Court: District Court, W.D. Washington; January 30, 2019; Federal District Court
Thomas S. Zilly, United States District Judge, presided over a trial from November 26 to November 30, 2018, concerning plaintiffs who are seventeen U.S. citizens, former or current members of the Army, who enlisted through the Military Accessions Vital to the National Interest (MAVNI) program. This program, initiated in fiscal year 2009, aimed to recruit individuals proficient in critical foreign languages or with specialized healthcare training. Initially, the plaintiffs were not U.S. citizens but had valid legal statuses for MAVNI, and each later became naturalized citizens under 8 U.S.C. § 1440 after honorable service.
The parties acknowledged that plaintiffs face differential treatment compared to other citizens in two significant ways: (i) they are subjected to "continuous monitoring," which includes National Intelligence Agency Checks (NIAC) every two years, and (ii) they must have a NIAC performed within the last two years to qualify for security clearance, unlike other DoD-affiliated individuals who are exempt from such requirements without specific suspicion. This monitoring applies during their military service and after discharge when they work in civilian roles for the government or contractors. The NIAC requirements stem from a September 30, 2016, memorandum by then Acting Under Secretary of Defense Peter Levine, mandating continuous monitoring for all MAVNI-accessed personnel. If a NIAC reveals derogatory information, further counterintelligence interviews or polygraph examinations may be required, with refusal potentially resulting in military separation.
Plaintiffs claim that the Department of Defense's (DoD) National Interest Action Criteria (NIAC) requirements discriminate against them based on national origin and seek injunctive relief. The defendant argues that the DoD's treatment of citizens recruited through the Military Accessions Vital to the National Interest (MAVNI) program is constitutional, asserting that the disparity is based on enlistment method rather than national origin. Alternatively, if national origin is implicated, the DoD contends that its actions are necessary and precisely tailored to serve a compelling interest in national security. The Court must weigh the equal protection rights of qualified citizens in the military against the government's concerns regarding potential foreign infiltration of the MAVNI program.
The Court finds that the DoD's policies do discriminate based on national origin and fail to meet the strict scrutiny standard necessary for such classifications. Initially, plaintiffs sought broader relief regarding continuous monitoring and security clearance protocols for MAVNI personnel but narrowed their claims to the biennial NIAC requirements. The key legal questions include whether the disparate treatment constitutes unlawful discrimination and whether the policies meet the government’s national security interests. The Court determines that strict scrutiny applies because government actions differentiating by national origin are inherently suspect. To satisfy strict scrutiny, the government must demonstrate a close relationship between the classification and a compelling interest, that the classification is necessary to achieve that interest, and that the means employed are precisely tailored to serve that interest.
MAVNI personnel are required to undergo NIAC screening every two years as part of the "continuous monitoring" program or security clearance approval, which imposes greater burdens on foreign-born citizens compared to U.S.-born citizens, thereby constituting national origin discrimination. This parallels the Faruki v. Rogers case, where the court found that a provision of the Foreign Service Act discriminated against naturalized citizens by favoring those born as citizens. The court criticized any government policy that treats naturalized citizens as second-class based on their foreign origins.
The defendant contends that the heightened scrutiny faced by MAVNI recruits is due to national security concerns related to their enlistment method, not their national origin. However, this claim is undermined by the Department of Defense (DoD) implementing distinct policies for lawful permanent residents, which were introduced alongside the current monitoring program. These new protocols specifically delayed lawful permanent residents from entering military service until their background checks were completed, unlike their U.S. citizen counterparts who could begin training earlier.
The DoD’s rationale for this differential treatment—to enhance processing efficiency and security decision-making—indicates that national origin was indeed a factor. Thus, the court concludes that plaintiffs have adequately demonstrated that national origin was a motivating factor in the DoD's disparate treatment of MAVNI recruits.
Defendant contends that the NIAC requirements affecting MAVNI personnel are facially neutral, asserting that they do not apply to lawful permanent residents or naturalized citizens outside the MAVNI program, thus distinguishing based on military accession rather than national origin. The defendant argues that because the discrimination is not universal, it should not be subjected to strict scrutiny; however, this claim lacks legal support and contradicts equal protection principles. Citing Juarez v. Nw. Mut. Life Ins. Co. and Nyquist v. Mauclet, the document emphasizes that discrimination against a subset of a protected class does not exempt the defendant from scrutiny. The Huynh case is referenced, where a regulation affecting certain naturalized citizens was found to warrant strict scrutiny despite applying to only some members of that class. The Court concludes that the DoD's focus on MAVNI status acts as a proxy for national origin discrimination.
Additionally, the defendant argues that without proof of discriminatory intent, the NIAC components result only in a disproportionate impact and do not constitute an equal protection violation. This argument is deemed flawed, as it incorrectly assumes that the monitoring and security protocols are facially neutral. The court cites Mitchell v. Washington, asserting that strict scrutiny applies to government classifications based on race or national origin without the need for evidence of discriminatory animus. The court further clarifies that strict scrutiny is applicable even when differential treatment is perceived as benign and that a suspect classification does not need to be explicitly stated to invoke this level of review.
The United States Supreme Court invalidated Initiative 350 for reallocating governmental power in a way that hindered local efforts to racially integrate schools, despite the initiative not explicitly mentioning race. Similarly, the Department of Defense (DoD) implemented continuous monitoring and security clearance policies that, while not explicitly targeting individuals based on national origin, effectively discriminated against MAVNI (Military Accessions Vital to the National Interest) status, which correlates with being born outside the U.S. An internal DoD document from May 2017 indicated awareness of potential equal protection violations if naturalized MAVNI soldiers were subjected to heightened scrutiny without individualized assessments. This demonstrates the DoD's knowledge of the discriminatory implications of its actions.
The application of strict scrutiny is warranted because the policies in question affect all MAVNI enlistees who are U.S. citizens and were born outside the U.S., thus the policies are not facially neutral. Even if considered neutral, the defendant would not qualify for rational basis review. The Supreme Court has identified various evidentiary sources to analyze whether a seemingly neutral governmental action has discriminatory motives. In the Arlington Heights case, it was established that if discriminatory intent is a factor in a decision, judicial deference is revoked. Assessing improper animus requires thorough examination of both direct and circumstantial evidence, including the extent to which one protected group is impacted more than others, historical context, the sequence of events leading to the decision, deviations from standard procedures, and relevant legislative or administrative history.
The defendant failed to adequately engage with the necessary inquiries related to Arlington Heights in their trial brief and closing argument, leading the Court to reject their claim that the monitoring and security clearance policies deserve deference under rational basis review. Even if the Department of Defense (DoD) policy appears neutral, the Court emphasizes that an equal protection analysis must consider the Arlington Heights factors to determine if improper motives warrant strict scrutiny. The Court finds that evidence suggests national origin was a motivating factor in the DoD's actions regarding the MAVNI regulations, as indicated by the historical context of the biennial NIAC requirements and the timing of the Levine memorandum.
The Court concludes that the defendant bears the burden to demonstrate that the classification based on national origin serves a compelling governmental interest, is necessary, and is precisely tailored to achieve that interest. While the plaintiffs acknowledge national security as a compelling interest, they challenge the validity of the evidence presented by the defendant regarding threats to national security. The Chief of Personnel Security for the DoD, Roger Smith, mentioned fraudulent visa cases related to the MAVNI program, notably a sting operation involving a fake school. However, the Court finds little merit in claims that MAVNI recruits deceived by the U.S. government pose a national security threat.
Moreover, the Court scrutinizes the case of a MAVNI enlistee who expressed support for China and had troubling associations, noting that while such individuals may be concerning, the defendant failed to demonstrate how they could evade detection through MAVNI or non-MAVNI protocols. Thus, the defendant's argument regarding the potential for MAVNI soldiers to pose threats to national security is deemed unconvincing.
Defendant's witnesses at trial discussed Chaoqun Ji, a Chinese national involved with the MAVNI program, who was arrested after an investigation by the FBI dating back to 2015-2016. Although Ji's case raised concerns regarding foreign infiltration of the U.S. military, it was noted that he was unsuccessful in avoiding detection prior to enhanced screening measures initiated by the Levine memorandum. The witnesses confirmed that no MAVNI soldier who became a naturalized citizen faced charges or convictions for espionage or criminal offenses. The legal framework under 8 U.S.C. § 1440(c) indicates that citizenship can be revoked if an individual is separated from the military under dishonorable conditions before five years of service.
Defendant's reliance on classified materials related to MAVNI, including a 2017 DoD Inspector General review and other assessments, was noted, but these documents were not disclosed to plaintiffs or presented as evidence. Witnesses indicated these classified reports highlighted espionage threats within the MAVNI program. Stephanie Miller mentioned that the DoD had concerns about the adequacy of investigatory tools used on MAVNI enlistees.
The Court decided against requesting these classified documents for in camera review, citing issues with ex parte evidence and the potential for an incomplete picture of national security concerns. Ultimately, the Court concluded that even if the defendant established a compelling government interest, the challenged NIAC policies did not meet the strict scrutiny standard regarding necessity and precision. The Court agreed with plaintiffs that the "continuous monitoring" program and heightened security clearance protocols for MAVNI personnel were overbroad and under-inclusive, especially since plaintiffs had already undergone extensive investigations prior to their enlistment.
Defendant has not provided statistical evidence or a rationale for conducting biennial National Industrial Security Program (NIAC) screenings on the Military Accessions Vital to National Interest (MAVNI) population, suggesting that such scrutiny is unwarranted given that no MAVNI recruits have faced criminal charges or denaturalization. The defendant's approach of profiling MAVNI individuals as security risks without individualized justification is challenged, as it lacks a basis in evidence or a demonstration of heightened risk compared to other citizens. Testimony indicated that the Department of Defense (DoD) has not shown why it requires frequent NIAC screenings for all MAVNI personnel, while similar scrutiny is not applied to non-MAVNI members. A comparison of suitability rates between MAVNI and non-MAVNI individuals was deemed irrelevant due to insufficient data on specific MAVNI outcomes. The DoD's new policy treating lawful permanent residents (LPRs) as presumptive security risks, without evidence to support such a classification, was criticized as arbitrary and capricious. Overall, the defendant has failed to justify the imposition of additional security measures on MAVNI personnel, who have already met rigorous enlistment criteria and pose no greater security threat than other service members.
Defendant applies a unique level of monitoring, known as National Intelligence Agency Checks (NIAC), exclusively to individuals enlisted through the Military Accessions Vital to the National Interest (MAVNI) program, which is not extended to other military personnel with similar or greater foreign ties. The Court finds this practice under-inclusive and not adequately aligned with national security interests, as it imposes a NIAC every two years without individualized suspicion, indicating a lack of trust towards MAVNI soldiers. This persistent vetting is viewed as discriminatory treatment of United States citizens based on national origin, contradicting the assurances provided to enlistees that they would receive equal treatment and opportunities within the military. The Department of Defense (DoD) principles against discrimination further support this conclusion, emphasizing that the protocol unfairly targets citizens who serve under challenging conditions. The Court deems this practice unconstitutional and orders relief, specifying that all MAVNI enlistees must undergo continuous monitoring via the NIAC process, while those recruited through other means are exempt. It concludes that the DoD's use of MAVNI status as a suspect classification lacks a compelling justification for national security.
A permanent injunction has been issued by the Court, prohibiting the Defendant and the United States Department of Defense from mandating biennial National Intelligence Agency Checks for citizens affiliated with the DoD who accessed the Army through the Military Accessions Vital to the National Interest (MAVNI) program between February 12, 2012, and September 30, 2016, in the absence of individualized suspicion. The Clerk is instructed to enter judgment in accordance with this Order, notify all counsel of record, and close the case.
Testimony was provided in person by several individuals, including Dr. Naomi B. Verdugo and various sergeants and lieutenants, while others testified by deposition. Numerous exhibits from both Plaintiffs and the Defendant were admitted into evidence. The Court clarified that any misidentified legal conclusions or factual findings should be corrected accordingly. Dr. Verdugo testified regarding the MAVNI program, noting a list of 35 to 45 strategic foreign languages that changed annually. The Court found her testimony credible and denied the Defendant's motion to exclude her as an expert witness.
Citing constitutional and statutory provisions, the document reiterates that U.S. citizenship is conferred at birth or through naturalization as defined by Congress. It outlines that enlistment in the U.S. Armed Forces is generally restricted to U.S. nationals and lawful permanent residents, with specific provisions allowing for individuals with critical skills deemed vital to national interest to enlist, as established by the MAVNI program.
Eligible nonimmigrant aliens for the MAVNI program included those with specific visa designations (E, F, H, I, J, K, L, M, O, P, Q, R, S, T, TC, TD, TN, U, V). In FY 2014, the program expanded to include individuals granted deferred action under the DACA program. Individuals who served honorably in the military during designated conflict periods are eligible for naturalization. Security clearances are necessary for access to classified information, which is categorized into levels such as confidential, secret, and top secret, each with specific validity periods. Continuous monitoring applies to those who accessed the MAVNI program and later worked in defense contracting roles, regardless of their access to classified material. Discriminatory policies from the Levine memorandum, including restrictions on MAVNI soldiers obtaining security clearance until completing their first enlistment, were later reversed.
MAVNI personnel must complete eight years of military service, which can include a mix of active duty, reserve units, and individual ready reserve, based on their roles as language recruits or healthcare professionals. In February 2017, plaintiffs filed a lawsuit claiming that the ban on security clearances for MAVNI personnel during their initial enlistment harmed their military careers and constituted unlawful discrimination based on national origin. On June 21, 2017, while a preliminary injunction motion was pending, Under Secretary A.M. Kurta lifted the ban on security clearances for MAVNI recruits who had completed basic training and become naturalized citizens. However, the Court issued a preliminary injunction, finding evidence that MAVNI soldiers were not being treated equally in terms of interim security clearances. The Court ordered the Department of Defense to evaluate requests for interim security clearance for naturalized MAVNI personnel similarly to other U.S. citizens.
At trial, plaintiffs Lt. Tiwari, Sgt. Mehanja, Sgt. Singh, and Sgt. Yang testified about the negative impact of the Levine memorandum's restrictions on their military careers. Lt. Tiwari experienced an eight-month delay in his officer commissioning, affecting his promotion prospects. Sgt. Mehanja, despite her qualifications, was unable to pursue her ambition to become an Army officer and Black Hawk pilot due to the inability to obtain a security clearance before aging out of eligibility for Officer Candidate School. Sgt. Singh successfully completed the Special Forces Assessment but could not attend the qualification course due to the same clearance issues, leading him to decide against re-enlisting. Sgt. Yang faced obstacles in applying to both Officer Candidate School and the Green-to-Gold program but ultimately obtained a security clearance through the lawsuit and is now attending Columbia University on a ROTC scholarship.
Plaintiffs in this case do not seek retrospective relief despite experiencing setbacks due to discriminatory treatment under the Levine memorandum, which is now void. They initially sought attorney's fees and costs under the Equal Access to Justice Act but have waived all monetary claims, including expert witness fees. The Fifth Amendment's Due Process Clause encompasses a prohibition against unequal protection under the law, referencing relevant case law.
The plaintiffs hail from various countries, including Cameroon, China, India, Indonesia, Kenya, Korea, Kosovo, Nepal, the Philippines, and Vietnam. Many are multilingual, with most holding undergraduate degrees and some possessing graduate-level education. These characteristics align with statistics indicating that MAVNI (Military Accessions Vital to the National Interest) enlistees generally exhibit higher education levels, better language proficiency, and lower attrition rates compared to other recruits.
All plaintiffs enlisted after a memorandum issued on February 16, 2012, mandating that MAVNI applicants undergo a comprehensive security background check known as a Tier 5 Background Investigation. The results of this investigation were crucial for determining military service suitability, and failure to obtain a favorable assessment disqualified MAVNI recruits from enlistment or continued service.
While plaintiffs did not contest the intensified screening protocols they faced during enlistment, they raised issues regarding two specific policies: (1) the requirement for a Passive Analytical CI and Security Assessment (PACSA) for incumbent MAVNI soldiers, as mandated by a memorandum on October 13, 2017, and (2) the necessity for a Counterintelligence-Focused Security Review (CIFSR) for all MAVNI-affiliated individuals seeking security clearance. These assessments are not routinely applied to non-MAVNI personnel, even those with high-level security clearances.
Roger Smith, Chief of Personnel Security for the DoD, and Joseph Simon, Senior Counterintelligence Advisor to the Army, testified that all MAVNI personnel underwent completed PACSAs and/or CIFSRs. During closing arguments, plaintiffs' counsel acknowledged that the issue of the constitutionality of requiring a PACSA for continuous monitoring or a CIFSR for MAVNI enlistees seeking security clearances is now moot, as the only remaining point of contention is the NIAC. The Court has merged its analysis of the continuous monitoring program and security clearance protocols, both of which require a biennial NIAC.
Defendant argues that all but seven plaintiffs' claims are moot due to having obtained "top secret/SCI" or "secret" clearances, with two claims deemed unripe as no security clearance request has been made for those plaintiffs. However, these arguments do not negate standing, as security clearances can expire and require renewal, and some plaintiffs may soon need higher clearances or may seek clearance in the future.
The plaintiffs maintain a "reasonable expectation" of being subjected to the NIAC policy again, establishing a "case or controversy" for Article III jurisdiction under the "capable of repetition yet evading review" doctrine. At trial, four plaintiffs were still waiting on security clearance results, and the defendant did not dispute the claim that MAVNI personnel should not face an additional NIAC when seeking security clearance.
In assessing the constitutionality of the classification under rational basis review, the regulation must bear a rational relationship to a legitimate governmental purpose and not be enacted for arbitrary reasons. The government's actions receive a strong presumption of validity, but the review is not without scrutiny.
Relevant government interests must align with the authority to implement and logically relate to the stated purpose. The defendant's argument mirrors a stance taken by the Indiana Governor regarding the exclusion of Syrian refugees, which the Seventh Circuit deemed discriminatory based on nationality, akin to racial discrimination. In Exodus Refugee Immigration, Inc. v. Pence, the court highlighted that fear of a group does not negate discriminatory intent. The defendant's citation of McDaniels v. Stewart is incorrect; in McDaniels, the court found insufficient links between defendants and the alleged discrimination, whereas here, the Secretary of Defense acknowledges his role as the proper defendant. Additionally, the reference to Hunt v. Cromartie misapplies the strict scrutiny standard. The Supreme Court determined that strict scrutiny applies to explicit suspect classifications without needing to examine legislative intent. Hunt involved a facially neutral redistricting plan, unlike the current matter, which has been fully tried, allowing the Court to resolve all factual questions. Testimony from Ms. Miller during the trial indicated awareness of potential constitutional concerns regarding "standardized extraordinary screenings" of MAVNI soldiers, yet she did not characterize it as a legal issue.
The Court finds the testimony presented to be lacking in candor, particularly regarding the "significant" legal constraints associated with the MAVNI program, which allowed a limited number of recruits into the Army annually. Enrollment caps remained stable from FYs 2009-2010, increased from FYs 2013-2016, and decreased in FY 2017. The MAVNI program, which ended on September 30, 2017, successfully recruited 10,892 soldiers, with plaintiffs estimating that over 5,000 of these recruits have since become naturalized citizens. The testimony of Lt. Col. Ret. Margaret Stock highlighted that the Fort Hood shooting in November 2009, committed by Army psychiatrist Nidal Malik Hasan, led to a two-year suspension of the MAVNI program, as many mistakenly believed Hasan was a MAVNI soldier due to his foreign-sounding name. The Court denied the defendant's pre-trial motion to exclude Lt. Col. Stock as a witness, finding her factual testimony credible and in line with the evidence presented. Following the Fort Hood incident, a thorough investigation was deemed necessary; however, the Court speculates that if Hasan had a more common surname, the MAVNI program might not have been as adversely affected. As a result of the hiatus, no recruits enlisted through MAVNI in FY 2011 or FY 2012. Upon the program’s reinstatement in FY 2013, recruits faced a more stringent vetting process, including various security checks. The heightened screening protocols introduced in September 2016 included a continuous monitoring program that is currently being challenged. The administrative record features an "Action Memo" acknowledging the significant legal constraints of enhanced screening without individualized cause, alongside reports recognizing the benefits and quality of MAVNI recruits, commissioned by the Army.
The RAND Corporation and HumRRO conducted evaluations of the MAVNI program, producing an interim evaluation in November 2011 and a final assessment in February 2013, while the RAND report was released in July 2017. HumRRO's study assessed the Army's achievement of MAVNI program goals, compared MAVNI recruits to other soldiers, and examined changes in MAVNI personnel attitudes. The RAND analysis focused on comparing performance and costs between MAVNI and non-MAVNI service members, estimating potential MAVNI recruit numbers, and evaluating security risks. The defendant criticized the RAND report for lack of access to classified information, which only affects the security risk assessment and does not undermine the credibility of either report regarding cost-effectiveness and recruitment quality.
Eligibility for security clearances differs between MAVNI and non-MAVNI personnel. Non-MAVNI soldiers need to complete a Tier 3 review for "secret" clearance and an SSBI/Tier 5 for "top secret" clearance. In contrast, MAVNI recruits post-February 2012 are required to complete an SSBI/Tier 5, a NIAC, and a CIFSR for both clearance types. The document mentions plaintiff Xi (Tracy) Cui, a MAVNI recruit who received an unfavorable MSSD after naturalization. The court noted that all DoD personnel with security clearances must enroll in a continuous evaluation system by the end of 2021, but no equal protection claim arises from this requirement as it applies uniformly.
The court decided against certifying a class, stating that a permanent injunction would benefit all similarly situated MAVNI personnel without the need for class certification, referencing a prior ruling that emphasized the lack of utility and increased complexity involved in class actions.
