Tiwari v. Mattis, C17-242 TSZ

• Decision Date: 31 January 2019
• Docket Number: C17-242 TSZ
• Parties: Kirti TIWARI; Seung Yoon Yang; Amandeep Singh; Duncan Makau; Valdeta Mehanja; Raj Chettri; Thong Nguyen; Xi Cui; Rajat Kaushik; Blerta Mehanja; Mengmeng Cai; Sandeep Singh; Fleury Ngantchop Keigni Di Satchou; Kaushal Wadhwani; Angelita Acebes; Kusuma Nio; and Qi Xiong, Plaintiffs, v. James MATTIS, Secretary, United States Department of Defense, in His Official Capacity, Defendant.
• Court: U.S. District Court — Western District of Washington

363 F.Supp.3d 1154

Kirti TIWARI; Seung Yoon Yang; Amandeep Singh; Duncan Makau; Valdeta Mehanja; Raj Chettri; Thong Nguyen; Xi Cui; Rajat Kaushik; Blerta Mehanja; Mengmeng Cai; Sandeep Singh; Fleury Ngantchop Keigni Di Satchou; Kaushal Wadhwani; Angelita Acebes; Kusuma Nio; and Qi Xiong, Plaintiffs,

v.James MATTIS, Secretary, United States Department of Defense, in His Official Capacity,¹ Defendant.

C17-242 TSZ

United States District Court, W.D. Washington, at Seattle.

Signed January 31, 2019

Neil T. O'Donnell, Pro Hac Vice, Cascadia Cross Borderlaw Group LLC, Anchorage, AK, Joseph R. Shaeffer, MacDonald Hoague & Bayless, Seattle, WA, for Plaintiffs.

Joseph C. Dugan, Michael Fraser Knapp, Nathan M. Swinton, US Dept. of Justice, Washington, DC, for Defendant.

ORDER

Thomas S. Zilly, United States District Judge

THIS MATTER came on for trial on November 26, 2018, before the Court, sitting without a jury. Plaintiffs were represented by Neil T. O'Donnell of Cascadia Cross Border Law Group LLC. Defendant was sued in his official capacity as the Secretary of the United States Department of Defense ("DoD") and was represented by Joseph C. Dugan, Michael F. Knapp, and Nathan M. Swinton, attorneys with the United States Department of Justice. Trial proceeded for five days and ended on November 30, 2018, at which time the Court took the matter under advisement. Having considered the testimony of the witnesses,² the exhibits admitted into evidence,³ the facts on which the parties have agreed, see Amended Pretrial Order (docket no. 179) [hereinafter "PTO"], and the oral and written arguments of counsel, the Court now enters these Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a).⁴

Background

Plaintiffs are seventeen (17) United States citizens who are or were, at the time trial commenced, serving in the United States Army. They each enlisted through the Military Accessions Vital to the National Interest ("MAVNI") program, which was implemented in fiscal year ("FY") 2009 to address difficulties the DoD had experienced in recruiting individuals with either proficiency in critical foreign languages⁵ or specialized healthcare training. See Ex. 29 at 14 & 23-24; see also Ex. 33 at 17. When they joined the Army, plaintiffs were not United States citizens,⁶ but rather had the requisite legal status for the MAVNI program (i.e. , as an asylee, a refugee, a non-immigrant alien,⁷ or a grantee of temporary protected status). Each plaintiff was naturalized as a citizen, pursuant to 8 U.S.C. § 1440,⁸ after serving honorably for some period in the Army. See PTO at 4-10, ¶¶ 6-22 (docket no. 179).

The parties agree that plaintiffs are currently being treated differently from other citizens in two ways: (i) plaintiffs are subject to "continuous monitoring," which requires inter alia a series of National Intelligence Agency Checks ("NIAC")⁹ every two years; and (ii) plaintiffs must have inter alia a NIAC that was performed within the last two years to be eligible for a security clearance.¹⁰ See PTO at ¶¶ 3 & 5. No person affiliated with the DoD, other than individuals who (like plaintiffs) accessed through the MAVNI program, is required, absent particularized suspicion, to undergo a biennial NIAC. Plaintiffs, however, must endure such periodic screening for the duration of their military service and even after discharge, whenever they work as a civilian for the government or an entity providing supplies or services for the DoD. See infra note 11.

The NIAC requirements are set forth in a memorandum issued on September 30, 2016, by then Acting Under Secretary of Defense for Personnel and Readiness Peter Levine, which states in relevant part:

All personnel accessed through the MAVNI program since its inception in 2009 must be continuously monitored and accounted for throughout the duration of their affiliation with the Department of Defense (e.g. active duty, Reserve, government civilian, or contractor).¹¹

....

The DoD CAF [Consolidated Adjudications Facility] is responsible for adjudicating completed personnel security background investigations to render a determination of each individual's eligibility to access classified information and may require ... [a] NIAC....

Ex. 4 at 2 & 7; see also PTO at ¶¶ 1-5. Pursuant to the Levine memorandum, if a NIAC reveals derogatory information, a counterintelligence ("CI") security interview and/or a polygraph examination may be requested. Ex. 4 at 7. Refusal to comply with such request is grounds for separation from the military. Id. ¹²

Plaintiffs ask the Court to declare that the NIAC requirements unconstitutionally discriminate against them on the basis of national origin, and they seek injunctive and equitable relief.¹³ Defendant counters that the DoD's unequal treatment of citizens who were recruited through the MAVNI program survives constitutional challenge because either (i) it is premised on the manner through which the individuals enlisted in the Army rather than on those citizens' national origin; or (ii) if an inherently suspect classification is implicated, the DoD's actions are "necessary" and "precisely tailored" to achieve a "compelling" governmental interest, namely national security. See Huynh v. Carlucci , 679 F.Supp. 61, 66 (D.D.C. 1988) (reciting the "strict scrutiny" standard applicable to inherently suspect classifications (citing Plyler v. Doe , 457 U.S. 202, 217, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), and In re Griffiths , 413 U.S. 717, 721-22, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973) ) ).

This dispute requires the Court to balance the equal protection rights¹⁴ of highly qualified citizens who have served or continue to serve honorably in the military¹⁵ against the DoD's concerns about foreign operatives infiltrating the MAVNI program or potentially converting MAVNI soldiers into assets for our country's adversaries. It involves the constant tension between individual rights and national interests, and it reminds us that, when the asserted governmental interests appear the most compelling, courts must be the most vigilant because "grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure." See Hassan v. N.Y.C. , 804 F.3d 277, 306-07 (3d Cir. 2015) (quoting Skinner v. Ry. Labor Execs.' Ass'n , 489 U.S. 602, 635, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (Marshall, J., dissenting) ). For the reasons explained in this Order, the Court concludes that the DoD's challenged policies discriminate on the basis of national origin, and that defendant has not carried the burden of proving that the biennial NIACs required in connection with "continuous monitoring" and security clearance eligibility, which are imposed on citizens who accessed through the MAVNI program but not on other citizens affiliated with the DoD, survive strict scrutiny.

Discussion

When this lawsuit began, plaintiffs sought relief with respect to additional aspects of the "continuous monitoring" program and the security clearance protocols applied to MAVNI personnel,¹⁶ but as a result of the evidence presented at trial, plaintiffs narrowed their claim to encompass only the periodic NIAC requirements of continuous monitoring and security clearance procedures.¹⁷ With respect to the biennial NIAC mandated for individuals who accessed through the MAVNI program and remain affiliated with the DoD, the questions before the Court are as follows: (i) whether the disparate treatment constitutes national-origin-based discrimination, and is therefore subject to strict scrutiny, or is merely related to the manner in which the soldiers entered the military (i.e. , via the MAVNI program), and thus, must withstand only rational basis review; and (ii) whether the MAVNI-focused policies at issue bear the requisite relationship to the government's interest (i.e. , national security).

A. Level of Review

The Court concludes that strict scrutiny must be applied to the challenged DoD policies. Government action that distinguishes among citizens on the basis of national origin is inherently suspect and subject to "strict scrutiny." See Huynh , 679 F.Supp. at 66 (citing Graham v. Richardson , 403 U.S. 365, 372, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), and Korematsu v. United States , 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944), abrogated on other grounds by Trump v. Hawaii , ––– U.S. ––––, 138 S.Ct. 2392, 201 L.Ed.2d 775 (2018) ). To satisfy strict scrutiny, (i) the use of a suspect classification must bear a close relationship to the promotion of a "compelling" governmental interest, (ii) the use of such classification must be "necessary" to achieve such interest, and (iii) the means or procedures used must be "precisely tailored" to serve such interest. Id. (citing Plyler , 457 U.S. at 217, 102 S.Ct. 2382, and In re Griffiths , 413 U.S. at 721-22, 93 S.Ct. 2851 ). The requirement that MAVNI personnel undergo NIAC screening every two years as part of either the "continuous monitoring" program or the security clearance approval process makes remaining a soldier or DoD affiliate and/or obtaining a security clearance more onerous for citizens born outside the United States than for other citizens, and therefore constitutes discrimination on the basis of national origin. See Faruki v. Rogers , 349 F.Supp. 723, 726-27 (D.D.C. 1972) (three-judge district court).

In Faruki , the plaintiff challenged a provision of the Foreign Service Act of 1946, which prohibited a person from being appointed as a foreign service officer unless he or she was "a citizen of the United States and has been such for at least ten years." Id. at 725 (quoting 22 U.S.C. § 910 (1970) ). The Faruki Court concluded that the statute treated persons who were citizens at birth more favorably than and discriminated against individuals who had been born abroad and then naturalized. Id. at 725-27. In striking down the durational requirement of § 910, the...