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Kotab v. U.S. Department of Air Force

United States District Court, D. Nevada

September 25, 2019

THOMAS X. KOTAB, Plaintiff,
U.S. DEPARTMENT OF THE AIR FORCE, et al., Defendants.



         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[.]”


         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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