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Thakkar v. United States

United States District Court, D. Massachusetts

May 6, 2019

DR. VICKY INDRAVADAN THAKKAR, Plaintiff,
v.
UNITED STATES OF AMERICA, U.S. DEPARTMENT OF HOMELAND SECURITY, KIRSTJEN NIELSEN, U.S. CITIZENSHIP & IMMIGRATION SERVICES, L. FRANCIS CISSNA, DISTRICT DIRECTOR DENIS RIORDAN, FIELD OFFICER DIR. MIKE MCCLEARY, U.S. DEPARTMENT OF DEFENSE, SECRETARY JAMES M. MATTIS, UNDERSECRETARY ROBERT WILKIE, Defendants.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, STAY THE CASE (#14.)

          M. Page Kelley United States Magistrate Judge.

         I. Introduction

         In this case, a non-citizen without permanent residency, who enlisted in the United States Army and applied for United States citizenship, alleges that the Department of Defense (the DOD), the Department of Homeland Security (the DHS), and certain of their sub-agencies and agency heads breached his enlistment contract and violated various statutes and constitutional provisions by stalling the processing of his citizenship application.

         On June 25, 2018, Plaintiff, Dr. Vicky Indravadan Thakkar, a citizen of India, filed an eight-count complaint against the United States, the DHS, the DOD, the United States Citizenship and Immigration Services (USCIS), their respective agency heads, and various Boston-area field officers, alleging the following claims: unreasonable delay in processing his naturalization application in violation of the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq. (Count I) (#1 ¶¶ 89-93);Writ of Mandamus (Count II) (id. at ¶¶ 94-99); violation of his rights under the Fifth Amendment (Count III) (id. at ¶¶ 100-01); deprivation of the “Statutory Right To Naturalize[, ]” pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1440 and the APA (Count IV) (id. at ¶¶ 102-04); breach of contract (Count V) (id. at ¶¶ 105-10); equitable estoppel (Count VI) (id. at ¶¶ 111-14); declaratory judgment (Count VII) (id. at ¶¶ 115-18); and preliminary and permanent injunctive relief (Count VIII) (id. at ¶¶ 119-25.)

         Plaintiff alleges that, in addition to violating certain statutes and constitutional provisions, the DOD's refusal to complete a background investigation, and the DHS and its sub-agencies' resultant delay in processing his naturalization application, have damaged his career prospects in the United States Army and denied him citizenship. (Id. at ¶¶ 81, 85-86, 88.) Plaintiff also alleges that the DOD unreasonably has insisted that he revoke his Indian citizenship and become a “stateless person” before his naturalization application can proceed, rendering him an unauthorized immigrant and possibly subjecting him to deportation proceedings. (Id. ¶ 79 n.3.) Plaintiff seeks injunctive relief, requesting that the DOD complete his required background investigation and the DHS process his naturalization application, and seeking “specific enforcement” of his enlistment contract. (Id. ¶¶ 25-27.) Plaintiff also seeks monetary damages for “the past and ongoing breach of his enlistment contract[, ]” as well as attorneys' fees and costs. (Id. ¶¶ 28-29.)

         On September 7, 2018, Defendants filed a Motion to Dismiss or, In the Alternative, Stay the Case (#14), asserting that Plaintiff's suit is barred because he is already a member of a previously-filed class action, Nio v. U.S. Dep't of Homeland Sec., No. 17-cv-0998 (ESH) (D.D.C. filed May 24, 2017). Defendants argue that, in addition to being barred by Nio, Plaintiff's claims for breach of contract, estoppel, and violation of the “statutory right to naturalize” should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1) and/or 12(b)(6).

         For the reasons stated below, the Court grants in part and denies in part Defendants' motion to dismiss the case without prejudice, and grants in part and denies in part a stay of the case pending the resolution of Nio.

         II. The Facts

         The facts are undisputed except as indicated. Plaintiff is a citizen of India, and currently resides in Medford, Massachusetts. (#1 ¶ 1.) On August 17, 2010, Plaintiff lawfully entered the United States after being admitted on an “F-1” student visa. (Id. ¶ 46.) He graduated from Columbia University College of Dental Medicine in 2014 as a Doctor of Dental Surgery (DDS), after which he applied for and received H1B “non-immigrant” worker status, allowing him to remain lawfully within the United States. (Id. ¶¶ 47-49.) Plaintiff's first H1B was issued on May 14, 2015, and his current H1B was issued on November 22, 2016. (Id. ¶ 50.)

         On November 12, 2015, Plaintiff signed an enlistment contract and took an oath of service with the United States Army through the Military Accessions Vital to National Interest (MAVNI) program.[2] (Id. ¶¶ 53, 57.) In his November 12, 2015 enlistment contract, Plaintiff agreed to apply for citizenship “as soon as” the Army had certified his honorable service. (#1 ¶ 55; #20-1 at 5 ¶ 5.) However, in signing the contract, Plaintiff acknowledged his understanding that “the Army does not grant U.S. citizenship, ” and the Army would not be able to guarantee that his application for citizenship would be approved. (#1 ¶ 55; #20-1 at 5 ¶ 5.) Approximately ten months later, in September 2016, Plaintiff began serving as a Specialist (E-4) in the Selected Reserve of the Ready Reserve (Selected Reserve).[3] (#1 ¶ 58.)

         Generally, only United States citizens or those having legal permanent residency may enlist in the United States Armed Forces. (#1 ¶ 35; #15-A-1 ¶ 3 (citing 10 U.S.C. § 504(b)).) Under the MAVNI program, however, non-citizens like Plaintiff without permanent residency could enlist and serve in the military if they had critical skills “vital to the national interest[.]” (#15-A-1 ¶¶ 3- 4 (citing 10 U.S.C. § 504(b)(2), and 8 U.S.C. § 1440).) Those enlisting under the MAVNI program would be afforded an expedited path to citizenship. (Id. ¶ 9.)[4] As part of the enlistment process, a MAVNI applicant would undergo a “military-service determination” and other military background checks. (#1 ¶ 70.) The MAVNI applicant could begin the process of applying for naturalization as soon as the armed services certified his or her honorable service, by submitting to USCIS a standard Form N-400 naturalization application, as well as a USCIS Form N-426, certifying his qualifying military service. (#15-A-6 ¶ 5; see also #1 ¶ 59.) Serving in the Selected Reserve was considered “qualifying military service.” (#15-A-6 ¶ 44) (citation omitted).)

         Until recently, it was USCIS' general practice to process MAVNI naturalization applications in the same way as other § 1440 naturalization applications, by initiating an FBI criminal background check and conducing a Defense Clearance Investigative Index (DCII), (separate from the required military background checks), with the DOD. (#1 ¶¶ 70, 77 (citing 8 U.S.C. § 1446); #15-A-6 ¶ 65.) Once the FBI criminal background and DCII checks had been completed, a MAVNI naturalization applicant was eligible for an examination by a USCIS officer. See Nio v. Dept' of Homeland Sec., 270 F.Supp.3d 49, 55 (D.D.C. 2017) (citing 8 C.F.R. 335.2 (2011)). Although there was no specific time period for completing the FBI criminal background checks and DCII checks, USCIS was required by statute to adjudicate all naturalization applications within 120 days of completing the examination. Id. at 67 (citing Hamandi v. Chertoff, 550 F.Supp.2d 46, 50 (D.D.C. 2008)). As of May 2017, the average processing time for all military N-400 naturalization applications, including those of the MAVNI applicants, was slightly more than four months. Id. at 56. Also, as of July 2017, USCIS had naturalized “at least” 10, 000 MAVNI applicants through this process. (#15-A-1 ¶ 7.)

         Plaintiff submitted his N-400 Naturalization Application pursuant to USCIS' general practice in September 2016. (#1 ¶ 59.) On September 11, 2016, Plaintiff's Company Commander, Lieutenant Colonel Edwardo Olegario, signed Form N-426, certifying Plaintiff's honorable military service. (Id.) On November 4, 2017, Plaintiff submitted an additional N-426 Form, this time signed by Colonel John McCabe. (Id. n.2.) All parties agree that Plaintiff's N-400 and N-426 forms were received and submitted in the proper form. (Id. ¶ 60.)

         Plaintiff's naturalization application has since been in limbo. Beginning on September 30, 2016, the DOD started requiring all MAVNI applicants to complete an enhanced military security screening before they could receive a favorable military service determination, qualify for active-duty status, or ship to basic training. (#15-A-2; #15-A-4 at 1.) While this enhanced military security screening requirement for MAVNI applicants did not necessarily impact the adjudication of the MAVNI naturalization applications on its face, in April 2017, the DOD informed USCIS of its concerns regarding the naturalization of MAVNI applicants whose enhanced military screenings were still pending. (#15-A-1 ¶ 18.) Thereafter, on July 7, 2017, Daniel Renaud, then the Associate Director, Field Operations Directorate, of USCIS Headquarters, provided final agency guidance, stating that all pending and future MAVNI naturalization applications “may not proceed to interview, approval, or oath until confirmation that all enhanced security checks [were] completed.” (#15-A-5 at 1-2.) Accordingly, USCIS would no longer be permitted to examine any pending MAVNI naturalization applications until the DOD completed its enhanced military security screenings. (Id.) Neither the DOD nor USCIS has provided any guidance regarding how long these enhanced security screenings will take.

         On October 17, 2016, USCIS initiated Plaintiff's background check for naturalization. (#1 ¶ 61.) While a USCIS field officer has informed Plaintiff that his FBI criminal background check has been complete since January 2017, USCIS has repeatedly advised him that his enhanced military security screening is incomplete and has failed to provide any estimated time for completion. (Id. ¶¶ 67-68.) On March 19, 2018, Plaintiff was again informed that “his case was on hold due to pending background checks.” (Id. ¶ 68.) Therefore, as of the time his complaint was filed, USCIS had not scheduled Plaintiffs naturalization interview. (Id. ¶ 63.)

         On May 24, 2017, before the instant suit was filed, various foreign national soldiers who, like Plaintiff, had enlisted in the Selected Reserve through the MAVNI program and filed naturalization applications pursuant to 8 U.S.C. § 1440, filed suit in the United States District Court for the District of Columbia (District of Columbia) against the DHS, the DOD, and USCIS, and their agency and sub-agency heads. See Nio, No. 17-cv-0998 (ESH). Following USCIS' July 7, 2017 guidance, the Nio plaintiffs amended their complaint, specifically challenging the DHS/USCIS' decision to put their naturalization applications on hold pending the DOD's completion of enhanced military security screenings. (#15-A-6.) Like Plaintiff in the present case, the Nio plaintiffs brought multiple claims under the Constitution and the APA, seeking mandamus, due process, declaratory relief, and injunctive relief “to compel and enjoin Defendants . . . to properly and timely act upon, and to otherwise cease interfering with, the processing of plaintiffs' naturalization applications.” (Id. ¶ 10.)

         On October 27, 2017, the District of Columbia granted the Nio plaintiffs' motion for class certification, defining the Nio class to include individuals who have:

(i) enlisted in the Selected Reserve through the MAVNI program before October 13, 2017;
(ii) served honorably in the United States military through participation in at least one Selected Reserve drill period or in an active duty status;
(iii) received from the military executed Form N-426s certifying their honorable service;
(iv) submitted N-400 Applications for Naturalization to USCIS; and
(v) had the processing or final adjudication of their naturalization applications withheld or delayed, due to either the DOD's enhanced military security screenings, a final USCIS processing hold for MAVNIs, a DOD N-426 policy review, the DOD N-426 recall/decertification policy, a DOD Consolidated Actions adjudication, a national security determination, and/or a military service suitability vetting or determination.

(#15-A-7 at 1-2); Nio v. Dept' of Homeland Sec., 323 F.R.D. 28, 31 (D.D.C. 2017). While the Nio court acknowledged the factual differences among the class members, it noted that the plaintiffs were all challenging whether USCIS could delay their naturalization applications pending the outcome of the DOD's enhanced military security screenings, or whether the DOD could rescind MAVNIs' N-426s based on additional “October 13th Guidance.”[5] (#15-A-7 at 8); Nio, 323 F.R.D. at 32. Put differently, because the parties were challenging “the application of standardized policies that generally apply to the class[, ]” none of the class members' factual differences impacted “the overarching questions common to the class[.]” (#15-A-7 at 8, 13); Nio, 323 F.R.D. at 32, 34-35.

         The Nio class is a nationwide class certified under Federal Rules of Civil Procedure 23(a), (b)(1)(A), and (b)(2).[6] (#15-A-7 at 7-13); Nio, 323 F.R.D. at 32-35. According to Defendants, Plaintiff has been listed as a class member in the periodic updates ordered by the court in Nio. (#15 at 1-2; see also #15-A-8.)

         Defendants argue that, because Plaintiff is a member of the Nio class, and his complaint seeks to litigate the same claims covered in Nio, his complaint in this Court should be dismissed, or alternatively, stayed, pending the District of Columbia's resolution of Nio. (#15 at 1-2.) Defendants also contend that, in addition to being barred by Nio, Plaintiff's claims for estoppel, breach of contract, and violation of the “statutory right to naturalize” should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1) and/or 12(b)(6). (Id. at 11-16.)

         Without explaining how this affects the relief he is seeking, Plaintiff responds by arguing that he is not sufficiently similar to the other MAVNI enlistees in the Nio class because he is a “medical” MAVNI, and the Nio lawsuit “appears” to involve “language” MAVNIs, who are subject to different enhanced military security screenings than he is. (#20 at 4.) Plaintiff further argues that his statutory right to naturalize, breach of contract, and equitable estoppel claims are different from the claims of the class action members in Nio. (#20 at 12-13.) Plaintiff also contends that equity mandates denying ...


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