Kuang v. U.S. Dep't of Def.

340 F.Supp.3d 873

JIAHAO KUANG, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.

Case No. 18-cv-03698-JST

United States District Court, N.D. California.

Signed November 16, 2018

Colleen Carlton Smith, Latham & Watkins LLP, San Diego, CA, Peter Allen Wald, Latham & Watkins LLP, Christine Patricia Sun, ACLU Foundation of Northern California, San Francisco, CA, Sameer Ahmed, Jennifer Lee Pasquarella, Michael Bryan Kaufman, ACLU Foundation of Southern California, Los Angeles, CA, Caitlin Dahl, Megan Fitzpatrick, Sophia Louise Jane Mendez, Latham & Watkins LLP, Chicago, IL, Matthew C. Catalano, Latham & Watkins LLP, New York, NY, for Plaintiffs.

Stuart Justin Robinson, U.S. Department of Justice, San Francisco, CA, Nathan M. Swinton, Department of Justice Civil Division, Washington, DC, for Defendants.

ORDER GRANTING CLASS CERTIFICATION, DENYING MOTION TO DISMISS, AND GRANTING PRELIMINARY INJUNCTION

Re: ECF Nos. 21, 31, 42, 44

JON S. TIGAR, United States District JudgeBefore the Court are (1) Plaintiffs Jiahao Kuang and Deron Cooke's unopposed motion for class certification, ECF No. 31; (2) Plaintiffs' motion for a preliminary injunction, ECF No. 21; and (3) Defendants U.S. Department of Defense ("DoD") and Secretary of Defense James Mattis's motion to dismiss, ECF No. 42. The Court will grant the motion for class certification, deny the motion to dismiss, and grant the motion for preliminary injunction.

I. BACKGROUND

A. Factual Background¹

In October 2007, an eight-year-old Jiahao Kuang moved with his father from China to the United States. ECF No. 24 ¶ 2. Kuang entered the United States on a CR2 visa, which is issued to children of a foreign spouse who is married or soon to be married to a U.S. citizen. Id. A month later, Kuang obtained his green card pursuant to his father's marriage. Id. ¶ 3. Since then, Kuang has resided with his family in San Leandro, California, as a lawful permanent resident ("LPR") of the United States. Id. ¶¶ 3-4.

On July 18, 2017, during the summer before his senior year of high school, Kuang enlisted in the U.S. Navy for a four-year term of active service, followed by a four-year term of reserve duty. ECF No. 24-1 at 2. Kuang enlisted in the military because of desire to serve his country. ECF No. 24 ¶ 11. In addition, Kuang was motivated by the promise of financial assistance with his future college education and the understanding that he would be eligible to naturalize (i.e. become a U.S. citizen) once he entered basic training. Id. ¶¶ 8, 12.² Relying on these representations, Kuang renewed his green card rather than applying to become a citizen through the much lengthier civilian process. Id. ¶ 8.

Kuang's enlistment contract provided that he would be eligible to "ship out," or enter active service, on July 5, 2018. ECF No. 24 ¶ 9; ECF No. 24-1 at 5. Kuang was placed in a Delayed Entry Program ("DEP") in the interim and attended monthly DEP meetings. ECF No. 24 ¶ 10.

At the age of twenty-two, Deron Cooke successfully applied for a green card based on his father's U.S. citizenship. ECF No. 25 ¶ 2. In July 2015, Cooke emigrated from Jamaica to the United States; he has maintained LPR status since then. Id. Cooke lives with his wife, who is a U.S. citizen, in Trenton, New Jersey. Id. ¶ 4.

On August 3, 2017, Cooke enlisted in the U.S. Air Force for a four-year term of active service, followed by a four-year term of reserve duty. ECF No. 25 ¶ 7; ECF No. 25-1 at 2. Cooke enlisted in order to give back to the United States, develop his career skills, and carry on his family's tradition of service in the military and law enforcement. ECF No. 25 ¶ 9. Upon enlisting, Cooke was also informed that he would be eligible for an expedited naturalization process through the military. Id. ¶ 10.

Two weeks later, Cooke entered into an employment contract with the Air Force for an auto mechanic position, with a scheduled ship-out date of November 15, 2017. ECF No. 25 ¶ 8; ECF No. 25-2. Cooke was also placed in a DEP and began attending biweekly drills. ECF No. 25 ¶ 11.

B. Lawful Permanent Residents

In order to become LPRs, Kuang and Cooke had to undergo an application and screening process. As part of this process, LPR applicants must provide detailed information regarding their background (such as employment history and prior addresses), provide fingerprints, photos, and a signature, as well as participate in an in-person interview. See, e.g., I-485, Application to Register Permanent Residence or Adjust Status , U.S. Citizenship and Immigration Servs. (Apr. 11, 2018), https://www.uscis.gov/i-485; Green Card , U.S. Citizenship and Immigration Servs. (Feb. 22, 2018), https://www.uscis.gov/greencard; Fact Sheet: Immigration Security Checks—How and Why the Process Works , U.S. Dep't of Homeland Security (Apr. 25, 2006), https://www.uscis.gov/sites/default/files/files/pressrelease/security_checks_42506.pdf at 1-2 [hereinafter "Fact Sheet "].³ The Department of Homeland Security ("DHS") conducts an interagency background check for every applicants, as well as FBI fingerprint and name checks for many of those applicants, which reveal foreign criminal history. See Fact Sheet at 2.

LPR applicants may be denied for a multitude of reasons, including criminal history and security risk grounds. See 8 U.S.C. § 1182(a)(2), (3).

C. Military Enlistment and Accession Process

Kuang and Cooke are far from the only LPRs to enlist in the U.S. military. Approximately 5,000 LPRs do so every year. ECF No. 22-1 at 4. The process by which LPRs are enlisted and shipped into active military service ("accession") is governed by various statutory, regulatory, and DoD policy requirements. Because these requirements are at the heart of this dispute, the Court reviews them in some detail here.

First, Congress has enacted certain statutory requirements governing who may enlist in the military. See 10 U.S.C. § 504. "No person who is insane, intoxicated, or a deserter from an armed force, or who has been convicted of a felony, may be enlisted in any armed force," except that the relevant Secretary may authorize a meritorious exception for a deserter or convicted felon. Id. § 504(a).

Second, and most relevant here, Congress has established citizenship or residency requirements for military service. In general, "[a] person may be enlisted in any armed force only if the person is one of the following:" (1) "[a] national of the United States"; (2) "[a]n alien who is lawfully admitted for permanent residence"; or (3) "[a] person described in [the Department of Defense State Partnership Program, 10 U.S.C. § 341 ]" of compacts between the United States and the Federated States of Micronesia, the Republic of the Marshall Islands, and Palau. Id. § 504(b)(1).⁴

Congress also provided for individualized exceptions to these citizenship requirements. Section 504(b)(2) permits the relevant Secretary to authorize the enlistment of someone who does not fall into any of the categories of section 504(b)(1), if the Secretary determines that the "person possesses a critical skill or expertise – (A) that is vital to the national interest; and (B) that the person will use in the primary daily duties of that person as a member of the armed forces." Recruits enlisted under section 504(b)(2) are subject to additional procedures prior to entering active service, however. A person enlisted under section 504(b)(2) may not "report to initial training until after the Secretary concerned has completed all required background investigations and security and suitability screening as determined by the Secretary of Defense regarding that person." 10 U.S.C. § 504(b)(3)(A).⁵ These applications were processed pursuant to the Military Accessions Vital to the National Interest ("MAVNI") pilot program. See generally , Kirwa v. U.S. Dep't of Def. , 285 F.Supp.3d 257, 263 (D.D.C. 2018) ; ECF No. 57 at 146-48.

DoD has promulgated additional regulations governing the accessions process, including "standards for age, aptitude, citizenship, dependents, education, medical, character/conduct, physical fitness, and other disqualifying conditions, which are cause for non-qualification for military service." 32 C.F.R. § 66.1(b). Per DoD's regulations, its policy is to "[u]se common entrance qualification standards for enlistment, appointment, and induction into the Military Services," "[a]void inconsistencies and inequities based on ethnicity, gender, race, religion, or sexual orientation in the application of these standards by the Military Services," and "[j]udge the suitability of individuals to serve in the Military Services on the basis of their adaptability, potential to perform, and conduct." Id. § 66.4.

Concerning citizenship, DoD regulations incorporate the requirements of § 504(b). See § 66.6(b)(2)(i). DoD additionally requires that a service member be a U.S. citizen "[t]o be eligible for appointment as a commissioned officer," although the requirement may be waived on an individual basis, "but only for an original appointment in a grade below the grade of major or lieutenant commander." Id. § 66.6(b)(2)(ii).

DoD regulations also seek "to minimize entrance of persons who are likely to become disciplinary cases, security risks, or who are likely to disrupt good order, morale, and discipline." Id. § 66.6(b)(8). Consistent with this goal, the regulations disqualify applicants with certain criminal records, prior dishonorable conduct in military service, or who have "exhibited antisocial behavior or other traits of character that may render the applicant unfit for service." Id. § 66.6(b)(i)-(v).

Moreover, DoD generally deems ineligible an applicant who "[r]eceives an unfavorable final determination by the DoD Consolidated Adjudication Facility on a completed National Agency Check with Law and Credit (NACLC) or higher-level investigation, which is adjudicated to the National Security Standards in accordance with Executive Order 12968, during the accession process." Id. § 66.6...