Tiwari et al v. Mattis

Filing 122

ORDER granting Plaintiffs' 78 Second MOTION for Preliminary Injunction, by Judge Thomas S. Zilly. (Follows oral order of 3/21/2018, Dkt. 114 ) (SWT)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 KIRTI TIWARI, et al., 8 9 10 11 Plaintiffs, v. JAMES MATTIS, Secretary, U.S. Department of Defense, in his official capacity, 12 13 14 15 16 17 18 19 20 C17-242 TSZ ORDER 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. 21 22 23 ORDER - 1 1 Background 2 A. The MAVNI program recruits highly trained individuals pursuing professional careers to serve the military in specialized roles. 3 The Plaintiffs in this lawsuit are skilled professionals who abandoned educational 4 and professional aspirations as civilians to enlist in the U.S. Army through the MAVNI 5 program. Authorized in 2008, the MAVNI program expanded military recruiting to non6 U.S. citizens who: (1) are fully licensed health care professionals in critically short 7 specialties; or (2) speak one of 44 strategic languages. See December 2014 Enlisted 8 MAVNI Information Paper, docket no. 63–2, at 1. “The language portion of MAVNI 9 recruits highly qualified Soldiers to provide broadened language and cultural diversity to 10 the force.” Id. Through the MAVNI program, the Army recruited Plaintiffs from their 11 citizen careers to serve in these specialized roles. 12 The military achieved its objective of recruiting a diverse group of skilled 13 professionals with sought-after specialties. Plaintiff Amandeep Singh, for example, is a 14 native of India who came to the United States to attend a university. Declaration of 15 Amandeep Singh, docket no. 112–1 (“Singh Declaration”), at ¶ 2. He graduated from 16 Texas Tech University with a degree in electrical/electronic engineering and, prior to 17 enlisting in the Army, worked as an engineer in the wireless and radio frequency fields 18 for such companies as Blackberry, Ltd., Microsoft Corporation, and Honeywell 19 International, Inc. Id. at ¶ 3. With nearly a decade of professional experience, Mr. Singh 20 enlisted in the U.S. Army Reserve on July 23, 2015, through the MAVNI program. Id. at 21 ¶ 4. 22 23 ORDER - 2 1 Plaintiff Qi “Eva” Xiong is another highly qualified MAVNI recruit. Ms. Xiong is 2 a native of China who received a Doctor of Dental Surgery from the University of 3 Colorado. Declaration of Qi “Eva” Xiong, docket no. 105–2 (“Xiong Declaration”), at 4 ¶ 2. Since becoming a licensed board certified dentist, she has worked as a dentist in 5 both Illinois and Missouri. Id. Ms. Xiong enlisted in the U.S. Army Reserve on 6 November 10, 2015, to serve as a dentist through the MAVNI program. Id. at ¶¶ 3–4. 7 Despite enlisting as a dentist, Xiong has not been allowed to practice dentistry with the 8 Army because she has not received a security clearance. Id. 9 Valdeta Mehanja is a native of Kosovo who lived in extreme poverty before 10 fleeing to Germany as a child. Declaration of Valdeta Mehanja, docket no. 73–1 11 (“Mehanja Declaration”), at ¶ 3. After finishing high school, Mehanja worked for several 12 contractors in the IT function, obtained various IT certifications, and became experienced 13 with “ground-to-air and aircraft-to-aircraft communications . . . .” Mehanja Declaration 14 at ¶¶ 4–5. Using the money she had saved, she paid her way through Embry Riddle 15 University where she earned a degree in Aeronautical Science. Id. at ¶ 6. She received a 16 series of ratings and licenses while at Embry Riddle and began working as a flight 17 instructor during her third year. Id. at ¶¶ 7–8. Among other honors and accolades, 18 Mehanja was selected by Embry Riddle “to serve as Pilot-in-Command of the school’s 19 entry in the Women’s Air Race Classic, a four-day transcontinental flight competition.” 20 Id. at ¶ 8. She has logged approximately 2,000 hours of flight time. Id. 21 Mehanja enlisted in the Army through the MAVNI program on February 27, 2015. 22 During Basic Combat Training, she graduated with the highest female Army Physical 23 ORDER - 3 1 Test score in her platoon. Id. at ¶ 11. She finished Advanced Individual Training as a 2 UH-60 Blackhawk repairer with a 97% GPA and honors from the Aviation Logistics 3 School. Id. Her Battalion Commander stated that “[s]he is without a doubt one of the 4 most competent, caring, and professional leaders I have worked with in 22 years of 5 service.” Id. at ¶ 17. 6 Despite her qualifications, she too was told that she was not eligible to obtain a 7 security clearance and proceed with the necessary training and education to become a 8 Warrant Officer—the position she had hoped to attain when she enlisted. Id. at ¶¶ 18, 29. 9 Her goal is to become a Blackhawk Helicopter pilot. Id. at ¶ 12. Prior to initiating this 10 lawsuit and filing the Motion, Mehanja was unable to fly for the Army because she had 11 been denied a security clearance. Id. at ¶ 29; see also Declaration of Neil T. O’Donnell, 12 docket no. 90-3 (“O’Donnell Declaration”), at ¶ 8 (as of February 2, 2018, “Valdeta 13 Mehanja has not received either a final or an interim security clearance.”). 14 Like Mr. Singh, Ms. Xiong, and Ms. Mehanja, the other Plaintiffs in this lawsuit 15 enlisted in the Army, became naturalized citizens, and serve the United States by using 16 their specialized skills. Like all other soldiers serving in the Army, the MAVNI soldiers 17 must oftentimes complete additional specialized schooling—such as officer command 18 school or Warrant Officer school—before Defendant promotes them to their desired 19 roles. See, e.g., Singh Declaration, at ¶¶ 6–7; Xiong Declaration, at ¶ 6; Mehanja 20 Declaration, at ¶ 29. 21 To participate in these programs, MAVNI soldiers must obtain a security 22 clearance or “interim security clearance.” See, e.g., id. Sometimes Defendant enforces 23 ORDER - 4 1 this requirement before allowing the soldiers to enroll. Other times, MAVNI soldiers 2 have been permitted to attend OCS, complete all necessary coursework, but have then 3 been designated “security holdovers” pending a security clearance determination. See, 4 e.g., Declaration of Yang Zhidong, docket no.105–6 (“Zhidong Declaration”), 1 at ¶¶ 5–6. 5 Even though these soldiers have completed OCS, they have been relegated to various 6 administrative roles pending their security clearance determinations. For example, 7 Mr. Zhidong—who holds a Master’s Degree in International Economics from Johns 8 Hopkins—is an administrative assistant to an infantry battalion chaplain, where he 9 performs routine tasks such as planning events, logistics, and travel. Id. at ¶ 6. 10 Regardless of when Defendant requires a MAVNI soldier to obtain an interim 11 security clearance, the record shows that these interim security clearances are necessary 12 for MAVNI soldiers to progress in rank and serve in the specialized roles the Army 13 recruited them for. 14 B. 15 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 16 17 the MAVNI program to various counter intelligence policies designed to detect and 18 19 1 Mr. Zhidong is a native of China. Zhidong Declaration, at ¶ 2. Upon graduating college with a degree in Political Science, Mr. Zhidong worked as a research assistant before starting graduate school at the Johns Hopkins School of Advanced International Studies. Id. In May 2017, Mr. Zhidong completed his 21 Master’s Degree in International Economics and Western Hemisphere Studies. Id. Mr. Zhidong joined the Army in April 2015. Three years have passed and Defendant has continued to deny Mr. Zhidong a 22 security clearance. Id. at ¶¶ 3–8. 20 23 ORDER - 5 1 assess potential threats to national security. 2 These policies have delayed or outright 2 prevented MAVNI soldiers from obtaining security clearances which, in turn, has 3 precluded these soldiers from advancing their military careers and serving in their areas 4 of expertise. 5 Plaintiffs contest the constitutionality of these counter intelligence policies, which 6 Defendant does not impose on other soldiers who did not enlist through the MAVNI 7 program. Plaintiffs’ Third Amended Complaint, docket no. 63 (the “Complaint”), 8 specifically challenges these policies and asserts a single claim for declaratory and 9 injunctive relief “prohibiting Defendant from engaging in actions that discriminate 10 against naturalized U.S citizen MAVNI soldiers in violation of Plaintiffs’ . . . equal 11 protection rights as guaranteed by the Due Process clause of the Fifth Amendment of the 12 U.S. Constitution.” Id. at ¶¶ 289–90. 13 Plaintiffs’ Motion requests a preliminary injunction prohibiting Defendant “from 14 enforcing a blanket rule precluding naturalized U.S. citizens in the Military Accessions 15 Vital to National Interest (MAVNI) program from obtaining interim security 16 clearances.” Motion at 1. Defendant originated the policy at issue in a September 30, 17 2016, memorandum entitled Military Accessions Vital to the National Interest Pilot 18 19 2 The Court recognizes the importance of obtaining a security clearance and the need to process these requests with care. The Court also recognizes that the military should be afforded considerable deference 20 with regard to matters of security clearance determinations. See Dep’t of Navy v. Egan, 484 U.S. 518, 528 (1988). However, Plaintiffs make a strong showing that MAVNI soldiers are treated differently and Defendant has not applied the same policies to non-MAVNI soldiers. The Court is satisfied that the 21 injunctive relief Plaintiffs request, if properly tailored, will cure this unequal treatment without intruding on Defendant’s ability to make security clearance determinations using legitimate criteria equally applied 22 to all soldiers. 23 ORDER - 6 1 Program Extension.” Sept. 30, 2016, Memorandum from Peter Levine, docket no. 63–3 2 (the “Sept. 30, 2016, Memo”). The Sept. 30, 2016, Memo precluded MAVNI recruits 3 from being considered for interim security clearances until he or she had completed a first 4 enlistment—a limitation Defendant does not impose on other soldiers. Id. at 7 (“Security 5 Clearance Eligibility Requirements”); Motion at 4. 3 6 C. 7 The thrust of Defendant’s opposition to the Motion is that the challenged policy Defendant’s repeated attempts to revoke the challenged policy. 8 has since been revoked and, accordingly, Plaintiffs cannot satisfy the factors necessary 9 for a preliminary injunction. See, e.g., Defendant’s Opposition to Plaintiffs’ Motion for 10 Preliminary Injunction, docket no. 79, at 5–9. Similar to the approach it took in opposing 11 Plaintiffs’ first request for emergency relief, Defendant states that it withdrew this 12 challenged policy on June 21, 2017, by issuing a memorandum declaring that MAVNI 13 soldiers “may be considered for a security clearance under the same terms, conditions, 14 15 16 17 3 This is Plaintiffs’ second request for emergency relief from the Sept. 30, 2016, Memo. On April 5, 18 2017, Plaintiffs filed an initial Motion for Preliminary Injunction, docket no. 7, asking the Court to “prohibit[] Defendant from enforcing any guidance memoranda or other rules prohibiting U.S. Citizen 19 MAVNI soldiers as a class from applying for or receiving a security clearance in their initial term of enlistment.” On June 26, 2017, Plaintiffs voluntarily withdrew their first motion for preliminary 20 injunction, docket no. 8, because Plaintiffs had understood that Defendant had “partially withdrawn the policies and practices challenged in this litigation and the remaining issues in this case will therefore require further and different briefing.” Docket no. 48. On August 14, 2017, Plaintiffs filed their 21 Complaint, docket no. 63, adding additional plaintiffs who were still allegedly subject to Defendant’s discriminatory prohibition on applying for a security clearance. Plaintiffs argue that Defendant’s 22 discriminatory conduct continues in practice. 23 ORDER - 7 1 and criteria as any other U.S. citizen.” See Declaration of Christopher P. Arendt, docket 2 no. 50, ¶ 4, Exhibit 1 (June 21, 2017, Memorandum from A.M. Kurta (“Kurta Memo”)). 4 3 Defendant further argues that it has circulated subsequent guidance clarifying any 4 remaining confusion as to whether MAVNI soldiers are eligible for interim security 5 clearances. See, e.g., Defendant’s Supplemental Brief in Opposition to Plaintiffs’ Motion 6 for Preliminary Injunction, docket no. 103, at 1–2, 4–5. 5 Defendant therefore argues that 7 a preliminary injunction enjoining the challenged policy is unnecessary because the 8 policy no longer exists, either on its face or as applied. 6 9 10 4 The Kurta Memo is also attached as Exhibit 5 to the Third Amended Complaint, docket no. 63–5. The Kurta Memo does not distinguish between interim security clearances and other security clearances. 11 5 At oral argument, Defendant presented the Court with additional guidance dated March 18, 2018—three days before the hearing on March 21, 2018. That guidance provides in relevant part: 12 3.B.1. (U) ALL ARMY COMMANDERS WILL ENSURE THAT THEIR SECURITY MANAGERS UNDERSTAND THAT ALL SOLDIERS WHO ENLISTED UNDER THE MAVNI PILOT PROGRAM AND BECAME NATURALIZED UNITED STATES CITIZENS BASED ON THEIR HONORABLE MILITARY SERVICE WILL BE CONSIDERED FOR SECURITY CLEARANCE ELIGIBLITY UNDER THE SAME TERMS, CONDITIONS, AND CRITERIA AS ANY OTHER UNITED STATES CITIZEN. 13 14 15 3.B.2. (U) COMMANDERS WILL CONSIDER REQUESTS FOR INTERIM SECURITY CLEARANCE ELIGIBILITY FOR SOLDIERS WHO ENLISTED UNDER THE MAVNI PILOT PROGRAM AND WHO ARE UNITED STATES CITIZENS IN THE SAME MANNER AS THEY WOULD FOR ANY OTHER SOLDIER WHO IS A UNITED STATES CITIZEN. 16 17 18 See docket no. 118. 6 On December 19, 2017, the Court denied Defendant’s motion to dismiss which argued, among other 19 things, that Plaintiffs’ equal protection claim is moot. See docket no. 82. Defendant took a nearly identical position to the one it takes here; namely, that Defendant’s attempts to revoke the challenged 20 policy rendered any decision from this Court unnecessary. This Court concluded that Defendant’s voluntary cessation of the challenged policy alone was not enough to moot Plaintiffs’ claim: “The mere fact that [Defendant] has continued to revise the MAVNI program since this lawsuit was filed is 21 insufficient to show that the challenged conduct (improper enforcement of the questioned policies) could not reasonably be expected to recur. In addition, acting on the alleged unlawful MAVNI policies 22 challenged in this lawsuit is not the same as voluntarily withdrawing those policies.” Id. at 10–11. 23 ORDER - 8 1 In support of its position, Defendant also points to various instances in which 2 MAVNI soldiers have already received interim security clearances. See, e.g., January 22, 3 2018, Memorandum from Michael F. Randazzo, docket no. 90–6; Declaration of Mary 4 Dandridge, docket no. 104 (“Dandridge Declaration”) at ¶ 2; February 9, 2018, 5 Memorandum from Mary Dandridge, docket no. 104; see also O’Donnell Declaration, at 6 ¶ 6. Defendant argues that these soldiers would not have received interim security 7 clearances if the challenged policy was still in place. 7 8 D. 9 Plaintiffs provide evidence that Defendant is still applying the challenged policy in practice which has caused setbacks to their careers. 10 Notwithstanding Defendant’s argument that the challenged policy is no longer in 11 place, other MAVNI soldiers have still not received interim clearances and have 12 submitted evidence that they have recently been subjected to stricter screening standards 13 than other, non-MAVNI soldiers. See Xiong Declaration, at ¶ 7 (suggesting Defendant is 14 requiring a second CI interview); Singh Declaration, at ¶¶ 9–10 (stating that he was 15 denied an interim security clearance on March 5, 2018, as “I am still not eligible for an 16 interim clearance because I am a MAVNI.”). 17 18 19 7 Plaintiffs filed the Motion in November 2017 alleging two plaintiffs, Keigni di Satchou and Valdeta 20 Mehanja had been denied security clearances. Satchou, a native of Cameroon enlisted in the Army under the MAVNI program in January 2014 and has been a citizen since August 2014. Di Satchou Declaration, docket no. 80–2 at ¶¶ 2–3. His interim clearance was not approved until January 22, 2018. O’Donnell 21 Declaration, at ¶ 6. Similarly, Mehanja was unable to obtain an interim secret clearance until February 9, 2018. Dandridge Declaration, at ¶ 2. These facts strongly suggest the clearances were granted in response 22 to the Motion and corresponding allegations in the Complaint. 23 ORDER - 9 1 Regardless of whether their interim security clearance requests were ultimately 2 granted, the delays experienced by the MAVNI soldiers in securing their clearance 3 determinations have caused significant setbacks to their careers. See Xiong Declaration, 4 at ¶ 9 (“I enlisted in the Army through the MAVNI program going on two and a half 5 years ago. [Defendant’s] failure to issue me a clearance is preventing me from providing 6 the professional dental services the Army recruited me to provide in the first place; 7 wasting my time, skills and talents; [and] derailing my military career . . . .”); Declaration 8 of “Patrick” Dongwoo Kim, docket no. 105–5 (“Kim Declaration”) 8 (“I was supposed to 9 deploy with my United to the 595 Brigade in Kuwait on March 9, 2018. However, I was 10 told on February 15, 2018 that I cannot get a clearance because I am a MAVNI soldier in 11 my first term of enlistment and that I cannot deploy without a security clearance. . . . Not 12 deploying will adversely affect my military career, prevent me from serving my country, 13 and substantially and adversely affect my pay.”); Zhidong Declaration, at ¶¶ 7–8. (“I 14 inquired about receiving an interim clearance as many other officer candidates in my 15 class were commissioned with only an interim clearance. In late January or early 16 February 2018, I was orally told by phone . . . that I am not eligible for an interim 17 clearance because I am a MAVNI. . . . My lack of a security clearance and my resulting 18 inability to commission as an officer is directly harming my career; preventing me from 19 performing the responsibilities for the Army that I was trained for at OCS; underutilizing 20 21 8 Mr. Kim is a native of South Korea who came to the United States at age 16 to attend high school. He attended Texas A&M University for several years before leaving to enlist in the Army Reserve through 22 the MAVNI program. Kim Declaration at ¶ 2. 23 ORDER - 10 1 my skills and talents and willingness to work hard; and dramatically reducing my pay.”); 2 Singh Declaration, at ¶ 12 (“I also recently requested an interim clearance but I was told 3 that I am ineligible for an interim clearance. Obviously, my promotion to officer would 4 allow me to better use my talents and education to benefit the Army; would advance my 5 military career; and would substantially increase my earnings.”). 6 Valdeta Mehanja further describes the consequences of these setbacks as follows: 7 11 I had planned to make the Army my lifetime career. As the months and years roll by without a security clearance, it is less and less likely that I will remain in the Army. As time goes by, I continue to lose currency in all my flight ratings, which makes me less competitive for a Warrant Officer 153A position and less employable as a civilian pilot. I had expected the opportunity to go apply to Warrant Officer school and fly for the Army in my first term of enlistment. Now it appears I would have to re-enlist for another six years following two years of flight training, assuming I am ever allowed to apply for and be selected for flight school. 12 Mehanja Declaration, at ¶ 29. 13 Through the Motion, Plaintiffs seek the Court’s help in remedying these 8 9 10 14 impediments. The Motion seeks to require Defendant to grant MAVNI soldiers interim 15 security clearances on the same terms, conditions, and criteria as all other soldiers—so 16 that they have an equal opportunity to advance in their military careers in the same way 17 as all non-MAVNI soldiers. 18 Discussion 19 To succeed on a motion for preliminary injunctive relief, plaintiff bears the burden 20 of “establish[ing] that he is likely to succeed on the merits, that he is likely to suffer 21 irreparable harm in the absence of preliminary relief, that the balance of equities tips in 22 his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. 23 ORDER - 11 1 Council, Inc., 555 U.S. 7, 20 (2008). In the Ninth Circuit, these elements are balanced so 2 that “a preliminary injunction could issue where the likelihood of success is such that 3 ‘serious questions going to the merits were raised and the balance of hardships tips 4 sharply in [plaintiff’s] favor.’” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 5 1131 (9th Cir. 2011) (alteration in original) (quoting Clear Channel Outdoor, Inc. v. City 6 of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003)). 7 The Court is satisfied that Plaintiffs are likely to succeed on the merits of their 8 equal protection claim. Defendant’s position that the interim security policy no longer 9 exists is contrary to the evidence before the Court and the procedural history of this case. 10 Notwithstanding Defendant’s issuance of the Kurta Memo and follow-on guidance 11 purporting to revoke the challenged policy, Plaintiffs have presented evidence 12 demonstrating that, as recently as March 8, 2018, MAVNI soldiers have still been unable 13 to advance in their military careers because they cannot obtain interim security clearances 14 under the same terms, conditions, or criteria as non-MAVNI soldiers. 15 This evidence establishes that, even though Defendant may have attempted to 16 revoke the challenged policy, individual decision makers responsible for determining 17 interim security requests are still failing to consider requests from MAVNI soldiers under 18 the same terms, conditions, and criteria as non-MAVNI soldiers. Moreover, the record 19 before the Court shows a pattern in which Defendant purports to modify or revoke a 20 challenged policy but, subsequent to that modification or revocation, officials continue to 21 deny MAVNI soldiers interim clearances pursuant to the challenged policy. That 22 Defendant continues to treat MAVNI soldiers differently than all other soldiers seeking 23 ORDER - 12 1 interim security clearances—even though the MAVNI soldiers are otherwise qualified to 2 receive these clearances—is enough to demonstrate that Plaintiffs are likely to succeed on 3 the merits for purposes of the instant Motion. Ariz. Dream Act Coalition v. Brewer, 757 4 F.3d 1053, 1063–65 (9th Cir. 2014) (“Plaintiffs may prevail on their equal protection 5 claim by showing ‘that a class that is similarly situated has been treated disparately.’” 6 (quoting Christian Gospel Church, Inc. v. City and Cnty. of San Francisco, 896 F.2d 7 1221, 1225 (9th Cir. 1990)). 8 The unequal treatment experienced by the MAVNI soldiers and their failure to 9 receive interim security clearances on equal terms has caused, and will continue to cause, 10 irreparable harm. Many of these MAVNI soldiers are highly educated and experienced 11 professionals Defendant specifically recruited because of their specialties. Defendant 12 continues to limit these soldiers’ military careers by failing to process their security 13 clearance requests in the same way as requests from non-MAVNI peers. Among other 14 setbacks, this limitation has precluded MAVNI soldiers from performing in the roles they 15 were recruited for, prevented them from advancing in their careers, spoiled the currency 16 of their qualifications and training, and reduced the amount of pay they are eligible to 17 receive. 18 MAVNI soldiers who enlisted in the Army will continue to suffer irreparable harm 19 in the absence of a preliminary injunction enjoining Defendant from enforcing the 20 challenged policy. See Arizona Dream Act Coal., 757 F.3d at 1068 (“Setbacks early in 21 their careers are likely to haunt Plaintiffs for the rest of their lives.”); Enyart v. Nat’l 22 23 ORDER - 13 1 Conference of Bar Exam’rs, Inc., 630 F.3d 1153, 1165 (9th Cir. 2011) (“loss of 2 opportunity to pursue [one’s] chosen profession” constitutes irreparable harm). 3 The Court is further satisfied that serious questions going to the merits of this 4 dispute have been raised and that the balance of the equities strongly favors a preliminary 5 injunction. Defendant claims that it has already revoked the challenged policy. If true, 6 Defendant will be little harmed, if at all, in requiring its personnel to recognize and adopt 7 the revocation and consider interim security clearances from MAVNI soldier on the same 8 terms and conditions as all other soldiers. The scope of this relief is therefore necessarily 9 limited, as it will only apply to situations in which Defendant is still applying the 10 challenged policy. 11 MAVNI soldiers still seeking interim clearances will benefit from an injunction by 12 being considered for interim clearances under the same criteria imposed on all soldiers. 13 Assuming these soldiers meet the remaining, legitimate criteria to receive an interim 14 security clearance, they will be able to advance in their military careers and serve in the 15 specialized roles they were recruited for. Plaintiffs have met their burden of 16 demonstrating they are entitled to a preliminary injunction enjoining Defendant from 17 applying the challenged policy. 18 Conclusion 19 Plaintiffs have demonstrated they are entitled to a preliminary injunction. MAVNI 20 soldiers are still unable to receive interim security clearances under the same terms, 21 conditions, and criteria Defendant applies to non-MAVNI soldiers. 22 23 ORDER - 14 1 NOW THEREFORE: 2 Defendant is prohibited from enforcing any rule, policy, or guidance memoranda 3 preventing U.S. citizen MAVNI soldiers enlisted in the Army as a class from equal 4 treatment in connection with their applications for interim security clearances. Defendant 5 shall consider requests for interim security clearance eligibility for U.S. citizen MAVNI 6 soldiers in the same manner as it would for any other soldier who is a U.S. citizen. 7 IT IS SO ORDERED. 8 Dated this 11th day of April, 2018. 9 A 10 11 Thomas S. Zilly United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 ORDER - 15

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