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

ANGE SAMMA, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.

Civil Action No. 20-cv-1104 (ESH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

August 4, 2020

MEMORANDUM OPINION

Plaintiffs are noncitizens serving in the United States military. They filed this putative class action under the Administrative Procedure Act to challenge the United States Department of Defense's policy on issuing Certifications of Honorable Service (USCIS Form N-426), which is the form that noncitizens must file with United States Citizenship and Immigration Services in order to apply for naturalization based on military service pursuant to 8 U.S.C. § 1440. Before the Court are plaintiffs' motion for class certification and appointment of counsel, and cross-motions for summary judgment. This Memorandum Opinion, and the accompanying Order, address only the motion for class certification and appointment of counsel.

Plaintiffs seek certification pursuant to Federal Rule of Civil Procedure Rule 23(a), (b)(1)(A) and/or (b)(2). Defendants raise several valid objections, which require modification of the proposed class, but with those modifications, class certification is appropriate. Accordingly, for the reasons set forth herein, plaintiffs' motion for class certification and appointment of counsel will be granted in part and denied in part.¹

BACKGROUND

I. FACTUAL BACKGROUND

The N-426 Form ("Request for Certification of Military or Naval Service") is a form created by the United States Citizenship and Immigration Services ("USCIS"). It must be signed by a representative of the unit of the Armed Forces where the noncitizen is serving and submitted to USCIS along with the service member's application for naturalization. On October 13, 2017, the United States Department of Defense ("DOD") issued a formal guidance memorandum on the "Certification of Honorable Service for Members of the Selected Reserve of the Ready Reserve and Members of the Active Components of the Military or Naval Forces for Purposes of Naturalization" ("N-426 Policy"). (See AR 6-9.) The N-426 Policy requires noncitizens serving in the United States military to satisfy specific requirements before they are deemed eligible for a certified N-426. For service members whose enlistment or accession was on or after October 13, 2017, the N-426 Policy provides that:

(1) the power to certify an N-426 can either be exercised by the Secretary of the Military Department concerned or be delegated, by the Secretary, to a commissioned officer serving in the pay grade of O-6 or higher ("O-6 Requirement") (AR 6);(2) to obtain a certified N-426, noncitizen "Service Members in an Active Component" must have "successfully completed the basic training requirements of the armed force of which he/she is a member" and "[c]ompleted at least 180 consecutive days of active duty service, inclusive of the successful completion of basic training" ("Active Minimum Service Requirement") (AR 7 (Section I.3.a)); and

(3) to obtain a certified N-426, noncitizen "Service Members in the Selected Reserve of the Ready Reserve" must have "successfully completed the basic training requirements of the armed force of which he/she is a member" and "[c]ompleted at least one year of satisfactory service towards non-regular retirement in accordance with Department of Defense Instruction 1215.07, 'Service Credit for Non-Regular Retirement,' as a member of the Selected Reserve, inclusive of the member's successful completion of basic training" ("Reservist Minimum Service Requirement") (AR 8 (Section I.3.b)).²

On April 24, 2020, in response to a provision in the National Defense Authorization Act for Fiscal Year 2020 ("2020 NDAA"),³ DOD issued an update to the N-426 Policy that provides: "Upon receipt from a qualified applicant of [USCIS] Form N-426, 'Request for Certification of Military or Naval Service,' the certifying official will process it with priority and return it to the Service member concerned within 30-days of submission." (AR 1.) As represented by defense counsel,"[a]ccording to officials within DoD's Office of the Under Secretary for Personnel and Readiness, the 30-day time period contemplated by the April 24, 2020 policy update begins when the first person in the chain of command receives the N-426 request." (Defs.' 7/28/20 Supp. Br. at 1.)

II. PROCEDURAL BACKGROUND

On April 28, 2020, six named plaintiffs (Ange Samma, Abner Bouomo, Ahmad Isiaka, Michael Perez, Sumin Park, and Yu Min Lee), who are noncitizens serving in the United States Armed Forces, filed this putative class action, claiming that the O-6 Requirement and the Minimum Service Requirements in the N-426 Policy violate various provisions of the Administrative Procedure Act ("APA"). (See Compl., ECF No. 1; Am. Compl., ECF No. 24.)⁴ Of the six, five were serving in Active Components while one, Isiaka, was serving in the Reserves. As clarified by a later filing, plaintiffs specifically claim that the O-6 Requirement, the Active Minimum Service Requirement, and the Reservist Minimum Service Requirement are arbitrary and capricious, see 5 U.S.C. § 706(2)(A), and were enacted without notice and comment, see 5 U.S.C. § 553; 5 U.S.C. § 706(2)(D). (See Pls.' 7/2/20 Supp. Br. at 8.) With respect to the Active and Reservist Minimum Service Requirements, they further claim that they violate the APA because they are not in accordance with law, 5 U.S.C. § 706(2(A), are in excess of statutory jurisdiction, see 5 U.S.C. § 706(2)(C), and they result in unlawfully withheld and unreasonably delayed agency action, see 5 U.S.C. § 706(1). (See Pls.' 7/2/20 Supp. Br. at 8.)

Plaintiffs filed a motion for class certification and appointment of class counsel at the same time they filed their initial complaint, seeking to certify a class consisting of "All individuals who: (a) are non[]citizens serving honorably in the U.S. military; (b) have requested but not received a certified Form N-426; and (c) are not Selected Reserve MAVNIs covered by the Kirwa lawsuit."⁵ (Pls.' Class Cert. Mot. at 8.) Defendants responded and raised severalobjections to plaintiffs' proposed class definition. (See Defs.' Class Cert. Opp. at 2.) They also challenged the standing of five of the six named plaintiffs because, since the filing of the complaint, each had received a certified N-426. Finally, they argued that the one remaining plaintiff without an N-426 (Isiaka) lacked standing to challenge the O-6 requirement. (Id. at 4.) Plaintiffs filed a reply, acknowledging that the receipt of an N-426 mooted an individual plaintiff's claim (Pls.' Class Cert. Reply at 3 & n.2),⁶ but they also filed an amended complaint, adding two additional plaintiffs (Timotius Gunawan and Rafael Leal Machado), who were both serving in active components, had not satisfied the Minimum Service Requirements, and had not received an N-426. They proposed these two new plaintiffs, along with plaintiff Isiaka, as "suitable class representatives with live claims." (Pls.' Class Cert. Reply at 3.) Plaintiffs also proposed a modified class definition, deleting the word "honorably," to address one of defendants' objections.⁷ (See Am. Compl. ¶¶ 25, 26, 166; Pls.' Class Cert. Reply at 9 n.4.)

At the Court's request, defendants filed a surreply to address the effect of plaintiffs'adding two new plaintiffs in their amended complaint. Defendants acknowledged that there were now three plaintiffs with live claims, Isiaka, Gunawan and Machado, but they maintained that no plaintiff had standing to challenge the O-6 Requirement. (See Defs.' Surreply at 2.) The Court then posed additional questions to both plaintiffs and defendants, which were addressed in supplemental briefing. (See Defs.' 7/1/20 Supp. Br.; Pls.' 7/2/20 Supp. Br.; Defs.' 7/10/20 Supp. Br.) Plaintiffs' supplemental brief clarified that the class would only include individuals governed by Section I of the N-426 Policy and proposed that the class be divided into subclasses to account for the difference in requirements for individuals serving in active components and individuals serving in the Reserves. (See Pls.' 7/2/20 Supp. Br. at 1, 9.)

Accordingly, plaintiffs are seeking certification of a class consisting of "all individuals who: (a) are non[]citizens serving in the U.S. military [who are subject to Section I of the N-426 Policy]; (b) have requested but not received a certified Form N-426[;] and (c) are not Selected Reserve MAVNIs covered by the Kirwa lawsuit," (Pls.' Class Cert. Reply at 9 n.4), with two subclasses, one consisting of class members who "are lawful permanent residents [("LPRs")] serving in the Selected Reserve of the Ready Reserve," and the other consisting of class members (both LPRs and MAVNIs) who "are non[]citizens serving in an active [component] in the U.S. military."⁸ (Pls.' 7/2/20 Supp. Br. at 9.) Plaintiffs' proposed class representatives are the three plaintiffs who had not received their N-426s at the time the amended complaint was filed on June 8, 2020, with Isiaka representing the Reservist subclass and Gunawan and Machado representing the Active subclass.⁹

On July 16, 2020, the Court held argument on the motion for class certification and the cross-motions for summary judgment. During the argument, the Court tentatively ruled that it would grant the motion for class certification but that the class claims would be limited to a challenge to the Minimum Service Requirements because the Court was of the opinion that none of the proposed class representatives (or any named plaintiff) had standing to challenge the O-6 Requirement given the April 24, 2020 policy update. (See Motions Hr'g Tr. at 14, 81, July 16, 2020, ECF No. 37 ("7/16/20 Tr.")) However, plaintiffs were given leave to file a supplemental brief to further address that issue, which was pertinent to both class certification and summary judgment. (See 7/16/20 Tr. at 22.) After plaintiffs filed their brief, which included numerous exhibits and a...