Case 2:17-cv-00242-TSZ Document 23 Filed 05/08/17 Page 1 of 32
1
The Honorable Thomas S. Zilley
2 3 4 5 6 7 8
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON KIRTI TIWARI, et al., No. 2:17-cv-00242-TSZ
9 Plaintiffs,
10 11
v.
12
JAMES MATTIS, Secretary, U.S. Department of Defense, in his official capacity,
DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
13 14
Defendants.
Noted For Consideration: May 8, 2017
15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
Case 2:17-cv-00242-TSZ Document 23 Filed 05/08/17 Page 2 of 32
TABLE OF CONTENTS
1 2
INTRODUCTION ........................................................................................................................ 1
3
BACKGROUND .......................................................................................................................... 2
4
I.
Overview of MAVNI program ................................................................................... 2
II.
Security screening of MAVNI recruits ....................................................................... 3
III.
The current MAVNI policy ......................................................................................... 6
8
IV.
Plaintiffs’ lawsuit ........................................................................................................ 7
9
V.
Events subsequent to the initiation of the instant lawsuit ........................................... 8
5 6 7
10 11
STANDARD OF REVIEW .......................................................................................................... 8 ARGUMENT ................................................................................................................................ 9
12 I. 13 14
PLAINTIFFS FAIL TO ESTABLISH IRREPARABLE HARM, AND THEIR MOTION SHOULD BE DENIED ON THIS BASIS ALONE ..................... 9 A. Because they are no longer subject to the challenged policy, Plaintiffs have obtained all of the relief that they seek in this case and their claims are now moot....................................................................................................... 10
15 16
B. Plaintiffs’ allegations of a constitutional violation are insufficient to demonstrate irreparable harm and they have not shown that they face any immediate, concrete harm in the absence of an injunction .......................... 13
17 18 19
II.
20
PLAINTIFFS ARE UNLIKELY TO SUCCEED ON THE MERITS ..................... 16 A. The prohibition on MAVNI first-term enlistees obtaining security clearances satisfies rational basis review ............................................................ 17
21
B. DoD’s management of its process for making security-clearance determinations is entitled to deference ............................................................... 21
22 23 24 25
III.
THE EQUITIES AND THE PUBLIC INTEREST TILT AGAINST PRELIMINARY INJUNCTIVE RELIEF ................................................................ 23
CONCLUSION........................................................................................................................... 24
26 27 28 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - i Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
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TABLE OF AUTHORITIES
1 2 3 4 5 6 7
CASES Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978) .................................................................................................. 9 Akina v. Hawaii, 835 F.3d 1003 (9th Cir. 2016) ................................................................................................ 11 Aleman v. Glickman, 217 F.3d 1191 (9th Cir. 2000) ................................................................................................ 20
8 9 10 11 12 13 14
Arcsoft, Inc. v. Cyberlink Corp., 153 F. Supp. 3d 1057 (N.D. Cal. 2015) .................................................................................. 10 Ariz. Dream Act Coal. v. Brewer, 945 F. Supp. 2d 1049 (D. Ariz. 2013) .................................................................................... 14 Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053 (9th Cir. 2014) ................................................................................................ 14 Boardman v. Pac. Seafood Grp., 822 F.3d 1011 (9th Cir. 2016) ................................................................................................ 10
15 16
Boustani v. Blackwell, 460 F. Supp. 2d 822 (N.D. Ohio 2006) ................................................................................... 19
17 18 19 20 21 22 23
Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668 (9th Cir. 1988) .................................................................................................. 15 Chiafalo v. Inslee, --- F. Supp. 3d ---, 2016 WL 7243752 (W.D. Wash. 2016) ................................................... 15 Coal. for Econ. Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997) .................................................................................................. 17 Dep’t of Navy v. Egan, 484 U.S. 518 (1988) ................................................................................................................ 23
24 25 26 27
Doe v. United States, 419 F.3d 1058 (9th Cir. 2005) .......................................................................................... 17, 18 Dorfmann v. Boozer, 414 F.2d 1168 (D.C. Cir. 1969) .............................................................................................. 16
28 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - ii Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
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Dorfmant v. Brown, 913 F.2d 1399 (9th Cir. 1990) ................................................................................................ 23
2 3 4 5 6 7 8
Faruki v. Rogers, 349 F. Supp. 723 (D.D.C. 1972) ............................................................................................. 19 Fernandez v. Georgia, 716 F. Supp. 1475 (M.D. Ga. 1989) ....................................................................................... 19 Gilligan v. Morgan, 413 U.S. 1 (1973) .................................................................................................................... 22 Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008 (9th Cir. 2012) ................................................................................................ 11
9 10 11 12 13 14 15
Hohe v. Casey, 868 F.2d 69 (3d Cir. 1989)...................................................................................................... 14 Huynh v. Carlucci, 679 F. Supp. 61 (D.D.C. 1988) ............................................................................................... 20 Johnson v. City of San Francisco, 2010 WL 3078635 (N.D. Cal. Aug. 5, 2010) ......................................................................... 14 Lofton v. Verizon Wireless (VAW) LLC, 586 Fed. App’x 420 (9th Cir. 2014) ....................................................................................... 13
16 17 18 19 20 21 22
Los Angeles Mem’l Coliseum Comm’n v. NFL, 634 F.2d 1197 (9th Cir. 1980) ................................................................................................ 10 Marin All. for Med. Marijuana v. Holder, 866 F. Supp. 2d 1142 (N.D. Cal. 2011) .................................................................................. 13 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) .................................................................................................. 13 Miller ex rel. NLRB v. Cal. Pac. Med. Ctr., 991 F.2d 536 (9th Cir. 1993) .............................................................................................. 9, 15
23 24 25 26 27 28
Munaf v. Geren, 553 U.S. 674 (2008) .................................................................................................................. 8 Nken v. Holder, 556 U.S. 418 (2009) ................................................................................................................ 24 Norman-Bloodsaw v. Lawrence Berkeley, Lab., 135 F.3d 1260 (9th Cir. 1998) ................................................................................................ 13 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - iii Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
Case 2:17-cv-00242-TSZ Document 23 Filed 05/08/17 Page 5 of 32
1 2 3 4 5
Painsolvers, Inc. v. State Farm Mut. Auto. Ins. Co., 685 F. Supp. 2d 1123 (D. Haw. 2010) .................................................................................... 10 Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 1150 (9th Cir. 2011) ................................................................................................ 10 Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997) ................................................................................................ 24
6 7 8 9 10 11 12
Romer v. Evans, 517 U.S. 620 (1996) ................................................................................................................ 17 Rosemere Neighborhood Ass’n v. EPA, 581 F.3d 1169 (9th Cir. 2009) ................................................................................................ 11 Schlesinger v. Ballard, 419 U.S. 498 (1975) ................................................................................................................ 22 Schneider v. Rusk, 377 U.S. 163 (1964) ................................................................................................................ 19
13 14 15 16 17 18 19 20 21
Siegel v. LePore, 234 F.3d 1163 (11th Cir. 2000) .............................................................................................. 14 Solorio v. United States, 483 U.S. 435 (1987) ................................................................................................................ 22 Thomas v. Mundell, 572 F.3d 756 (9th Cir. 2008) .................................................................................................. 12 United States v. Sahhar, 917 F.2d 1197 (9th Cir. 1990) ................................................................................................ 17 Winter v. NRDC, 555 U.S. 7 (2008) .......................................................................................................... 9, 10, 23
22 23 24 25
STATUTES 8 U.S.C. § 1439........................................................................................................................... 18 8 U.S.C. § 1440....................................................................................................................... 2, 18
26 27
U.S. CONSTITUTION
28 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - iv Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
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U.S. Const. art. I, § 8, cls. 12-14................................................................................................. 22
2
U.S. Const. art. II, § 2, cls. 1....................................................................................................... 22
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - v Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
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INTRODUCTION
1 2 3 4
In 2008, the Department of Defense (“DoD”) began the Military Accession Vital to National Interest (“MAVNI”) program to target the recruitment of foreign persons living in the United States without permanent residency status and who have specialized healthcare or foreign-
5 6
language skills. The program has proven to be mutually beneficial in several respects;
7
nevertheless, reviews of the MAVNI program in recent years have revealed certain security risks
8
specific to MAVNI soldiers and a need to vet recruits more thoroughly. DoD issued a policy
9
change in September 2016 designed to address these security concerns, which, among other things,
10
made MAVNI soldiers ineligible for security clearances during their first term of enlistment.
11 Plaintiffs, eight soldiers who enlisted in the Army through MAVNI, now challenge the new policy, 12 13
claiming that it discriminates against them on the basis of their national origin.
14
Nearly two months after initiating this lawsuit—and more than six months after the policy
15
change was first announced—Plaintiffs have moved for a preliminary injunction. This motion
16
should be denied. First and foremost, none of the eight Plaintiffs are subject to the policy any
17
longer; one Plaintiff is in his second term of enlistment, while the remaining seven were granted
18 19 20
waivers. These events have rendered Plaintiffs’ claims moot, thereby undermining their assertions about irreparable injury and their likelihood of prevailing on the merits of their claims. The
21
mootness of Plaintiffs’ claims alone warrants denial of their request for emergency relief and
22
counsels in favor of awaiting Defendant’s response to the Complaint in the normal course.
23 24
Even without waivers, Plaintiffs are still not entitled to a preliminary injunction. Plaintiffs have identified no immediate threat of harm, instead relying on speculation about the new policy’s
25 26
potential effects and their allegations of a constitutional violation, neither of which is a sufficient
27
basis for an irreparable-harm finding. Nor are Plaintiffs likely to succeed on the merits of their
28
claims. Because the policy draws a distinction between types of military recruits who become DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 1 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
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naturalized U.S. citizens as part of their enlistment, it does not discriminate on the basis of a
2
protected class and is therefore subject to rational basis review. The policy satisfies this level of
3 4
scrutiny because it rationally relates to DoD’s need to sufficiently vet soldiers who may pose security risks before granting them access to classified information. As a final matter, the equities
5 6
and public interest both weigh against an injunction, which would undermine DoD’s ability to
7
manage the MAVNI program in a manner that allows it to balance the need to access and promote
8
MAVNI soldiers while also ensuring that it is able to identify and mitigate any risks presented by
9
such soldiers prior to authorizing their ability to access classified information. For all of these
10
reasons, Plaintiffs’ motion should be denied.
11 BACKGROUND 12 13
I.
Overview of MAVNI program
14
MAVNI is a pilot program designed to expand the military recruiting pool to include
15
certain legal, non-immigrant aliens who are licensed health care professionals (HCPs) or who
16
possess critical foreign language skills (CFLs). Decl. of Christopher P. Arendt (Arendt Decl.) ¶ 5.
17
One of the key purposes of the program was to address a shortfall of HCPs in the military and for
18 19 20
the military to avail itself of the skill set offered by multi-lingual, culturally aware CFLs when conducting overseas operations. Id. The program was created pursuant to 8 U.S.C. § 1440, which
21
permits persons who are not legal permanent residents (LPRs) to enlist in the military during a
22
period of time designated by the President to be a time of “armed conflict with a hostile foreign
23
force.” Id. ¶ 4. On July 3, 2002, the President determined that the military is engaged in such an
24
armed conflict, and this order remains in effect today. Id. ¶ 4. The MAVNI program is overseen
25 26 27 28 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 2 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
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by the Office of the Undersecretary of Defense for Personnel and Readiness (USD(P&R)) and is
2
subject to periodic re-authorizations. Id. ¶ 5.
3 4
Persons enlisting in the military via the MAVNI program must meet several eligibility requirements. At the time of their enlistment, all MAVNI recruits must have resided in the United
5 6
States for a minimum of two years pursuant to any of the following: asylee or refugee status,
7
Temporary Protected Status, a grant of deferred action under the Deferred Action for Childhood
8
Arrivals program, or one of several non-immigrant visa categories. See Memorandum from Acting
9
Under Secretary of Defense to Secretary of Army, Navy, and Airforce at 4 (Sept. 30, 2016) (“Sept.
10
30, 2016 Memo”) (attached as Exhibit 1 to Arendt Decl.). In addition, recruits must have not had
11 any absence greater than ninety days from the United States during the two years prior to enlisting. 12 13
Id. HCPs who are recruited to fill medical positions for which the military has a critical shortfall
14
must meet all qualification criteria required for the particular medical specialty, including DoD
15
criteria for foreign-trained medical personnel, while CFLs must demonstrate proficiency in one or
16
more of forty-four designated foreign languages as well as an understanding of the associated
17
cultural background for each language. Id. at 4-5. Once they are deemed fit for military service
18 19 20
and are allowed to enlist, MAVNI recruits are able to apply for U.S. citizenship. Arendt Decl. ¶ 9. MAVNI recruits who are approved for citizenship are typically naturalized during their last week
21
of initial entry training (colloquially known as boot camp), which normally lasts ten weeks. Id.
22
The MAVNI program is the only program that permits recruits who are not LPRs to enlist and
23
gain a path to U.S. citizenship. Id.
24
II.
Security screening of MAVNI recruits
25 26
Like all military recruits, MAVNI soldiers are subject to a military-service determination
27
(also known as a “suitability-for-service determination”). Id. ¶ 10. The essential inquiry for this
28
determination is whether the recruit “is suitable under national security criteria for [military DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 3 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
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service]” and that “there is no reasonable basis for doubting the person’s loyalty to the Government
2
of the United States.” Id. While the scope of an investigation for a military-service determination
3 4
will vary depending on the type of information needed to make the determination, id. ¶ 14, certain features are common for all recruits. For example, all soldiers in their first term of enlistment,
5 6
including MAVNI soldiers, are subject to a National Agency Check (NAC), which consists of a
7
records checks of designated federal agencies that maintain record systems with information
8
relevant to a military-service determination. Id.
9 10
MAVNI recruits have typically been subject to higher levels of scrutiny for their militaryservice determinations, in light of intelligence reports, concerns about insider threats, and the
11 general lack of information about the recruits due to the fact that, as a group, they have spent 12 13
significant periods of their lives outside of the United States and have had extensive contact with
14
foreign persons. Id. ¶ 10. DoD has modified the security features of the MAVNI program since its
15
inception. In 2010, the Deputy Secretary of Defense issued a memorandum requiring that DoD
16
conduct a single-scope background investigation (SSBI) for all MAVNI recruits. Id. ¶ 19. SSBIs
17
involve a subject interview, a NAC, a local law enforcement agency check, credit checks,
18 19 20
developed character references, employment records checks, and employment checks for the ten most recent years of the subject’s life. Id. ¶ 16. The subject’s spouse, cohabitant, and family
21
members are also checked against relevant databases. Id. Although SSBIs are commonly used for
22
making security-clearance determinations, DoD determined that they were necessary for all
23
MAVNI recruits in light of reports that standard background investigations of MAVNI soldiers
24
were insufficient to address issues of concern, particularly those involving potential foreign
25 26
influence and foreign preference. Id. ¶ 20. Such issues are especially pronounced in the MAVNI
27
program because MAVNI recruits, as a class, have spent significantly less time in the United States
28
than other foreign-born recruits such as LPRs. Id. The 2010 memorandum further mandated that DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 4 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
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MAVNI recruits not be considered for security clearances or for positions in the intelligence
2
community “until they have served in the military and lived in the U.S. for a sufficient time period
3 4
whereby a thorough background investigation and monitoring can be conducted.” Id. ¶ 19. Additional security measures have been added to the MAVNI program in subsequent years.
5 6
In 2012, the Under Secretary of Defense for Intelligence issued a policy requiring that all MAVNI
7
applicants undergo a SSBI a part of their military-service determination and which also advised
8
the services that they were responsible for establishing comprehensive counterintelligence-focused
9
(CI) security reviews and ongoing monitoring programs for the duration of each MAVNI soldier’s
10
enlistment. Id. ¶ 21. Two years later, as part of the program’s reauthorization, DoD advised that
11 MAVNI recruits may be subject to a SSBI, National Intelligence Agency Check (NIAC), CI12 13 14
focused security review, and issue-oriented interview and/or issue-oriented polygraph as part of their military-service determination.1 Id.
15
Recent reviews of the MAVNI program have revealed that, despite the implementation of
16
screening measures between 2010 and 2014, the MAVNI program presented security risks to the
17
military. Specifically, reviews showed that some MAVNI enlistees may have engaged in pre-
18 19 20
accession criminal activity and/or pose a significant counterintelligence threat, including the following examples: some soldiers enlisted in the MAVNI program using fraudulent student visas;
21
some recruits attended and falsified transcripts from universities owned by a foreign national
22
security agency; one MAVNI recruit who entered the United States on a student visa professed to
23
support the 9/11 terrorists and said he would voluntarily help China in a crisis situation; and
24
another MAVNI applicant failed to list foreign contacts he had with Eastern Europe and Russia,
25 26 27 28
1 MAVNI soldiers, including several Plaintiffs, who have successfully completed a SSBI or a Tier 5 investigation receive a “favorable” notation in their personnel file. Arendt Decl. ¶ 18. This word does not indicate a favorable determination for access to classified information. Id. Before that determination can be made, additional steps, including potentially an updated background check or updated counterintelligence security interview, must be taken. Id.
DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 5 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
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despite the fact that his father manages the military department of a foreign factory and that his
2
brother-in-law worked for a foreign political party. Id. ¶¶ 22-23. Overall, the review demonstrated
3 4
that MAVNI recruits were not being sufficiently vetted at the accessions stage, in some instances being permitted to enter the program without completed background checks. Id.
5 6
III.
The current MAVNI policy
7
The MAVNI program underwent further policy revisions in September 2016. On
8
September 30, 2016, the USD(P&R) issued a memo (“the September 2016 policy”) renewing the
9
MAVNI program but making certain changes designed to address the security shortfalls that have
10
occurred in the program. Id. ¶ 24. Most relevant here, the September 2016 policy prohibits all
11 MAVNI recruits and soldiers from obtaining a security clearance in their first term of enlistment. 12 13
Id. This change was intended to ensure that the services did not inadvertently assign MAVNI
14
soldiers to jobs requiring security clearances before the soldiers were present in the United States
15
for a sufficient amount of time for investigators to address any gaps in investigative coverage as
16
well as any counterintelligence concerns. Id. A delay in making security-clearance determinations,
17
moreover, gives the military services sufficient time to identify any risks associated with MAVNI
18 19 20
soldiers and to conduct a complete counterintelligence-focused security review prior to their being in positions in which they have access to classified information. Id. ¶¶ 24-25. Such a review
21
includes the review of the results of a SSBI, the completion of a NIAC, and an issue-oriented
22
counterintelligence interview or issue-specific polygraph, as necessary. Id. ¶ 18 n.5. The
23
September 2016 policy applies only to MAVNI soldiers, based on DoD’s determination that they
24
collectively present unique security risks. Id. ¶¶ 10, 24-25. It does not apply to other recruits who
25 26
are naturalized outside of the MAVNI program. Id. ¶ 25.
27
DoD continues to conduct background investigations for all MAVNI soldiers. Id. ¶ 16.
28
Because MAVNI recruits commonly have significant foreign contacts and limited association with DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 6 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
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the United States, these investigations can take up to two years to complete. Id. Among other
2
things, investigators use this time to determine the extent of a MAVNI’s foreign contacts and
3 4
connections as well as to find alternative methods of inquiry to address any issues concerning the scope of the investigation. Id.
5 The changes to the MAVNI program announced in September 2016 were reiterated by an
6 7
Army memo dated January 6, 2017. Id. ¶ 26. More recently, in April 2017, the USD(P&R) issued
8
a memo outlining the September 2016 policy changes and emphasizing that they are “critical to
9
the sustainment of the MAVNI program and the welfare of its participants” in light of the
10
insufficiency of the prior military-service determination criteria. Id.
11 IV.
Plaintiffs’ lawsuit
12 Plaintiffs, eight2 soldiers who enlisted in the Army through the MAVNI program, filed the
13 14
instant lawsuit on February 16, 2017. Compl., ECF No. 1. Citing the changes to the MAVNI
15
program announced in the September 30, 2016 Memo, Plaintiffs contend that DoD is
16
discriminating against Plaintiffs on the basis of their national origin in violation of equal protection
17
under the Fifth Amendment. Id. ¶¶ 126-27. Having failed to properly serve Defendant with the
18 19 20
original complaint, Plaintiffs filed a First Amended Complaint on April 5, 2017. First Am. Compl., ECF No. 6. The First Amended Complaint brings the same equal protection claim as the original
21
complaint, id. ¶¶ 149-50, and identifies no additional or different allegedly unlawful conduct by
22
Defendant between the filing of the two complaints. Also on April 5, 2017, Plaintiffs filed a motion
23
for a preliminary injunction. Plaintiffs’ motion and their First Amended Complaint seek the same
24
relief: to enjoin Defendant from “prohibiting [MAVNI] soldiers from applying for or receiving a
25 26 27 2
28
The original complaint was brought by seven Plaintiffs, and Plaintiff Raj Chettri was added as a party in Plaintiffs’ First Amended Complaint. DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 7 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
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security clearance in their initial term of enlistment or otherwise penalizing3 U.S. citizens because
2
they entered the Armed Services and naturalized through the MAVNI program.” Compare First
3 4
Am. Compl. ¶ 151, with Mem. in Supp. of Mot. for Prelim. Inj. (“Pls.’ Mot.”) at 23, ECF No. 8. V.
Events subsequent to the initiation of the instant lawsuit
5 Two events relevant to this lawsuit have transpired since Plaintiffs filed their original
6 7
complaint. First, on February 21, 2017, Plaintiff Tiwari re-enlisted in the Army prior to the
8
expiration of his first term of enlistment. See First Am. Compl. ¶ 40; Tiwari Aff. ¶ 15, ECF No. 9.
9
Tiwari is now on his second term of enlistment. Id. Second, on April 24, 2017, the Department of
10
the Army requested from USD(P&R) that the seven other Plaintiffs (Plaintiffs Yang, Singh,
11 Makau, Mahanja, Sun, Zhang, and Chettri) be granted an exception to policy that would permit 12 13
them to apply for security clearance eligibility during their first term of enlistment. Arendt Decl.
14
¶ 29. This request was made in light of these Plaintiffs’ significant periods of residency and/or
15
military service. Id. On May 5, 2017, USD(P&R) granted the request. Id. Accordingly, there is no
16
prohibition on any of the Plaintiffs in this case, including those Plaintiffs still in their first term of
17
enlistment, from applying for a security clearance.
18 STANDARD OF REVIEW
19
Preliminary injunctive relief is “an extraordinary and drastic remedy[.]” Munaf v. Geren,
20 21
553 U.S. 674, 689 (2008). A party seeking such relief “must establish that [it] is likely to succeed
22
on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that
23
the balance of equities tips in [its] favor, and that [a preliminary injunction ] is in the public
24
interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008). Further, injunctive relief that would “deeply
25 26 3
27 28
Although both the First Amended Complaint and Plaintiffs’ motion request that the Court preclude Defendant from “otherwise penalizing” MAVNI soldiers, Plaintiffs have not alleged that any of Defendant’s conduct other than the security-clearance prohibition is unlawful, nor have they indicated in what other way MAVNI soldiers are supposedly being penalized. DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 8 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
Case 2:17-cv-00242-TSZ Document 23 Filed 05/08/17 Page 15 of 32
1
intrude[] into the core concerns of the executive branch”—such as national security—may be
2
awarded only where the plaintiff “make[s] an extraordinarily strong showing” as to each element.
3
Adams v. Vance, 570 F.2d 950, 954-55 (D.C. Cir. 1978).
4
ARGUMENT
5 Plaintiffs cannot satisfy any of the factors that warrant the issuance of a preliminary
6 7
injunction. First, the fact that Plaintiffs have now been afforded all of the relief that they seek in
8
this case undermines their claim of irreparable harm; even if that were not the case, Plaintiffs’
9
failure to identify an immediate threat of harm and their delay in seeking the injunction are more
10
than sufficient to do the same. Second, Plaintiffs are not likely to succeed on the merits of their
11 claims, both because those claims are now moot and also because the security-clearance 12 13
prohibition withstands rational basis review. Third and finally, Plaintiffs fail to identify a viable
14
reason as to why the public interest and balance of the equities favor injunctive relief here. For all
15
of these reasons, Plaintiffs’ motion should be denied.
16
I.
17
PLAINTIFFS FAIL TO ESTABLISH IRREPARABLE HARM, AND THEIR MOTION SHOULD BE DENIED ON THIS BASIS ALONE
18
Plaintiffs’ motion fails to demonstrate the existence of any harm, let alone irreparable
19
harm, and this failure is fatal to their request for injunctive relief. Satisfying the requirement of
20
immediate and irreparable harm is “crucial” to securing a preliminary injunction. Miller ex rel.
21 NLRB v. Cal. Pac. Med. Ctr., 991 F.2d 536, 543 (9th Cir. 1993). Given that a preliminary 22 23
injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the
24
plaintiff is entitled to such relief,” it should not issue “based only on a possibility of irreparable
25
harm.” Winter, 555 U.S. at 22. Instead, Plaintiffs must show that they are “likely to suffer
26
irreparable harm in the absence of preliminary relief.” Id. at 20.
27 28 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 9 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
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1
Critically, “[t]he threat of irreparable harm must . . . be ‘immediate.’” Arcsoft, Inc. v.
2
Cyberlink Corp., 153 F. Supp. 3d 1057, 1071 (N.D. Cal. 2015); see also Boardman v. Pac. Seafood
3 4
Grp., 822 F.3d 1011, 1022 (9th Cir. 2016) (“A plaintiff must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as
5 6
a prerequisite to preliminary injunctive relief.”) That injury, moreover, must be “real and
7
concrete” rather than merely “abstract.” See Los Angeles Mem’l Coliseum Comm’n v. NFL, 634
8
F.2d 1197, 1201 (9th Cir. 1980). It is a plaintiff’s burden to demonstrate cognizable irreparable
9
harm. Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th
10
Cir. 2011).
Plaintiffs cannot satisfy their burden of demonstrating irreparable harm in this case
11 because none of them are currently subject to the September 2016 policy being challenged: seven 12 13
of the Plaintiffs have been granted waivers from the policy, while the eighth (Tiwari) re-enlisted
14
in the Army and is now on his second term of enlistment, which falls outside the challenged policy.
15
But even if the Court were to consider Plaintiffs’ claims of irreparable harm, none of them are
16
sufficient to meet Plaintiffs’ burden to show the existence of an immediate, concrete threat of
17
injury. This failure to demonstrate irreparable harm is in and of itself a sufficient basis to deny
18 19 20
Plaintiffs’ motion, without consideration of the remaining preliminary-injunction factors. See Painsolvers, Inc. v. State Farm Mut. Auto. Ins. Co., 685 F. Supp. 2d 1123, 1139 (D. Haw. 2010)
21
(holding that a court need not consider the remaining elements of the preliminary-injunction
22
analysis where a plaintiff fails to demonstrate irreparable harm).
23 24
Because they are no longer subject to the challenged policy, Plaintiffs have obtained all of the relief that they seek in this case and their claims are now moot
25
None of the eight Plaintiffs are subject to the policy change announced in the September
26
30, 2016 Memo, and their claims are therefore moot. See Rosemere Neighborhood Ass’n v. EPA,
27
A.
581 F.3d 1169, 1172 (9th Cir. 2009) (noting that federal courts lack subject matter jurisdiction to
28 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 10 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
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1
consider moot claims). “A claim is moot if it has lost its character as a present, live controversy,”
2
id. at 1172-73, and where “events make it absolutely clear that the alleged [] wrongful behavior
3 4
could not reasonably be expected to recur,” Akina v. Hawaii, 835 F.3d 1003, 1010 (9th Cir. 2016). Given that all eight Plaintiffs are now eligible to seek security clearances, their claims for relief
5 6
from the September 2016 policy no longer present a live controversy. See Grand Canyon Trust v.
7
U.S. Bureau of Reclamation, 691 F.3d 1008, 1016-17 (9th Cir. 2012) (holding that a claim is moot
8
if “an event occurs that prevents the court from granting effective relief”).4
9 10
Seven of the eight Plaintiffs have been granted waivers from the prohibition on MAVNI soldiers in their first term of enlistment obtaining security clearances. On April 24, 2017, the
11 Department of the Army (“Army”) requested waivers from the policy on behalf of seven Plaintiffs 12 13
(Yang, Singh, Makau, Mehanja, Sun, Zhang, and Chettri). Upon reviewing the information of
14
these seven Plaintiffs, Army determined that waiver requests were appropriate “[b]ecause
15
plaintiffs have significant periods of residency [in the United States] and/or military service.”
16
Arendt Decl. ¶ 26; see also Arendt Decl. Ex. 8. The waiver requests were granted by DoD on May
17
5, 2017. Arendt Decl. ¶ 26; see also Arendt Decl. Ex. 9. These seven Plaintiffs are therefore no
18 19 20
longer subject to the September 2017 policy and thus have effectively been granted the relief they in both their motion for a preliminary injunction, see Pls.’ Mot. 23 (requesting “a preliminary
21
injunction precluding Defendant from enforcing any guidance memoranda or other rules
22
prohibiting U.S. [MAVNI] program soldiers as a class from applying for or receiving a security
23
clearance in their initial term of enlistment”), as well as in their First Amended Complaint, see
24
First Am. Compl. ¶¶ 149-51 (seeking same).5 Their claims are accordingly moot.
25 26 27 28
4
The voluntary cessation exception to the mootness doctrine does not apply here because the policy waivers are valid for the entire duration of the Plaintiffs’ first term of enlistment, see Arendt Decl. ¶ 29, so the allegedly wrongful behavior is not likely to recur, see Akina, 835 F.3d at 1010. 5 Although Plaintiffs request that the Court enjoin Defendant from prohibiting MAVNI recruits “as a class” from obtaining security clearances in their first term, Plaintiffs have not brought this class as a class action and have DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 11 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
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1
Plaintiff Tiwari’s claim is likewise moot because he is now in his second term of enlistment
2
and therefore no longer subject to the challenged policy. Tiwari re-enlisted for a second term in
3 4
February 2017, see First Am. Compl. ¶ 40; Tiwari Aff. ¶ 15; consequently, he is no longer subject to the prohibition against first-term MAVNI recruits from receiving security clearances, see
5 6
Memorandum from Department of the Army, Office of the Assistant Secretary, Manpower and
7
Reserve Affairs to Army Deputy Chiefs of Staff (Jan. 6, 2017) (Arendt Decl. Ex. 5) (“MAVNI
8
enlistees . . . are ineligible to reclassify, apply for officer producing programs or
9
positions/programs that require a security clearance during their initial term of enlistment.”).
10
Tiwari’s contention that he must wait until the full eight years of his first term of service are over,
11 or alternatively until he actually has a security clearance, to be able to apply to the Army Medical 12 13
Department Accession Board for a 71A Microbiologist position (his desired position), Tiwari Aff.
14
¶ 15, is based upon a misreading of the policy. As the Declaration of Lieutenant Colonel Megan
15
Stallings makes clear, pursuant to Army Regulation 601-280, by re-enlisting, Tiwari is no longer
16
on his first term of enlistment. Id. ¶ 6. There is accordingly no restriction, including any restriction
17
contained in the September 30, 2016 Memo, on his applying to the Microbiologist position, or any
18 19 20
other program for which he is eligible. Id. ¶¶ 8-9. Since the September 2016 policy does not apply to MAVNI soldiers who, like Tiwari, are
21
in their second term of enlistment, Tiwari’s claim—like those of the other seven Plaintiffs—is
22
moot. See Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1274 (9th Cir. 1998)
23
(noting that a case is moot where “subsequent events have made it absolutely clear that the
24
allegedly wrongful behavior cannot reasonably be expected to recur” and “interim relief or events
25 26 27 28
standing to seek relief only on behalf of themselves. See Thomas v. Mundell, 572 F.3d 756, 760 (9th Cir. 2009) (noting that to have standing, a plaintiff must have a “personal stake in the outcome of the controversy,” having suffered an injury that “affects a plaintiff in a personal and individual way,” rather than a “generalized grievance shared in substantially equal measure by all or a large class of citizens”). DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 12 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
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1
have completely and irrevocably eradicated the effects of the alleged violation”). It is plain that
2
Plaintiffs cannot show the existence of irreparable harm where they have already received the full
3 4
relief that they are seeking in this case. See Lofton v. Verizon Wireless (VAW) LLC, 586 F. App’x 420, 421-22 (9th Cir. 2014) (denying motion for preliminary injunction where defendant revised
5 6
policy and there was no likelihood that defendant would revert back to the prior policy).
8
Plaintiffs’ allegations of a constitutional violation are insufficient to demonstrate irreparable harm and they have not shown that they face any immediate, concrete harm in the absence of an injunction
9
Setting aside the fact that their claims are now moot, Plaintiffs have not met their burden
7
10
B.
of demonstrating the existence of an immediate, concrete harm that would befall them in the
11 absence of an injunction. Plaintiffs identify three bases for harm, none of which are sufficient for 12 13
enjoining the challenged policy.
14
First, Plaintiffs’ reliance on their pleading of a constitutional challenge to the MAVNI
15
program is insufficient to establish irreparable harm. Although the Ninth Circuit has held that
16
under certain circumstances the deprivation of a constitutional right can constitute irreparable
17
harm, see Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012), that holding is inapplicable
18 19 20
here given Plaintiffs’ failure to demonstrate a likelihood that they will prevail on the merits of their claims in this case, see Marin All. for Med. Marijuana v. Holder, 866 F. Supp. 2d 1142, 1160
21
(N.D. Cal. 2011) (noting that the presumption of harm for a constitutional violation “is inapposite
22
where, as here, the plaintiffs fail to demonstrate ‘a sufficient likelihood of success on the merits of
23
[their] constitutional claims to warrant the grant of a preliminary injunction’”). A finding of
24
irreparable harm cannot be justified on this basis.
25 26
Moreover, the mere allegation of a constitutional injury is not enough to establish the
27
showing of harm necessary for an injunction to issue. While courts have recognized that the
28
presumption of harm is strongest where a plaintiff alleges a First Amendment violation, they have DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 13 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
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1
not been willing to extend this principle so as to cover any and all constitutional claims. See Ariz.
2
Dream Act Coal. v. Brewer, 945 F. Supp. 2d 1049, 1073 (D. Ariz. 2013) (observing a lack of “legal
3 4
support for the proposition that all equal protection violations cause irreparable harm.”), rev’d on other grounds, 757 F.3d 1053 (9th Cir. 2014). Other courts have similarly recognized that there is
5 6
no per se rule that by alleging a constitutional injury a plaintiff automatically demonstrates
7
irreparable harm. See Hohe v. Casey, 868 F.2d 69, 73 (3d Cir. 1989) (“Constitutional harm is not
8
necessarily synonymous with the irreparable harm . . . .”); Siegel v. LePore, 234 F.3d 1163, 1177-
9
78 (11th Cir. 2000); Johnson v. City of San Francisco, NO. C09-05503, 2010 WL 3078635, at *3
10
(N.D. Cal. Aug. 5, 2010). The fact that Plaintiffs assert an equal protection violation does not
11 entitle them to a finding of irreparable harm. 12 13
Second, Plaintiffs’ reliance on representations made during the recruitment process is
14
equally insufficient to justify an irreparable-harm finding in this case. Plaintiffs allege that they
15
were told that, as MAVNI soldiers, they would be eligible to attend advanced programs and
16
schools, including Officer Candidate School, Green to Gold, and Warrant Officer Candidate
17
School. Pls.’ Mot. 21-22. But by Plaintiffs’ own account, any such statements made during the
18 19 20
recruiting process occurred one or more years ago and do not constitute a real and concrete threat necessitating immediate relief. Moreover, the MAVNI recruiting materials to which Plaintiffs cite
21
contain explicit disclaimers which place recruits on notice that statements made in the materials
22
do not entitle the recruits to any certain privileges or benefits. DoD MAVNI Information Paper at
23
1 (Sept. 2012), ECF No. 6-1 (“only the written information in your contract is legally binding”).
24
MAVNI recruits such as Plaintiffs are able to apply for programs such as Officer Candidate
25 26
School, Green to Gold, and Warrant Officer Candidate School only “[i]f [they] are eligible and
27
meet all the requirements.” Id. at 6. Notably, MAVNI recruits are expressly told that in order to
28
become an officer they “must [] be eligible to receive a security clearance.” Id. Plaintiffs were DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 14 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
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therefore put on notice that these opportunities would be available to them, provided that they met
2
all of the requirements for the particular job. These recruiting materials make no promises for
3 4
Plaintiffs’ career prospects, other than that they would be permitted to apply for positions for which they meet the necessary criteria.
5 6
Third, Plaintiffs’ concerns about their career prospects following the 2016 policy change
7
also falls short of demonstrating irreparable harm because they are speculative and fail to identify
8
any impending injury. See Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir.
9
1988) (“[A] plaintiff must demonstrate immediate threatened injury as a prerequisite to
10
preliminary injunctive relief.”); Chiafalo v. Inslee, --- F. Supp. 3d ---, 2016 WL 7243752, at *5
11 (W.D. Wash. 2016) (finding no irreparable harm where injury was “speculative at this juncture”). 12 13
Plaintiffs contend that the 2016 program change “will derail and probably ruin plaintiffs’ military
14
careers,” see Pls.’ Mot. 22, but Plaintiffs do not identify any immediate injury to justify their
15
injunction request. Tellingly, the policy change to which Plaintiffs object occurred in September
16
2016, with a second guidance letter issued in early January 2017, and Plaintiffs have identified
17
nothing subsequent that has purportedly caused them harm.6 It is therefore “unlikely that any
18 19 20 21
further harm will result while the parties await final action” in this Court. Miller ex rel NLRB, 991 F.2d at 544. Under these circumstances, no irreparable harm can be said to have occurred, and the Court may consider the claims in the normal course of the litigation.
22
Indeed, Plaintiffs’ lengthy delay in seeking preliminary relief undermines their contention
23
that the Court should exercise its equitable powers to enter an injunction immediately, instead of
24
proceeding in the normal course. Plaintiffs filed the original complaint in this case on February
25 26 27 28
6 See Aff. of Seung Yoon Yang ¶ 9, ECF No. 10 (identifying January 6, 2017 as most recent date when harm allegedly occurred); Aff. of Amandeep Singh ¶ 10, ECF No. 11 (late 2016); Aff. of Duncan Makau ¶ 8, ECF No. 12 (late 2016); Aff. of Valdeta Mehanja ¶¶ 14, 18, ECF No. 13 (late November 2016); Aff. of Loubin Sun ¶ 12, ECF No. 14 (September 2016); Aff. of Rui Zhang ¶¶ 9-10, ECF No. 15 (October 2016); Aff. of Raj Chettri ¶ 12, ECF No. 16, (October 2016).
DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 15 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
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1
16, 2017 yet waited until April 5, 2017 to seek an injunction—seven months after the DoD issued
2
the September 30, 2016 Memo, four months after Army issued subsequent guidance on January 6,
3 4
2017, and more than one and a half months after they initiated this litigation. Their “‘long delay before seeking a preliminary injunction implies a lack of urgency and irreparable harm.’” Id.
5 Rather than seeking to halt an immediate harm while the merits of the case proceed,
6 7
Plaintiffs’ motion effectively asks this Court to hasten its review of the merits of the case and grant
8
Plaintiffs the ultimate relief that they seek: an injunction of the 2016 policy change. But the
9
purpose of a preliminary injunction is not to expedite the entire case proceeding on the merits. See
10
Dorfmann v. Boozer, 414 F.2d 1168, 1173 n.13 (D.C. Cir. 1969) (“[A] preliminary injunction
11 should not work to give a party essentially the full relief he seeks on the merits.”). Taken together, 12 13
Plaintiffs’ delay in seeking an injunction, their failure to point to any sort of immediate, non-
14
speculative harm, and the mootness of their claims constitute an insurmountable hurdle for
15
Plaintiffs to demonstrate irreparable harm.
16
II.
17
PLAINTIFFS ARE UNLIKELY TO SUCCEED ON THE MERITS Even if Plaintiffs’ claims are not moot, they still have fallen short of carrying their burden
18 19 20
to show a likelihood of success on the merits of their equal protection claim. To the extent that the Court considers the issue in connection with Plaintiffs’ motion, the September 2016 policy does
21
not discriminate against a protected class and is therefore subject to rational basis review. Because
22
the policy is rationally related to DoD’s objective of ensuring that it is able to identify any and all
23
risks presented by MAVNI soldiers prior to their being in a position to access classified
24
information, it satisfies this deferential standard—a result that is in keeping with the deference
25 26
courts have historically shown the military, especially concerning questions of security clearances.
27
Plaintiffs’ inability to demonstrate a likelihood of success on the merits thus provides additional
28
grounds for denying their request for an injunction. DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 16 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
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1
A.
The prohibition on MAVNI first-term enlistees obtaining security clearances satisfies rational basis review
2 3
Although the Fifth Amendment, unlike the Fourteenth Amendment, lacks an equal
4
protection clause, courts have concluded that it nonetheless requires the federal government to
5
“provide persons with equal protection of the laws.” United States v. Sahhar, 917 F.2d 1197, 1200
6
n.3 (9th Cir. 1990). As under the Fourteenth Amendment, Fifth Amendment equal protection
7
“guarantees no substantive rights or liberties”; instead, “it entrenches a right to be free from
8 9 10
discrimination based on impermissible statutory classifications and other government action.” Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005).
11
When undertaking an equal protection analysis, courts are cognizant of “the practical
12
necessity that most [laws] classif[y] for one purpose or another, with resulting disadvantage to
13 14
various groups or persons.” Romer v. Evans, 517 U.S. 620, 631 (1996). The salient question is whether a law treats a person unequally “because of” his or her membership in a protected class
15 16
based on the person’s race, nationality, gender, or religion. Coal. for Econ. Equity v. Wilson, 122
17
F.3d 692, 701-02 (9th Cir. 1997) (en banc). “The first step in determining whether a law violates
18
the Equal Protection Clause is to identify the classification that it draws.” Id. at 702. “Where such
19
classification is not predicated on membership in a suspect or quasi-suspect class, the Constitution
20
requires only that the classification rest on grounds reasonably related to the achievement of any
21 legitimate governmental objective.” Doe, 419 F.3d at 1062. 22 23
In this case, rational basis review controls the Court’s examination of the MAVNI program
24
policy change. Pursuant to the September 30, 2016 Memo, no service member who entered the
25
military through the MAVNI program is eligible for a security clearance in their first term of
26
enlistment. Plaintiffs suggest that this policy is subject to strict scrutiny based on a comparison of
27
naturalized U.S. citizens who entered the military through the MAVNI program with native-born
28 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 17 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
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U.S. citizens. See Pls.’ Mot. 14. But Plaintiffs’ premise is incorrect because the September 2016
2
policy does not apply to all recruits who are naturalized as part of their military service. Rather,
3 4
MAVNI soldiers represent just a portion of soldiers who were naturalized following their enlistment. Under the Immigration and Nationality Act, non-U.S. citizens who have achieved LPR
5 6
status are able to become citizens via either “peacetime naturalization” if they have served
7
honorably for at least one year and have resided in the United States for five continuous years. See
8
8 U.S.C. § 1439(a). These requirements are relaxed during times in which the President has
9
designated the country to be engaged in armed conflict with a hostile foreign force. See 8 U.S.C.
10
§ 1440(a) (requiring either LPR status or physical presence in the United States, U.S. territories,
11 or U.S. non-commercial public vessel at time of enlistment). Prior to the inception of the MAVNI 12 13
program, for example, the Army launched the “09L Pilot Program,” in which LPRs would enlist
14
in the military to become interpreters and translators and then be able to invoke the benefits of
15
§ 1440 during the naturalization process. Arendt Decl. ¶ 6.
16 17
The MAVNI program was likewise created pursuant to DoD’s authority under § 1440 and is the only program that allows recruits who are not U.S. citizens or LPRs to enlist. See Arendt
18 19 20
Decl. ¶¶ 4, 7. Overall, MAVNI recruits comprise roughly ten percent of the foreign-born naturalized soldiers who have enlisted in the military since 2001. See id. ¶ 6. From 2001 through
21
September 2015, the U.S. Citizenship and Immigration Services has naturalized a total of 109,321
22
members of the military; of these, approximately 10,000 were recruited as part of the MAVNI
23
program and are potentially subject to the policy challenged in this case. Id. Critically, the
24
September 2016 policy applies only to those recruits who enter through the MAVNI program, not
25 26
to all soldiers who were naturalized following their enlistment. Arendt Decl. 22. And because it
27
applies only to MAVNI recruits, the September 2016 policy distinguishes not between native-born
28
U.S. citizens and foreign-born naturalized citizens, but rather between naturalized persons who DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 18 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
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obtained their citizenship from their military service (i.e., between MAVNI recruits and other
2
recruits who were naturalized as part of their enlistment).
3 4
This distinction is markedly different in nature than that in the cases upon which Plaintiffs rely, which concerned laws that applied to all naturalized citizens so as to treat them differently
5 6
than native-born citizens. See, e.g., Schneider v. Rusk, 377 U.S. 163 (1964) (striking down INA
7
provision that expatriates naturalized citizens who continuously reside in the country of their birth
8
for three years or more); Faruki v. Rogers, 349 F. Supp. 723 (D.D.C. 1972) (finding
9
unconstitutional provision of the Foreign Service Act that requires naturalized persons to be
10
citizens for ten years before being eligible to be foreign service officers); Boustani v. Blackwell,
11 460 F. Supp. 2d 822 (N.D. Ohio 2006) (enjoining Ohio voting law that required naturalized 12 13
persons to produce certificate of naturalization and declare oath that their identities match the
14
names of those on the certificates); Fernandez v. Georgia, 716 F. Supp. 1475 (M.D. Ga. 1989)
15
(striking down Georgia state law precluding naturalized citizens from being state troopers). Each
16
of these cases concerned laws and policies that discriminated against naturalized citizens because
17
they were born in a foreign country. By contrast, the September 2016 policy draws a distinction
18 19 20
between MAVNI soldiers and other naturalized recruits, a distinction that is based on the soldier’s participation in the MAVNI program itself, not on his or her country of origin.
21
For similar reasons, the MAVNI policy is also distinct from the regulation at issue in Huynh
22
v. Carlucci, which denied security clearances to all naturalized citizens from thirty specific
23
countries. 679 F. Supp. 61, 63 (D.D.C. 1988). The court examined that policy under strict scrutiny
24
because it targeted the plaintiffs based on their having been born in one of the listed countries. Id.
25 26
Unlike in Huynh, the policy being challenged here applies to recruits not because of their place of
27
birth but rather on account of his or her enlistment through the MAVNI program. Thus, German-
28
born recruits who enlisted via MAVNI would not be able to receive a security clearances during DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 19 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
Case 2:17-cv-00242-TSZ Document 23 Filed 05/08/17 Page 26 of 32
1
their first term of enlistment, but German-born recruits who were naturalized via a different
2
program would be so eligible. Because any line-drawing in which Defendant has engaged does
3 4
not distinguish citizens based on their national origin, rational basis review applies. Under rational basis review, a challenged law must be upheld “if there is a rational
5 6
relationship between the disparity of treatment and some legitimate governmental purpose.”
7
Aleman v. Glickman, 217 F.3d 1191, 1200 (9th Cir. 2000). The classification, moreover, “must be
8
upheld against an equal protection challenge if there is any reasonably conceivable state of facts
9
that could provide a rational basis for the classification.” Id. at 1201. “The government has no
10
obligation to produce evidence” in this regard; rather, “the burden is on the one attacking the
11 legislative arrangement to negative every conceivable basis which might support it.” Id. A court 12 13 14
is “compelled under rational-basis review to accept [the government’s] generalizations even when there is an imperfect fit between means and ends.” Id.
15
Defendant’s decision to prohibit MAVNI soldiers from being eligible for security
16
clearances in their first term of enlistment satisfies rational basis review. MAVNI recruits present
17
unique security concerns: there is typically less information readily available about them given
18 19 20
that many have spent a significant part of their lives outside of the United States and have extensive foreign contacts, and they also present risks about insider threats due to potential influence by or
21
preference for foreign governments, persons, or organizations. Arendt Decl. ¶¶ 10, 17, 20. For the
22
past several years, DoD has required heightened screening of MAVNI recruits as part of their
23
military-service determinations, but reviews of the MAVNI program revealed that these efforts
24
were not always successful at eliminating these risks at the initial vetting stage. Id. ¶¶ 19-23.
25 26 27
Consequently, DoD implemented the September 2016 policy to ensure that the military did not inadvertently assign MAVNI soldiers to positions requiring a security clearance before
28 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 20 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
Case 2:17-cv-00242-TSZ Document 23 Filed 05/08/17 Page 27 of 32
1
investigators had enough time to address any gaps in the background checks as well as any
2
concerns about counterintelligence risks posed by MAVNI soldiers. Id. ¶¶ 24-25.
3 4
The September 2016 policy fulfills this purpose by giving investigators sufficient time to conduct a complete counterintelligence-focused review prior to there being a determination about
5 6
security-clearance eligibility. Id. ¶ 25. Depending on the subject of the investigation, a
7
counterintelligence-focused review may include a review of the results of an SSBI or Tier 5
8
investigation, completion of a NIAC, and an issue-oriented counter-intelligence interview or issue-
9
specific polygraph. Id. ¶ 18 n.5. In any event, the distinction at issue in the September 2016 policy
10
is based not on national origin but on differences among different groups of naturalized citizens in
11 the military. See Arend Decl. ¶ 20. The delay in making MAVNI soldiers eligible for security 12 13
clearances is therefore rationally relates to DoD’s goal of ensuring that it is able to identify fully
14
any risks related to such soldiers prior to their being in a position in which they have access to
15
classified information. See id. ¶¶ 24-25. Because the September 2016 policy change satisfies
16
rational basis review, Plaintiffs have failed to demonstrate a likelihood of success on the merits of
17
their claim that the September 2016 policy violates equal protection under the Fifth Amendment.
18 19 20
B.
DoD’s management of its process for making security-clearance determinations is entitled to deference
Upholding the September 2016 policy under rational basis review is consistent with the
21 deference to which courts have traditionally afforded the military in matters concerning the 22 23
management of its internal affairs. Such deference is especially warranted given the Constitution’s
24
explicit grant of control over the composition of military troops to the political branches. See U.S.
25
Const. art. I, § 8, cls. 12–14 & art. II, § 2, cl. 1 (assigning to Congress and the President the
26
responsibility to establish the nation’s armed forces and to employ them for the protection of the
27
nation’s security). As the Supreme Court has noted, “it is the primary business of armies and navies
28 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 21 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
Case 2:17-cv-00242-TSZ Document 23 Filed 05/08/17 Page 28 of 32
1
to fight or be ready to fight wars should the occasion arise[, and] [t]he responsibility for
2
determining how best our Armed Forces shall attend to that business rests with Congress [] and
3 4
with the President.” Schlesinger v. Ballard, 419 U.S. 498, 510 (1975). Accordingly, Congress and the Executive are entitled to substantial deference in areas of military expertise, including where
5 6
service members’ constitutional rights are implicated. See, e.g., Solorio v. United States, 483 U.S.
7
435, 448 (1987) (“[W]e have adhered to this principle of deference in a variety of contexts where,
8
as here, the constitutional rights of servicemen were implicated.”); Gilligan v. Morgan, 413 U.S.
9
1, 10 (1973) (noting that, due to “[t]he complex subtle, and professional decisions as to the
10
composition, training, equipping, and control of a military force,” “it is difficult to conceive of an
11 area of governmental activity in which the courts have less competence”). Consistent with this 12 13 14
deferential approach, the Court should be reluctant to inject itself into the military’s personnel operations by enjoining a DoD policy that affects the composition of the Armed Forces.
15
Such deference is all the more warranted in this case, given that the challenged policy
16
concerns DoD’s decision-making process for making security-clearance determinations. It is well-
17
settled law that claims challenging an agency’s security clearance decisions are not subject to
18 19 20
judicial review. This deference stems from the fact that “nonexpert” bodies, such as courts, lack authority and competence to review such decisions, which are committed to the “broad discretion”
21
of the military based on its “predictive judgment” about whether allowing someone access to
22
classified information would be “clearly consistent with the interests of national security.” Dep’t
23
of Navy v. Egan, 484 U.S. 518, 529 (1988). It is not “reasonably possible” for an outside body to
24
review the substance of such judgments, or to determine “what constitutes an acceptable margin
25 26
of error in assessing the potential risk.” Id. at 529.
27
Given these concerns, Egan precludes judicial review of claims that would implicate the
28
merits of Executive Branch security clearance decisions. See, e.g., Dorfmont v. Brown, 913 F.2d DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 22 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
Case 2:17-cv-00242-TSZ Document 23 Filed 05/08/17 Page 29 of 32
1
1399, 1401 (9th Cir. 1990). Plaintiffs argue that Egan does not govern the outcome of this case
2
because they are not seeking review of individualized security-clearance determinations. See Pls.’
3 4
Mot. 19-21. Defendant does not contend otherwise, but simply points out that Plaintiffs’ request that this Court interfere with DoD’s security-clearance process and micromanage the timing of
5 6
when the military considers certain persons for clearances raises many of the same concerns
7
identified in Egan and its progeny. Just as courts have abstained from second-guessing the
8
predictive judgments of the military in making individual security-clearance determinations, so
9
too should this Court be reluctant to dictate the timing and manner by which DoD considers
10
applicants for such clearances, particularly in light of the fact that these decisions typically involve
11 making risk assessments for which the military, and not the courts, are best equipped. See Egan, 12 13
484 U.S. at 528. Consistent with the concerns underlying the Egan decision, as well as with the
14
deference normally afforded to the military more generally, the Court should reject Plaintiffs’
15
invitation to dictate DoD’s process for making security-clearance determinations.
16
III.
17
THE EQUITIES AND THE PUBLIC INTEREST TILT AGAINST PRELIMINARY INJUNCTIVE RELIEF
18
Finally, Plaintiffs have not met their burden of “establish[ing] . . . that the balance of
19
equities tips in [their] favor, and that an injunction is in the public interest.” Winter, 555 U.S. at
20
20. Where the Federal Government is the defendant, these factors “merge” into one. Nken v.
21 Holder, 556 U.S. 418, 435 (2009). Here, the preliminary relief being sought would harm the 22 23
military by impeding its “compelling interest in maintaining a strong military force.” Philips v.
24
Perry, 106 F.3d 1420, 1426 (9th Cir. 1997). An injunction would restrict DoD’s ability to address
25
security risks posed by the MAVNI program in a manner that DoD has judged necessary based on
26
its years of experience with the program. Arendt Decl. ¶ 27. Along with its many benefits, the
27
MAVNI program presents unique security threats, and an order requiring DoD to operate the
28 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 23 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
Case 2:17-cv-00242-TSZ Document 23 Filed 05/08/17 Page 30 of 32
1
program in a particular way would upset the balance DoD has determined is necessary between
2
accessing highly-skilled recruits in a timely fashion while simultaneously ensuring that the
3 4
program is not exploited by foreign powers. Id. Moreover, an injunction against enforcing the first-term security-clearance prohibition for
5 6
MAVNI soldiers would undercut DoD’s ability to fully vet and screen soldiers who are seeking to
7
gain access to classified information. Id. ¶ 28. DoD’s current policy stems from program reviews
8
that revealed a need to conduct additional screening measures for MAVNI soldiers because, as a
9
whole, they have spent significantly more time in foreign countries and have more foreign contacts
10
than do other soldiers. Id. Plaintiffs’ requested relief would result in DoD having to screen every
11 MAVNI recruit on an individualized basis, which in turn would likely either seriously tax DoD’s 12 13
ability to conduct the fulsome investigations necessary for these individuals (and increase the risk
14
that unsuitable persons gain access to classified information) or result in recruits not receiving
15
security clearances because an adequate background investigation could not be completed. Id. The
16
equities and public interest in this case strongly weigh against issuance of a preliminary injunction.
17
CONCLUSION
18 19
For the reasons set forth above, the Court should deny Plaintiffs’ motion.
20 21
DATED: May 8, 2017
22
Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General
23
ANTHONY J. COPPOLINO Deputy Assistant Director, Federal Programs Branch
24 25 26
/s/ Nathan M. Swinton NATHAN M. SWINTON Trial Attorney U.S. Department of Justice
27 28 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 24 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
Case 2:17-cv-00242-TSZ Document 23 Filed 05/08/17 Page 31 of 32
4
Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Tel: (202) 305-7667 Fax: (202) 616-8470 Email:
[email protected]
5
Attorneys for Defendant
1 2 3
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION - 25 Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
Case 2:17-cv-00242-TSZ Document 23 Filed 05/08/17 Page 32 of 32
1
CERTIFICATE OF SERVICE
2 3
I hereby certify that on May 8, 2017, I electronically filed the foregoing Opposition to
4
Plaintiff’s Motion for Preliminary Injunction using the Court’s CM/ECF system, causing a
5
notice of filing to be served upon all counsel of record.
6 7
Dated: May 8, 2017
/s/ Nathan M. Swinton NATHAN M. SWINTON
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Tiwari, et al. v. Mattis, Case No. 2:17-cv-00242-TSZ
U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-7667
