral character USCIS has discretion to evaluate the applicant’s

character in the context of “the standards of the average citizen in the community of residence.”

8 C.F.R. § 316.10(a)(2).

DOD also recognizes these distinctions. As Ms. Miller, Director of DOD’s Accession

Policy Directorate, explained in another MAVNI case, these different standards would be

expected to result in at least some individuals being found “unsuitable” for service, but still

eligible to naturalize under the USCIS requirements:

When we screen someone for the purpose of suitability and security, we’re screening at a fairly high threshold. So an individual who may have a known or unknown relative that works for a foreign defense department or foreign intelligence agency, the individual themselves may have no malicious intent towards the United States or to the government; but we cannot mitigate the fact that they have a direct relative working for a foreign intelligence agency. So, therefore, the individual may not be suitable to hold a national security position [i.e., to serve as a soldier]. But ultimately that may not mean that the individual is not suitable to ultimately become a United States citizen. And we have tried very hard to make that distinguishing factor with our colleagues at Department of Homeland Security and USCIS. So they may not be able to serve [or continue serving] in the military, but that may not bear on [USCIS’s] final determination as to whether that individual should be naturalized.

(Trial Testimony of Stephanie Miller at 152-53, Nov. 28, 2018 (Tiwari v. Mattis, No. C17-

00242-TSZ (W.D. Wash.)), Ex. 8 to Pls.’ Notice, Mar. 24, 2019 (ECF No. 244-8).)

In practice, however, USCIS is making no such independent assessment, because it treats

34 an unsuitable MSSD as determinative for purposes of naturalization. The Sept. 30 Memo

mandates that any MAVNI who does not yet have a final MSSD from DOD cannot ship to Basic

Training and therefore must remain in DTP and thus in an entry-level status. Any of these

MAVNIs whose MSSD is unsuitable will be discharged promptly, and that discharge will be

uncharacterized. See Army Reg. 135–178 § 2–11(a). USCIS will consider him or her

automatically ineligible to naturalize. There is no need to proceed with the application, and no

need to review the underlying information from the DOD investigatory phase. Meanwhile, any

class member found suitable will proceed to the naturalization process without USCIS

considering the results of the DOD investigatory phase, because USCIS does not review the

underlying information of those found suitable for service. (See Defs.’ Opp’n & Cross Mot. at

28.)

Defendants note that the MSSD Requirement allows USCIS to “avoid[] having to deploy

its resources to review DoD background check information . . . where the MSSD is favorable.

Rather, it can reserve its resources for the fewer cases in which the MSSD is unfavorable. . . .”

(Id.) However, this contention is belied by the fact that the information is of no consequence

because USCIS deems any applicant with an uncharacterized discharge to be ineligible for

naturalization under § 1440. According to defendants, if MAVNIs receive from the Army

“honorable discharges or general discharges then they will be eligible for naturalization. If they

get uncharacterized discharges, the government thinks they won’t. . . . The government thinks

that an uncharacterized discharge would not be sufficient to naturalize under 1440.” (Tr. of

Motions Hearing at 38:1-25, Oct. 3, 2018 (ECF No. 197) (“10/3/18 Tr.”).) See also Nio PI Op.,

270 F. Supp. 3d at 54 (citing Tr. of Status Conf. Hearing Cont’d Oral Argument on Prelim.

Injunction Mot. at 24:16-25:24, Aug. 23, 2017 (ECF No. 37) (“8/23/17 Tr.”)). Defendants also

35 admit that USCIS “need[s] to find out how [MAVNIs have] been discharged” because an

applicant’s uncharacterized discharge “trigger[s]” the statutory honorable-service requirement.

(3/20/19 Tr. at 50:3-6.)15

The July 7 Guidance cites as justifications the fact that DOD’s background checks can

reveal information relevant to good moral character, attachment to the Constitution, and national

security. (See July 7 Guidance at 1-2 (USCIS AR 4-5).) These justifications may well support

USCIS waiting until the end of the DOD investigatory phase, when any such information would

be discovered. They do not, however, justify the MSSD Requirement. We know, for instance,

that USCIS understood the benefits of knowing an applicant’s MSSD and resulting discharge

characterization. In a sworn declaration the same day as the July 7 Guidance, its author

highlighted the fact that a naturalization applicant would be “ineligible for naturalization” under

§ 1440 if he or she received a “discharge from the Armed Forces under other than honorable

conditions.” (7/7/17 Renaud Decl. ¶ 18 (USCIS AR 248).) The usefulness of this information is

also acknowledged by defendants in their pleadings, where they recognize that waiting for the

MSSD is “reasonable because an applicant who receives an unfavorable MSSD is subject to

discharge, and characterization of discharge has a clear bearing on naturalization eligibility under

8 U.S.C. § 1440(a).” (Defs.’ Reply at 14.)

As noted, the DOD investigatory phase may generate information relevant to good moral

15 Plaintiffs argue strenuously that USCIS’s interpretation of § 1440 is unlawful because by statute and DODI an entry-level uncharacterized discharge must be treated as honorable for these purposes. See 10 U.S.C. § 12685 (“A member of a reserve component who is separated for cause . . . is entitled to a discharge under honorable conditions.”); DODI 1332.14, Encl. 4, § 3c(1)(c) (Pls.’ Appx. 60) (“With respect to administrative matters outside this instruction that require a characterization as honorable or general, an entry-level separation will be treated as the required characterization.”). Whether USCIS’s position is legally correct is not before the Court, but rather the issue here is whether the MSSD Requirement is arbitrary and capricious in violation of the APA.

36 character, attachment to the Constitution, and national security. And, as defendants point out,

the administrative record contains references to MAVNIs about whom the DOD investigatory

phase revealed “derogatory information that USCIS would have considered” had the MAVNIs

not already been naturalized. (3/5/18 Renaud Decl. ¶ 3 (USCIS AR 2).) 16 However, any such

information would be revealed during the DOD investigatory phase. The MSSD Requirement

results in USCIS receiving no new derogatory information, and thus defendants’ need for

information bears no “rational connection” to the MSSD Requirement. Encino Motorcars, 136

S. Ct. at 2125 (quoting State Farm, 463 U.S. at 43). Indeed, the only relevant information

revealed to USCIS is, in the case of an unsuitable MSSD, that the applicant will inevitably and

imminently receive an uncharacterized discharge.

Waiting for the MSSD does not ensure that USCIS receives relevant information; it

obviates USCIS’s need for that information. An unfavorable MSSD is determinative: because it

results in an uncharacterized discharge, USCIS will reject the application as automatically

ineligible. This has been USCIS’s practice since at least 2008, when the USCIS Policy Manual

was adopted. (See 3/20/19 Tr. at 14:22-23.) In a representative case from 2010, a federal court

in Indiana reviewed USCIS’s denial of a naturalization application under § 1440 because the

MAVNI’s entry-level discharge was uncharacterized. See, e.g., Oyebade v. Lee, 2010 WL

16 While the Court need not reach the lawfulness of USCIS waiting for the DOD investigatory phase because that issue is moot, see supra Section II.A.1, the Court recognizes the principle that courts should not second-guess the executive regarding matters of national security. See Nio PI Op., 270 F. Supp. 3d at 65 (citing Ziglar v. Abbasi, 137 S. Ct. 1843, 1861 (2017) (“National- security policy is the prerogative of the Congress and President.”); see also Doe 2 v. Shanahan, 755 F. App’x 19, 24-25 (D.C. Cir. 2019) (collecting cases recognizing the deference courts owe to the executive in military and national-security decision-making). The Court similarly recognizes the limited scope of its review in matters of immigration policy. See Trump v. Hawaii, 138 S. Ct. 2392, 2418-19 (2018). However, any information that could bear on national security is collected before the MSSR/MSSD process and thus cannot justify the MSSD Requirement.

37 2927207 at *1, *5 (S.D. Ind. 2010). The Oyebade court noted that the applicant’s

uncharacterized discharge denoted a wholly “neutral” classification and the USCIS denial was

based on the agency’s long-standing interpretation of that neutrality as insufficient to satisfy the

honorable-service requirement under § 1440. See id.

This approach continues to be followed today. Plaintiffs have filed a written decision by

USCIS denying a MAVNI soldier’s N-400 application for naturalization. (USCIS Decision, Feb.

14, 2019, Ex. 1 to Pls.’ Notice, Mar. 24, 2019 (ECF No. 244-1).) 17 The USCIS decision explains

that the denial is based on the applicant’s “uncharacterized” entry-level discharge from the

military, which renders the applicant ineligible under § 1440. (See id.) It does not include any

discussion of other statutory factors such as good moral character.

In point of fact, the MSSD Requirement allows USCIS to learn the characterization of the

applicant’s discharge in contravention of the principle recognized in some cases that USCIS may

not delay the processing of naturalization applications so it can wait to see if an applicant

becomes disqualified. See, e.g., Al Karim v. Holder, 2010 WL 1254840 at *3 (D. Colo. Mar. 29,

2010) (holding that adjudication of an immigration benefit may not be delayed to see whether the

applicant’s “classification . . . may change at some indeterminate point in the future”); see also

Jaa v. INS, 779 F.2d 569, 572 (9th Cir. 1986) (suggesting that deliberate delay by the

government, in order to see if the applicant became ineligible for an immigrant visa, could be

impermissible).

As a result of USCIS’s reading of the honorable-service requirement under § 1440, there

is no need for USCIS to conduct its own investigations of eligible applicants, as required by 8

17 Plaintiffs offered the USCIS decision as rebuttal evidence to counter defendants’ contention that the underlying information from the DOD investigatory phase is relevant even when USCIS knows the applicant has received an uncharacterized discharge. (See 3/20/19 Tr. at 110:6-12.)

38 U.S.C. § 1446(b), or to independently assess applicants’ good moral character or attachment to

the Constitution. In effect, DOD’s and the Army’s decisions as to whether a class member is

suitable for service operate as a proxy for USCIS. Given this reality, defendants’ argument that

an applicant’s uncharacterized discharge is irrelevant to this case rings hollow. Defendants’

justifications for the MSSD Requirement are also belied by the fact that USCIS learns no new

information about naturalization applicants except the resulting MSSD and, if it is unsuitable,

that the applicant will receive an uncharacterized discharge. The Court therefore finds that the

MSSD Requirement is arbitrary and capricious in violation of § 706(2)(A).

B. Relief

The Court will vacate the MSSD Requirement only and it need not reach the validity of

the remainder of the July 7 Guidance (i.e., the DOD investigatory phase), to which any challenge

is moot. The Court rejects plaintiffs’ argument that the entire July 7 Guidance must be

invalidated. Under the APA, a reviewing court may hold unlawful and set aside an “agency

action,” 5 U.S.C. § 706(2)(A), and the definition of agency action “includes the whole or a part

of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to

act. . . .” 5 U.S.C. § 551(13) (emphasis added). The D.C. Circuit has held that courts may reject

only “the part of a rule found to be invalid” because “[i]t would . . . exceed the statutory scope of

review for a court to set aside an entire rule where only a part is invalid, and where the remaining

portion may sensibly be given independent life.” Catholic Soc. Serv. v. Shalala, 12 F.3d 1123,

1128 (D.C. Cir. 1994); see also Wilmina Shipping AS v. DHS, 75 F. Supp. 3d 163, 172-73

(D.D.C. 2014) (finding that a portion of a challenged agency action was severable).

The Court also rejects defendants’ argument that the Court should not vacate the MSSD

Requirement. (See Defs.’ Reply at 15 n.13.) The APA provides that an agency action that is

39 arbitrary and capricious shall be “set aside.” 5 U.S.C. § 706(2)(A). Generally, when a court

finds that a challenged action is arbitrary and capricious, the remedy is vacatur. It is true that in

certain circumstances courts have discretion to remand to the agency for reconsideration or

further explanation. For example, a court may decline to vacate a rule if doing so would be

highly disruptive, see N. Air Cargo v. United States Postal Serv., 674 F.3d 852, 860-61 (D.C.

Cir. 2012); Allied-Signal, Inc. v. United States Nuclear Regulatory Com’n, 988 F.2d 146, 150-51

(D.C. Cir. 1993), or where the prevailing party’s interests would not be served. See, e.g., Envtl.

Def. Fund, Inc. v. EPA, 898 F.2d 183, 190 (D.C. Cir. 1990) (declining to vacate because “to do

so would at least temporarily defeat petitioner’s purpose”).

That is not the case here. The DOD investigatory phase is complete for members of the

class, so USCIS can proceed to process their naturalization applications. And if the MSSD

Requirement remains in effect class members certainly will suffer harm, since their applications

may not be evaluated by USCIS based on the standards that govern naturalization, as opposed to

suitability for military service. The Court will therefore vacate the MSSD Requirement.

CONCLUSION

For the foregoing reasons, plaintiffs’ motion for partial summary judgment will be

granted in part and defendants’ cross-motion will be denied. Summary judgment will be entered

for plaintiffs as to their argument that the MSSD Requirement is arbitrary and capricious in

violation of 5 U.S.C. § 706(2). The MSSD Requirement will be vacated. A separate order

incorporates the Court’s conclusion and sets this matter down for a status conference.

ELLEN SEGAL HUVELLE United States District Judge Date: May 22, 2019