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Tiwari v. Mattis

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

April 11, 2018

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



         THIS MATTER comes before the Court on Plaintiffs' motion for preliminary injunction, docket no. 78 (the “Motion”). The Motion presents the following question: Should the Department of Defense (“Defendant”) be required to treat non-U.S. citizens recruited through the Military Accessions Vital to National Interest (“MAVNI”) program the same way it treats all other U.S. citizen soldiers when issuing interim security clearances? For the reasons stated on the record during oral argument on March 21, 2018, see docket no. 114, the Court answered this question in the affirmative and GRANTED the Motion. This Order further explains those reasons.


         A. The MAVNI program recruits highly trained individuals pursuing professional careers to serve the military in specialized roles.

         The Plaintiffs in this lawsuit are skilled professionals who abandoned educational and professional aspirations as civilians to enlist in the U.S. Army through the MAVNI program. Authorized in 2008, the MAVNI program expanded military recruiting to non-U.S. citizens who: (1) are fully licensed health care professionals in critically short specialties; or (2) speak one of 44 strategic languages. See December 2014 Enlisted MAVNI Information Paper, docket no. 63-2, at 1. “The language portion of MAVNI recruits highly qualified Soldiers to provide broadened language and cultural diversity to the force.” Id. Through the MAVNI program, the Army recruited Plaintiffs from their citizen careers to serve in these specialized roles.

         The military achieved its objective of recruiting a diverse group of skilled professionals with sought-after specialties. Plaintiff Amandeep Singh, for example, is a native of India who came to the United States to attend a university. Declaration of Amandeep Singh, docket no. 112-1 (“Singh Declaration”), at ¶ 2. He graduated from Texas Tech University with a degree in electrical/electronic engineering and, prior to enlisting in the Army, worked as an engineer in the wireless and radio frequency fields for such companies as Blackberry, Ltd., Microsoft Corporation, and Honeywell International, Inc. Id. at ¶ 3. With nearly a decade of professional experience, Mr. Singh enlisted in the U.S. Army Reserve on July 23, 2015, through the MAVNI program. Id. at ¶ 4.

         Plaintiff Qi “Eva” Xiong is another highly qualified MAVNI recruit. Ms. Xiong is a native of China who received a Doctor of Dental Surgery from the University of Colorado. Declaration of Qi “Eva” Xiong, docket no. 105-2 (“Xiong Declaration”), at ¶ 2. Since becoming a licensed board certified dentist, she has worked as a dentist in both Illinois and Missouri. Id. Ms. Xiong enlisted in the U.S. Army Reserve on November 10, 2015, to serve as a dentist through the MAVNI program. Id. at ¶¶ 3-4. Despite enlisting as a dentist, Xiong has not been allowed to practice dentistry with the Army because she has not received a security clearance. Id.

         Valdeta Mehanja is a native of Kosovo who lived in extreme poverty before fleeing to Germany as a child. Declaration of Valdeta Mehanja, docket no. 73-1 (“Mehanja Declaration”), at ¶ 3. After finishing high school, Mehanja worked for several contractors in the IT function, obtained various IT certifications, and became experienced with “ground-to-air and aircraft-to-aircraft communications . . . .” Mehanja Declaration at ¶¶ 4-5. Using the money she had saved, she paid her way through Embry Riddle University where she earned a degree in Aeronautical Science. Id. at ¶ 6. She received a series of ratings and licenses while at Embry Riddle and began working as a flight instructor during her third year. Id. at ¶¶ 7-8. Among other honors and accolades, Mehanja was selected by Embry Riddle “to serve as Pilot-in-Command of the school's entry in the Women's Air Race Classic, a four-day transcontinental flight competition.” Id. at ¶ 8. She has logged approximately 2, 000 hours of flight time. Id.

         Mehanja enlisted in the Army through the MAVNI program on February 27, 2015. During Basic Combat Training, she graduated with the highest female Army Physical Test score in her platoon. Id. at ¶ 11. She finished Advanced Individual Training as a UH-60 Blackhawk repairer with a 97% GPA and honors from the Aviation Logistics School. Id. Her Battalion Commander stated that “[s]he is without a doubt one of the most competent, caring, and professional leaders I have worked with in 22 years of service.” Id. at ¶ 17.

         Despite her qualifications, she too was told that she was not eligible to obtain a security clearance and proceed with the necessary training and education to become a Warrant Officer-the position she had hoped to attain when she enlisted. Id. at ¶¶ 18, 29. Her goal is to become a Blackhawk Helicopter pilot. Id. at ¶ 12. Prior to initiating this lawsuit and filing the Motion, Mehanja was unable to fly for the Army because she had been denied a security clearance. Id. at ¶ 29; see also Declaration of Neil T. O'Donnell, docket no. 90-3 (“O'Donnell Declaration”), at ¶ 8 (as of February 2, 2018, “Valdeta Mehanja has not received either a final or an interim security clearance.”).

         Like Mr. Singh, Ms. Xiong, and Ms. Mehanja, the other Plaintiffs in this lawsuit enlisted in the Army, became naturalized citizens, and serve the United States by using their specialized skills. Like all other soldiers serving in the Army, the MAVNI soldiers must oftentimes complete additional specialized schooling-such as officer command school or Warrant Officer school-before Defendant promotes them to their desired roles. See, e.g., Singh Declaration, at ¶¶ 6-7; Xiong Declaration, at ¶ 6; Mehanja Declaration, at ¶ 29.

         To participate in these programs, MAVNI soldiers must obtain a security clearance or “interim security clearance.” See, e.g., id. Sometimes Defendant enforces this requirement before allowing the soldiers to enroll. Other times, MAVNI soldiers have been permitted to attend OCS, complete all necessary coursework, but have then been designated “security holdovers” pending a security clearance determination. See, e.g., Declaration of Yang Zhidong, docket no.105-6 (“Zhidong Declaration”), [1] at ¶¶ 5-6. Even though these soldiers have completed OCS, they have been relegated to various administrative roles pending their security clearance determinations. For example, Mr. Zhidong-who holds a Master's Degree in International Economics from Johns Hopkins-is an administrative assistant to an infantry battalion chaplain, where he performs routine tasks such as planning events, logistics, and travel. Id. at ¶ 6.

         Regardless of when Defendant requires a MAVNI soldier to obtain an interim security clearance, the record shows that these interim security clearances are necessary for MAVNI soldiers to progress in rank and serve in the specialized roles the Army recruited them for.

         B. Plaintiffs challenge their inability to receive interim security clearances on the same terms, conditions, and criteria as all other U.S. citizen soldiers.

         Since the program's inception, Defendant has subjected soldiers enlisted through the MAVNI program to various counter intelligence policies designed to detect and assess potential threats to national security.[2] These policies have delayed or outright prevented MAVNI soldiers from obtaining security clearances which, in turn, has precluded these soldiers from advancing their military careers and serving in their areas of expertise.

         Plaintiffs contest the constitutionality of these counter intelligence policies, which Defendant does not impose on other soldiers who did not enlist through the MAVNI program. Plaintiffs' Third Amended Complaint, docket no. 63 (the “Complaint”), specifically challenges these policies and asserts a single claim for declaratory and injunctive relief “prohibiting Defendant from engaging in actions that discriminate against naturalized U.S citizen MAVNI soldiers in violation of Plaintiffs' . . . equal ...

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