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Tiwari v. Mattis

United States District Court, W.D. Washington, Seattle

December 19, 2017

KIRTI TIWARI, et al., Plaintiffs,
v.
JAMES MATTIS, Secretary, U.S. Department of Defense, in his official capacity, Defendant.

          ORDER

          Thomas S. Zilly, United States District Judge

         THIS MATTER comes before the Court on Defendant's Motion to Dismiss Third Amended Complaint, docket no. 70 (the “Motion”). Having reviewed all papers filed in support of, and in opposition to, the Motion, the Court enters the following order.

         Background

         This action, challenging the constitutionality of the Military Accessions Vital to National Interest (“MAVNI”) program, began with seven (7) named plaintiffs. See Complaint for Declaratory and Injunctive Relief Based on Deprivation of Constitutional Rights, docket no. 1. Plaintiff Raj Chettri was added when the First Amended Complaint, docket no. 6, was filed. Eight (8) additional plaintiffs were added when the Second Amended Complaint, docket no. 30, was filed. The Third Amended Complaint for Declaratory and Injunctive Relief Based on Deprivation of Constitutional Rights, docket no. 63 (hereinafter referred to as the “Complaint”), added three (3) additional plaintiffs- for a total of nineteen (19) plaintiffs currently named in this lawsuit. Each plaintiff enlisted in the armed forces under the MAVNI program. The Complaint alleges “national origin discrimination imposed by the Department of Defense (DoD) on all naturalized U.S. citizen soldiers who entered the U.S. armed services through the Military Accessions Vital to National Interest (MAVNI) Program, thereby disrupting, delaying and often crippling their military careers and preventing them from fully using their talents for the benefit of the national defense.” Complaint ¶ 1. Plaintiffs allege that the Department of Defense (DoD) has impermissibly applied heightened security screening, continuous monitoring, and counter intelligence measures to MAVNI recruits. Plaintiffs bring a single claim seeking declaratory and injunctive relief prohibiting DoD “from engaging in actions that discriminate against naturalized U.S. citizen MAVNI soldiers in violation of Plaintiffs' . . . equal protection rights as guaranteed by the Due Process Clause of the Fifth Amendment of the U.S. Constitution.” Id. at ¶¶ 288-90.

         Defendant James Mattis, Secretary, U.S. Department of Defense (“Defendant”), asserts various grounds for dismissal, including mootness, lack of standing, and failure to state a claim. The Court disagrees with Defendant that Plaintiffs' claims are moot or that Plaintiffs lack standing. The Court also finds that Plaintiffs have stated a claim for national origin discrimination in violation of the Fifth Amendment. Defendant's Motion is therefore DENIED for the reasons stated in this order.

         A. History of the MAVNI Program

         In 2008, the Secretary of Defense first authorized the MAVNI Pilot Program, which allowed non-U.S. citizens to enlist in the military if they were legally present in the United States and did not yet have “green cards” but met certain other requirements. See Complaint ¶¶ 3-4. Specifically, the MAVNI program expanded recruiting to legal non-citizens who are (1) fully licensed health care professionals in critically short specialties, or (2) speak one of 44 strategic languages. Id. at ¶ 4; December 2014 Enlisted MAVNI Information Paper, docket no. 63-2. (“2014 MAVNI Paper”), at 1 (attached as Exhibit 2 to the Complaint).[1]

         In September 2012, DoD issued an updated information paper imposing, among other things, the following security clearance policy: “all MAVNI recruits will be subject to enhanced security screening measures which will occur while you are in the Delayed Entry Program (DEP) before you ship to [Basic Combat Training (BCT)].” September 2012 MAVNI Information Paper, docket no. 63-1 (“2012 MAVNI Paper”), at 7 (attached as Exhibit 1 to the Complaint); Complaint ¶ 6.

         The 2014 MAVNI Paper revised this policy by confirming the security screening measures “will occur while you are in the Army Reserve Delayed Training Program (DTP) before you ship to BCT. You will be required to remain in the DTP for at least 180 days to allow for the completion of the security checks.” 2014 MAVNI Paper at 7.

         On September 30, 2016, DoD announced that, subject to certain conditions, MAVNI “[e]ligibility is extended to aliens in the following categories of enlistment: a. Asylee, refugee, Temporary Protected Status (TPS), or b. [one of several] [n]on-immigrant categories . . . .” Sept. 30, 2016, Memorandum from Peter Levine, docket no. 63-3 (the “Sept. 30, 2016, Memo”) at 4 (attached as Exhibit 3 to the Complaint). MAVNI recruits were nonetheless ineligible for an interim security clearance until after their first term of enlistment. Id.

         The September 30, 2016, Memo also confirmed that “[a]ll personnel accessed through the MAVNI program since its inception in 2009 must be continuously monitored and accounted for throughout the duration of their affiliation with the Department of Defense . . . .” September 30, 2016, Memo at 2; see also Jan. 6, 2017, Memorandum from Debra S. Wada, docket no. 63-4 (the “Wada Memo”) at 1 (attached as Exhibit 4 to the Complaint). MAVNI recruits are also subject to a counter intelligence security interview prior to receiving a suitability determination. September 30, 2016, Memo at 6, 9.

         Plaintiffs initiated this lawsuit on February 16, 2017. On June 21, 2017, DoD revised its security clearance policy as follows: “Effective immediately, individuals enlisted under the MAVNI Pilot Program who have successfully completed basic military training/boot camp (completion of formal skills training is not required), and have become naturalized U.S. citizens based on their military service, may be considered for a security clearance under the same terms, conditions, and criteria as any other U.S. citizen.” June 21, 2017, Memorandum from A.M. Kurta, docket no. 63-5 (the “Kurta Memo”), at 1 (attached as Exhibit 5 to the Complaint).[2]

         After the parties had completed briefing on this Motion, Defendant notified the Court that, on October 13, 2017, DoD published another set of revisions to the MAVNI policies at issue. First, DoD announced that “continuous monitoring for all MAVNI Service Members [would] include, at a minimum: enrollment in DoD's Continuous Evaluation (CE) program for the entirety of the MAVNI Service Member's military career; and an analytical counterintelligence and security assessment, and a National Intelligence Agency Check (NIAC) every two years.” See Exhibit 1 to Defendant's Notice of Supplemental Authority, docket no. 76-1 (the “First Oct. 13, 2017, Memo”) at 1-2. DoD announced that it would complete the vetting requirements outlined in the Sept. 30, 2016, Memo within 180 days. Id. at 1. Second, DoD clarified the process for making suitability and security determinations for the initial vetting of MAVNI recruits. See Exhibit 2 to Defendant's Notice of Supplemental Authority, docket no. 76-2 (the “Second Oct. 13, 2017, Memo”). Third, DoD offered guidance on how it determines whether a MAVNI soldier has served honorably for purposes of naturalization under 8 U.S.C. § 1440. See Exhibit 3 to Defendant's Notice of Supplemental Authority, docket no. 76-3 (the “Third Oct. 13, 2017, Memo”).

         Notwithstanding these revisions to the MAVNI program, Plaintiffs maintain that DoD continues to discriminate against MAVNI recruits by failing to implement the Kurta Memo in practice and by subjecting them to heightened security clearance, continuous monitoring, and counter intelligence policies.

         B. Procedural History of this Lawsuit

         On April 5, 2017-the same day Plaintiffs filed their First Amended Complaint, docket no. 6-Plaintiffs filed a motion for preliminary injunction arguing that DoD's guidance stating that MAVNI recruits were “ineligible for a security clearance during their initial term of enlistment” was unconstitutionally discriminatory. Docket no. 7, at 1. Defendant opposed Plaintiffs' motion, arguing that “none of the eight Plaintiffs are subject to the policy any longer; one Plaintiff is in his second term of enlistment, while the remaining seven were granted waivers. These events have rendered Plaintiffs' claims moot, thereby undermining their assertions about irreparable injury and their likelihood of prevailing on the merits of their claims.” Docket no. 23, at 7.

         On June 7, 2017, Plaintiffs obtained leave to amend their complaint a second time. Docket no. 29. Plaintiffs filed the Second Amended Complaint, docket no. 30, the next day. When DoD rescinded the challenged security clearance policy pursuant to the Kurta Memo, Plaintiffs filed a Notice of Withdrawal of Motion for Preliminary Injunction, docket no. 48, on June 26, 2017. Three days later, on June 29, 2017, Defendant filed a motion to dismiss the Second Amended Complaint. Docket no. 49. Again, Defendant argued that Plaintiffs' claims were moot because the challenged policy was no longer in effect, and “MAVNI soldiers who become naturalized citizens are now subject to the same criteria and considerations as native-born U.S. citizens for purposes of security-clearance eligibility.” Id. at 1.

         On August 14, 2017, the Court granted Plaintiffs' subsequent request for leave to amend their complaint a third time, but staying all discovery “pending further order of the Court.” Docket no. 62. That same day, Plaintiffs filed the Third Amended Complaint and filed a Motion to Certify Class Action, docket no. 64.

         On August 24, 2017, Plaintiffs moved to lift the discovery stay “if and when the Court denies DoD's . . . [anticipated] motion to dismiss.” Docket no. 67 at 2. The next day, the Court stayed the Motion to Certify Class Action pending resolution of Defendant's forthcoming ...


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