United States District Court, D. Nevada
THOMAS X. KOTAB, Plaintiff,
v.
U.S. DEPARTMENT OF THE AIR FORCE, et al., Defendants.
ORDER
KENT
J. DAWSON UNITED STATES DISTRICT JUDGE
Presently
before the Court is Defendants’ Motion to Dismiss
(#11). Plaintiff filed a response in opposition (#15) to
which Defendants replied (#16). Defendants also filed Notice
of Supplemental Authority (#17) and Notice of New Screening
Policy (#18).
I.
Background
The
U.S. Department of Defense (“DoD” or “the
Department”) administers the enlistment of recruits
into the Armed Forces. Consistent with 10 U.S.C. § 504,
DoD permits the accession of recruits who meet certain
citizenship or residency requirements or otherwise possess a
critical skill or expertise. Among those permitted to enlist
are U.S. nationals; lawful permanent residents
(“LPRs”); and citizens from the Federated States
of Micronesia, the Republic of the Marshall Islands, and
Palau. Regardless of an enlistee’s citizenship or
residency, DoD conducts a background investigation to
determine whether he or she meets certain suitability and
security requirements and is otherwise qualified to serve.
Prior
to October 13, 2017, DoD permitted U.S. nationals and LPRs to
ship to basic training before completion of their background
investigations. However, DoD subsequently determined it is
not in the interest of the United States to permit
LPRs’ entry into service until their background
investigations are completed. Thus, on October 13, 2017, DoD
issued a memorandum (“LPR Memo”) providing that
suitability and security determinations for LPRs must be
finalized prior to these enlistees’ entry into service.
The LPR Memo primarily effects the timing of the
enlistee’s accession and not other terms on which LPRs
enter service.
Also on
October 13, 2017, DoD issued a memorandum pertaining to the
expedited path to U.S. citizenship applicable to foreign
enlistees (“Certification Memo”). Pursuant to the
Certification Memo, the armed service (Air Force Reserve in
this action) will not certify a service member’s
honorable service-a requirement for expedited
naturalization-until that member has completed at least 180
days of active duty service, including completion of basic
training. Such certification is made on USCIS Form N-426, a
requirement for naturalization based on military service.
See 8 U.S.C. § 1440(a).
On
October 22, 2018, Plaintiff, a LPR who seeks to enlist with
the Air Force, filed suit to challenge portions of the LPR
Memo and Certification Memo (collectively, the “October
13 Memos”). Asserting claims under the Fifth Amendment
to the U.S. Constitution and the Administrative Procedure Act
(“APA”), Plaintiff seeks both declaratory and
injunctive relief, including an order requiring revocation of
the October 13 Memos.[1]
II.
Statutory Background
A.
10 U.S.C. § 504
The
Constitution assigns to Congress and the President the
responsibility to establish the nation’s armed forces
and to employ them for the protection of the nation’s
security. U.S. Const. art. I, § 8, cls. 12-14 & art.
II, § 2, cl. 1. Consistent with this authority, Congress
has enacted legislation concerning who may, and who may not,
serve in the Armed Forces. With respect to citizenship and
residency, Congress has specified in 10 U.S.C. § 504(b)
that “[a]person may be enlisted in any armed force only
if the person is” (1) “[a] national of the United
States”; (2) “[a]n alien who is lawfully admitted
for permanent residence”; or (3) “[a] person
described in section 341” of compacts between the
United States and the Federated States of Micronesia, the
Republic of the Marshall Islands, and Palau.10 U.S.C. §
504(b). Beyond a prohibition against enlisting individuals
“who [are] insane, intoxicated, or a deserter from an
armed force, or who ha[ve]been convicted of a felony, ”
id.§ 504(a), Congress has provided no
additional requirements or guidance concerning the enlistment
of persons otherwise meeting the citizenship or residency
criteria, see id.
Section
504(b), however, represents only the most recent
Congressional pronouncement concerning who may serve in the
military. That policy has varied widely for at least 120
years. For example, in 1894, Congress approved legislation
providing that “in time of peace no person (except an
Indian) who is not a citizen of the United States, or who has
not made legal declaration of his intention to become a
citizen of the United States, or who cannot speak, read, and
write the English language, or who is over thirty years of
age, shall be enlisted for the first enlistment in the
Army.” An Act To Regulate Enlistments in the Army of
the United States, Chap. 179, § 2, 28 Stat. 215, 216
(1894). Approximately 50 years later, the Selective Service
Act of 1948 authorized the induction of male aliens. Pub. L.
No. 80-759, §§ 3-4, 62 Stat. 604, 605-606 (1948).
In enacting that statute, Congress considered, but ultimately
rejected, a proposal to authorize the temporary enlistment of
aliens. See Conf. Rep. 80-2438, 2012 (June 19,
1948). Shortly thereafter, Congress suspended the
aforementioned 1894 statute and provided for the temporary
enlistment of aliens into the Army, Pub. L.No. 81-597, 64
Stat. 316, 316 (1950). See also Pub. L. No. 84-149,
69 Stat. 297, 297 (1955); Pub. L. No. 85-116, 71 Stat. 311,
311 (1957).
In
1956, Congress passed comprehensive legislation regarding the
Armed Forces, including the criteria for enlistment. Pub. L.
No. 84-1028, 70A Stat. 1(1956). With respect to the Army, the
statute provided that “[i]n time of peace, no person
may be accepted for original enlistment in the Army unless he
is, or has made a legal declaration of intention to become, a
citizen of the United States.” Id.§
3253(c), 70A Stat. 178. The same restriction applied to the
Air Force. Id. § 8253(c), 70A Stat. 503. Five
years later, Congress amended these provisions to allow for
the enlistment of LPRs. Pub. L. No. 87-143, 75Stat. 364, 364
(1961). As reflected in the legislative history, Congress
enacted these provisions primarily to facilitate the
enlistment of those aliens who were inducted into the Armed
Forces and who “desire[d]to … make a career of
the military service, ” but “due to overseas
assignment or other circumstances [were] unable to comply
with the present law requiring an alien to show evidence or
inclination to become a citizen prior to acceptance for
enlistment.” H.R. Rep. No. 86-1776 at 2 (June 9, 1960);
see also Pub. L. No. 88-236, 77 Stat. 474, 474
(1963) (removing “declaration of intent”
requirement). Congress enacted the current version of 10
U.S.C. § 504 in 2006, making uniform the citizenship and
residency requirements across the Armed Forces. See
National Defense Authorization Act for Fiscal Year 2006, Pub.
L. No. 109-163 § 542, 119 Stat. 3136, 3253 (2006).
While
the value of LPRs’ service in the Armed Forces is
indisuputable, there are longstanding national security
concerns associated with permitting aliens to serve in the
military. In 1894, when a sufficient pool of potential
soldiers could be found among U.S. citizens, Congress
determined that “no consideration appears to justify
the enlistment of soldiers in the permanent Army of the
United States who may owe allegiance to some foreign and
possibly unfriendly power.” S. Rep. No. 53-151 at 3
(1894). And when Congress ultimately permitted aliens to
enlist, both the Legislative and Executive Branches ensured
that the military was conducting appropriate security
screenings to address such concerns. S. Rep. 84-132 at 2
(1955) (“The alien enlistment program … did not
go into effective operation on the date of the original
enactment because of the very considerable period of time
needed to perfect the screening arrangements and measures of
coordination between the various Government departments
concerned”); Hearing on S. 1137 Before the S. Comm. on
Armed Services, 84th Cong. at 7 (Mar. 31, 1955) (statement of
Maj. Gen. Donald P. Booth) (“In addition to the
emphasis on quality, great care has been taken to insure the
strictest possible security screening”); Hearing on
H.R. 8122 Before the S. Comm. on Armed Services2456(July 2,
1957) (statement of Col. George A. Aubrey) (“[W]e have
deliberately set high standards for enlistment under this
program-higher than the standard for enlistment of American
citizens … Only 1 applicant out of 9 has been able to
meet the rigid mental testing and security screen
criteria”). The record also indicates that the military
resolved these security concerns prior to permitting aliens
to enter into service. See Hearing on S. 1137 Before
the S. Comm. on Armed Services (Executive Session), 84th
Cong. 3 (Mar.31, 1955) (statement of Maj. Gen. Donald P.
Booth) (“We have very carefully screened these people
before we even permitted them to be enlisted”).
LPRs
can gain expedited citizenship under the provisions of 8
U.S.C. § 1439, which provides that LPRs who have at
least one year of honorable service in the military may be
naturalized without having to fulfill continuous residency
requirements. However, during a period of declared
hostilities, procedures for naturalization under 8 U.S.C.
§ 1440 take precedence over those under 8 U.S.C. §
1439. See DoD Instruction (“DoDI”)
5500.14.[2]Pursuant to § 1440, enlisted aliens
may apply for citizenship regardless of length of military
service, provided they have “served honorably.” 8
U.S.C. § 1440. “The executive department under
which such person served shall determine whether persons have
served honorably in an active-duty status, and whether
separation from such service was under honorable
conditions[.]”
Id.
B.
Regulatory Background
DoD has
promulgated regulations and issued directives regarding
certain aspects of a recruit’s entry into service.
See generally 32 C.F.R. Part 66. For example, DoD
regulations provide that it is the Department’s policy
to “(a) [u]se common entrance qualification standards
for enlistment, appointment, and induction into the Military
Services, ” and “(b)[a]void inconsistencies and
inequities based on ethnicity, gender, race, religion, or
sexual orientation in the application of these standards by
the Military Services.” Id. § 66.4. DoD
has also promulgated regulations concerning basic eligibility
criteria, including age, citizenship, education, aptitude,
medical standards, physical fitness, dependency status,
character and conduct, and history of drugs and alcohol.
Id. § 66.6(b). The criteria regarding
citizenship track 10 U.S.C. § 504. See 32
C.F.R. § 66.6(b)(2)(i) (“To be eligible for
Regular or Reserve enlistment, an individual must meet one of
the conditions outlined in 10 U.S.C. 504(b)[.]”).
As
relevant here, DoD’s enlistment regulation also
provides that “[t]he underlying purpose of these
enlistment, appointment, and induction standards is to
minimize entrance of persons who are likely to become . . .
security risks.” Id. § 66.6(b)(8). In
furtherance of that goal, a recruit will generally be deemed
ineligible to enlist if he or she “[r]eceives an
unfavorable final determination by the DoD Consolidated
Adjudication Facility on a completed National Agency Check
with Law and Credit (NACLC) or higher-level investigation,
which is adjudicated to the National Security Standards in
accordance with Executive Order 12968, during the accession
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