NIO et al v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY et al
MEMORANDUM OPINION granting class certification and appointing counsel. See Opinion and Accompanying Order, ECF No. 72 for details. Signed by Judge Ellen S. Huvelle on October 27, 2017. (lcesh1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KUSUMA NIO, et al.,
Civil Action No. 17-998 (ESH)
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, et al.,
Before the Court is plaintiffs’ amended motion for class certification. Plaintiffs are noncitizens serving in the United States Army’s Selected Reserve of the Ready Reserve who enlisted
under the United States Department of Defense’s Military Accessions Vital to the National
Interest (“MAVNI”) program and who have applied for naturalization pursuant to 8 U.S.C.
§ 1440, which provides an expedited path to citizenship for soldiers who serve during specified
periods of hostilities. They brought this action against (1) the United States Department of
Homeland Security (“DHS”) and its Acting Secretary, Elaine C. Duke, the United States Citizen
and Immigration Service (“USCIS”) and its Acting Director, James McCament (collectively
“DHS Defendants”); and (2) the United States Department of Defense (“DOD”) and its
Secretary, James Mattis (collectively “DOD Defendants”). Plaintiffs bring multiple claims under
the Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, seeking
mandamus, declaratory relief, and injunctive relief. Plaintiffs challenge (1) DHS’s/USCIS’s
decision to await DOD’s completion of the enhanced security screening of MAVNI enlistees
prior to their shipment to basic training or active-duty service (“DHS/USCIS Security Screening
Requirement”), see Nio v. United States Dep’t of Homeland Sec., No. 17-cv-998, 2017 WL
3917006, at *1–5 (D.D.C. Sept. 6, 2017), and (2) DOD’s October 13th Guidance that required
the recall and de-certification of USCIS Form N-426, which is a form necessary for a MAVNI’s
naturalization application under 8 U.S.C. § 1440. (Defs.’ Weekly Status Report, Oct. 13, 2017,
ECF No. 58, Ex. 1 (“10/13/2017 Guidance”) at 4.) Plaintiffs seek to certify a class, under
Federal Rule of Civil Procedure 23(b)(1) or (2), consisting of all persons who (1) enlisted in the
Selected Reserve, (2) have served honorably in the military “through participation in at least one
Selected Reserve drill period or in an active-duty status,” (3) have received a Form N-426
certifying their honorable service, (4) have submitted N-400 Applications for Naturalization to
USCIS, and (5) are being subjected to the DHS/USCIS Security Screening Requirement and
Section III of DOD’s October 13, 2017 Guidance regarding N-426s. (Pls.’ Am. Mot. For Class
Certification and Appointment of Class Counsel, Oct. 20, 2017, ECF No. 62, (“Class Mot.”) at
1.)1 For the reasons stated herein, the motion is granted with a modified class definition.
The factual background and procedural history in this case has been set out in detail in
the Court’s previous September 6, 2017 Memorandum Opinion denying plaintiffs’ request for a
preliminary injunction, Nio, 2017 WL 3917006, at *7–8, and the Court’s previous October 25,
2017 Memorandum Opinion in the related case of Kirwa v. Dep’t of Def., 17-cv-1793, ECF No.
29, granting those plaintiffs’ request for a preliminary injunction. The only factual development
Two of the named plaintiffs have been naturalized, but that does not render the claims of the
class moot. See Thorpe v. D.C., 916 F. Supp. 2d 65, 66 (D.D.C. 2013).
relevant to the class-action inquiry is DOD’s release of the October 13th Guidance. In that
document, DOD sets forth criteria in Section III as follows:
Decertification and Recertification.
The Military Department concerned will recall and de-certify the Form N-426 for
a Service Member described below:
The Service Member’s accession was prior to the date of this memorandum;
The Service Member has submitted to the USCIS a complete application for
naturalization that includes both a Form N-400 and a Form N-426, certifying the
member’s honorable service for purposes of naturalization, signed by a
representative of the Military Department concerned, and USCIS has not
adjudicated such application, or, if USCIS has granted such application, the
member has not yet naturalized; AND
3. The Service Member has not completed all applicable screening and suitability
requirements as set forth in Section 1, paragraph 2 above [the enhanced security
screening that is the subject of the DHS/USCIS Security Screening Requirement].
(10/13/2017 Guidance at 4.) Following issuance of the October 13th Guidance, this Court issued
an order granting plaintiffs leave to file an amended complaint, an amended motion for class
certification, and a motion for preliminary injunctive relief confined to the issue of DOD’s
position regarding N-426s outlined in Section III of the October 13th Guidance. (Order, October
18, 2017, ECF No. 60.) Having received the parties’ arguments on class certification at a
hearing on October 27, 2017, the Court is now ready to rule.
A plaintiff seeking class certification must meet the two requirements set forth in Federal
Rule of Civil Procedure 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011); Garcia v.
Johanns, 444 F.3d 625, 631 (D.C. Cir. 2006). First, under Rule 23(a), all class actions must
satisfy the four requirements of numerosity, commonality, typicality, and adequacy. Second, the
suit must fit into one of the three types of class actions outlined in Rule 23(b)(1), (b)(2), and
(b)(3). The Court finds that this suit satisfies the Rule 23(a) requirements and that a class should
be certified under Rule 23(b)(1)(A) and Rule 23(b)(2).
Plaintiffs define their proposed class as
all persons who:
(i) have enlisted in the Selected Reserve of the Ready Reserve (“Selected
Reserve”) through the Military Accessions Vital to the National Interest
(ii) have served honorably in the U.S. military through participation in at least one
Selected Reserve drill period or in an active-duty status;
(iii) have received from the U.S. military executed Form N-426s certifying their
honorable service as members of the Selected Reserve or in active-duty status;
(iv) have submitted N-400 Applications for Naturalization to United States
Citizenship and Immigration Services (“USCIS”); 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 United States Department of
Defense (“DoD”) N-426 policy review, (c) a DoD N-426 recall/decertification
policy, (d) enhanced DoD security screenings, (e) a DoD Consolidated
Adjudications Facility (“CAF”) adjudication, (f) a . . . national security
determination, and/or (g) a . . . military service suitability vetting or
(Class Mot. At 1–2.) The proposed class, at a minimum, consists of between 400 and 500
MAVNI soldiers. (Class Mot. at 2.) Because DOD’s October 13th Guidance applies different
standards to MAVNI enlistees who enlisted before Oct 13, 2017, the Court will limit the class to
those who enlisted before October 13, 2017.
RULE 23(a) REQUIREMENTS
Defendants contend that plaintiffs’ proposed class fails to exhibit commonality,
typicality, or adequacy. However, based on the record before the Court, it is satisfied that
plaintiffs meet all of Rule 23(a)’s requirements.
The numerosity inquiry turns on whether it would be too impracticable to join all
members of the class individually and litigate the claims of each claims member on an
individualized basis. Nat’l Veterans Legal Servs. Program v. United States, 235 F. Supp. 3d 32,
39 (D.D.C. 2017). Defendants do not dispute numerosity, and, based on the record before the
Court, it is satisfied that the proposed class is sufficiently numerous. Id. at 40; see also
McCarthy v. Kleindienst, 741 F.2d 1406, 1410 (D.C. Cir. 1984).
The commonality requirement is met when “there are questions of law or fact common to
the class.” Fed. R. Civ. P. 23(a)(2); see also Wal-Mart Stores, 564 U.S. at 350. Plaintiffs’
claims “must depend upon a common contention . . . of such a nature that it is capable of
classwide resolution—which means that determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in one stroke.” Id. Individuals in the
proposed class share key factual characteristics that make this case amenable to class-wide
resolution: All are members enlisted in the Selected Reserve through the MAVNI program, are
serving honorably, have a valid N-426, have an outstanding application for naturalization being
delayed by the DHS/USCIS Security Screening Requirement, and are subject to some or all of
DOD’s October 13th Guidance. Plaintiffs’ legal claims involve the validity of the DHS/USCIS
Security Screening Requirement and the October 13th Guidance, both of which are “uniform
polic[ies] or practice[s] that affect all class members.” DL v. District of Columbia, 713 F.3d
120, 128 (D.C. Cir. 2013); see also R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 181 (D.D.C. 2015).
Defendants assert that a multitude of factual differences prevent class certification:
active-duty enlistees will likely have passed DOD’s enhanced security screening, whereas
Selected Reservists may still have security screenings pending; some members of the class could
have improperly certified N-426s; DOD’s background checks involve individualized and factspecific inquiries; etc. Defendants also point out that plaintiffs’ unreasonable-delay claim under
5 U.S.C. § 706(1) involves fact-specific inquiries and class members may have naturalization
applications pending for varying amounts of time.
“However, ‘factual variations among the class members will not defeat the commonality
requirement, so long as a single aspect or feature of the claim is common to all proposed class
members.’” Encinas v. J.J. Drywall Corp., 265 F.R.D. 3, 8 (D.D.C. 2010) (citation omitted).
The Court acknowledges the factual variations among class members, but finds that they do not
impact the overarching questions common to the class: (1) Do defendants have the legal
authority to implement these policies and practices? (2) Did defendants implement their new
policies and practices in accordance with the strictures of the APA? and (3) Do these policies and
practices otherwise violate the Constitution, the APA, or other applicable law? As the Supreme
Court has explained, even a single common question can satisfy the commonality requirement.
See Wal-Mart Stores, 564 U.S. at 350, 359.2
Although class members’ naturalization applications may have applications with varying times
of delay that could influence the type of relief this Court could grant, courts routinely certify
classes in unreasonable-delay cases where a common issue exists regarding the legality of the
government’s policies and practices that serve as the reason for delay. Kaplan v. Chertoff, No.
06-cv-5304, 2008 WL 200108, at *7 (E.D. Pa. Jan. 24, 2008) (unpublished); Santillan v.
Ashcroft, No. C 04-2686, 2004 WL 2297990, at *10, 12 (N.D. Cal. Oct. 12, 2004) (unpublished).
As to typicality, defendants make the same arguments concerning factual variations that
the Court has already rejected. As defendants themselves acknowledge, the
commonality and typicality requirements of Rule 23(a) tend to merge. Both serve
as guideposts for determining whether under the particular circumstances
maintenance of a class action is economical and whether the named plaintiff’s
claim and the class claims are so interrelated that the interests of the class
members will be fairly and adequately protected in their absence.
Wal-Mart Stores, 564 U.S. at 349 n.5 (citation omitted). Furthermore,
[t]he facts and claims of each class member do not have to be identical to support
a finding of typicality; rather, “[t]ypicality refers to the nature of the claims of the
representative, not the individual characteristics of the plaintiff.” The typicality
requirement is satisfied “if each class member’s claim arises from the same course
of events that led to the claims of the representative parties and each class
member makes similar legal arguments to prove the defendant’s liability.”
Radosti v. Envision EMI, LLC, 717 F. Supp. 2d 37, 52 (D.D.C. 2010) (second alteration in
original) (internal citations omitted). Defendants are applying standardized, across-the-board
policies to the class. The Court is not adjudicating naturalization applications or making
individual N-426 determinations, it will merely decide (1) whether DHS/USCIS can postpone
adjudication of naturalization applications pending completion of DOD’s enhanced security
screening, and (2) whether DOD can apply its October 13th Guidance to recall or de-certify N426s that had previously been granted to members of the class.
Adequacy and Appointment of Class Counsel
“Two criteria for determining the adequacy of representation are generally recognized:
1) the named representative must not have antagonistic or conflicting interests with the unnamed
members of the class, and 2) the representative must appear able to vigorously prosecute the
interests of the class through qualified counsel.” Twelve John Does v. District of Columbia, 117
F.3d 571, 575 (D.C. Cir. 1997) (citation omitted). In addition, under Rule 23(g), a court must
consider the following factors in appointing class counsel:
(i) the work counsel has done in identifying or investigating potential claims in
the action; (ii) counsel’s experience in handling class actions, other complex
litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge
of the applicable law; and (iv) the resources that counsel will commit to
representing the class.
Fed. R. Civ. P. 23(g)(1). Defendants make two main arguments regarding adequacy and
appointment of class counsel.
First, defendants repeat their argument that factual differences between the named
plaintiffs and the proposed class defeat adequacy. This argument fails for the same reasons that
it does regarding commonality and typicality. See Wal-Mart Stores, 564 U.S. at 349 n.5; Harris
v. Koenig, 271 F.R.D. 383, 390–91 (D.D.C. 2010) (finding that the defendants’ argument about
differences between named plaintiffs and class members failed to defeat commonality, typicality,
or adequacy and noting that a district court has discretion to later consider creating subclasses
should a conflict arise).
Second, without any legal support, defendants boldly assert that plaintiffs’ counsel cannot
adequately represent the class because plaintiffs’ counsel has not demonstrated that they have
handled plaintiffs’ immigration matters in the class action context. Rule 23 does not require
prospective class counsel to have such specific experience. See Fed. R. Civ. P. 23, Committee
Notes on Rules—2003 Amendment (“In evaluating prospective class counsel, the court should
weigh all pertinent factors. No single factor should necessarily be determinative in a given
case.”) Plaintiffs’ counsel consists of a team of attorneys with experience in immigration law,
military law, complex civil litigation, federal court litigation, and class-actions—representing
both plaintiffs and defendants. (See 1st Baruch Decl., Aug. 11, 2017, ECF No. 30-3; 2d Baruch
Decl., Sept. 22, 2017, ECF No. 52-2.) Furthermore, plaintiffs’ counsel has contributed extensive
time and resources to representation of plaintiffs and the proposed class and are part of a large
global law firm that has committed to contributing extensive time and resources to representing
plaintiffs and the proposed class. (See 1st Baruch Decl., Aug. 11, 2017, ECF No. 30-3; 2d
Baruch Decl., Sept. 22, 2017, ECF No. 52-2.) Given counsel’s knowledge, experience,
resources, and commendable work already done in the case, the Court has no doubt that
plaintiffs’ counsel can adequately represent the class. See Encinas, 265 F.R.D. at 9; Vista
Healthplan, Inc. v. Warner Holdings Co. III, 246 F.R.D. 349, 358 (D.D.C. 2007); see also
Greenberg v. Colvin, 63 F. Supp. 3d 37, 46–47 (D.D.C. 2014).
RULE 23(b) REQUIREMENTS
Rule 23(b)(1)(A) permits a class action to proceed when “prosecuting separate actions by
or against individual class members would create a risk of: (A) inconsistent or varying
adjudications with respect to individual class members that would establish incompatible
standards of conduct for the party opposing the class . . .” Fed. R. Civ. P. 23(b)(1)(A). “Rule
23(b)(1)(A) certification is appropriate when the class seeks injunctive or declaratory relief to
change an alleged ongoing course of conduct that is either legal or illegal as to all members of
the class.” Adair v. England, 209 F.R.D. 5, 12 (D.D.C. 2002). In their opposition to plaintiffs’
initial motion for class certification and in their supplemental opposition to plaintiffs’ amended
class certification motion, defendants failed to respond to plaintiffs’ argument that the Court
should certify the proposed class under Rule 23(b)(1)(A), and thus, defendants have conceded
that class certification is appropriate under Rule 23(b)(1)(A). See Day v. D.C. Dep’t of
Consumer & Regulatory Affairs, 191 F. Supp. 2d 154, 159 (D.D.C. 2002); Bancoult v.
McNamara, 227 F. Supp. 2d 144, 149 (D.D.C. 2002).3 Upon review of the record, the Court is
also independently satisfied that plaintiffs’ proposed class meets the requirements of Rule
The Court is also satisfied that plaintiffs’ proposed class meets the requirements of Rule
23(b)(2). A class action may be maintained under Rule 23(b)(2) if “the party opposing the class
has acted or refused to act on grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R.
Civ. P. 23(b)(2). Rule 23(b)(2) applies “when a single injunction or declaratory judgment would
provide relief to each member of the class.” Wal-Mart Stores, 564 U.S. at 360. Defendants
object to certification under Rule 23(b)(2) on similar grounds to their objections regarding
commonality and typicality: there can be no final injunctive or declaratory relief appropriate for
the class as a whole regarding the DHS/USCIS Security Screening Requirement or DOD’s N-
In their supplemental opposition to plaintiffs’ amended class certification motion, defendants
make one passing reference to Rule 23(b)(1)(B):
[U]nless USCIS’s decision to wait to schedule a MAVNI soldier for an N-400
interview until after DoD completes enhanced background checks is illegal under
8 U.S.C. §1440, which it is not, this Court will, at the conclusion of this case,
ultimately deny class-wide relief on that claim. Such denial could impair a future
putative Nio class member’s ability to file his or her own lawsuit to challenge an
individualized delay based on his or her own circumstances. See Fed. R. Civ. P.
(Defs.’ Supp. Opp. to Pls.’ Mot. for Class Certification, Oct. 24, 2017, ECF No. 66, at 4–5.)
This argument is irrelevant because the Court is not certifying the class under Rule 23(b)(1)(B),
but even if it were relevant, the argument would be misguided because plaintiffs have
represented that “the individualized assessments or particular circumstances of Plaintiffs or
individual class members are not relevant here, [to plaintiffs’ unreasonable-delay claims] where
Plaintiffs are challenging Defendants’ standardized, across-the-board policies that generally
apply to the class.” (Reply in Support of Pls.’ Mot. for Class Certification and Appointment of
Class Counsel, Sept. 22, 2017, ECF No. 52, at 9 n.7; see also id. at 11 (“Because Plaintiffs are
seeking systemic relief, an individualized analysis of ‘every naturalization application’ is neither
appropriate nor necessary.”).)
426 policy because both involve individualized determinations about an enlistee’s fitness.
Again, plaintiffs are only challenging the application of standardized policies that generally
apply to the class: (1) Can USCIS hold applications pending the outcome of DOD’s screening?
and (2) Can DOD rescind N-426s based on its October 13th Guidance? Enjoining these broad
policies or declaring them unlawful is appropriate relief under Rule 23(b)(2).
For the reasons stated above the Court grants plaintiffs’ amended motion for class
certification and appointment of class counsel as further detailed in the Court’s accompanying
Order, ECF No. 72.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: October 27, 2017
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