Summary
In Kulkarni v. Wolf, 503 F. Supp. 3d 908 (W.D. Mo. 2020), the district court applied the Berenyi presumption to statutory interpretation, stating, "it has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect." Id. at 916.
Summary of this case from Alam v. U.S. Citizenship & Immigration Servs.Opinion
Case No. 4:20-00089-CV-RK
11-25-2020
Siddhi KULKARNI, Plaintiff, v. Chad F. WOLF, et al., Defendants.
Jennifer M. Wollenberg, Pro Hac Vice, Morgan, Lewis & Bockius, LLP, Washington, DC, Jonathan James Willmoth, Willmoth Immigration Law, LLC, Kansas City, MO, for Plaintiff. Alan Thomas Simpson, United States Attorney's Office, Kansas City, MO, for Defendants.
Jennifer M. Wollenberg, Pro Hac Vice, Morgan, Lewis & Bockius, LLP, Washington, DC, Jonathan James Willmoth, Willmoth Immigration Law, LLC, Kansas City, MO, for Plaintiff.
Alan Thomas Simpson, United States Attorney's Office, Kansas City, MO, for Defendants.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
ROSEANN A. KETCHMARK, JUDGE
This case involves the denial of Plaintiff Siddhi Kulkarni's application to become a naturalized U.S. citizen by the U.S. Citizenship and Immigration Services ("USCIS"). Pending before the Court is Defendants’ motion to dismiss for failure to state a claim. (Doc. 10.) The motion has been fully briefed. (Docs. 10-1, 18, 25.) For the reasons stated below, and after careful consideration, the motion is GRANTED , and the case is DISMISSED . I. Background
Upon review of the record, Defendant's position is found to be persuasive. Additionally, the Court was persuaded by the rationale set out in Oyebade v. Lee , No. 1:09-cv-01054-LJM, 2010 WL 2927207, at *1 (S.D. Ind. July 21, 2010), and by the rationale adopted by the United States District of Massachusetts in Akrong v. United States Citizenship & Immigration Services Lawrence Field Office , No. 4:13-cv-40145-DHH, 2014 WL 1056995 (D. Mass. Mar. 14, 2014). Portions of Defendant's briefing, Oyebade , and the underlying briefing from Akrong are adopted without further attribution.
On February 10, 2020, Plaintiff filed this action under 8 U.S.C. § 1421(c) seeking judicial review of USCIS's determination that she is ineligible to naturalize based on her "uncharacterized" discharge. (Doc. 1.) Plaintiff named the following as Defendants in the Complaint: (1) Chad Wolf in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; (2) Kenneth Cuccinelli in his official capacity as Acting Director of USCIS; (3) David Douglas in his official capacity as District Director of the Kansas City District Office of USCIS; and (4) Michelle Perry in her official capacity as Field Office Director of the Kansas City Field Office of USCIS. (Doc. 1.)
Plaintiff enlisted in the United States Army through the Military Accessions Vital to the National Interest ("MAVNI") program, which provides foreign nationals a pathway to U.S. citizenship by serving in the military during designated periods of hostility subject to the statutory requirements of 8 U.S.C. § 1440. Plaintiff sustained injuries during basic training, resulting in her discharge before completing basic training (also referred to as entry-level separation).
Plaintiff then sought to be naturalized as a U.S. citizen by submitting an N-400, Application for Naturalization, to USCIS on December 21, 2018. (Doc. 1 at 13.) The application included a Form N-426, which is a Request for Certification of Military or Naval Service, created by the USCIS. The form certified Plaintiff served honorably in the Army in an active duty capacity. (Doc. 1-3 at 3.) As to separation, on that form are two boxes as to discharge type: "Honorable," and "Other." The Army did not select (or certify) a discharge type. (Doc. 1-3 at 4.) The Army additionally provided Plaintiff a DD 214 Form titled Certificate of Release or Discharge from Active Duty, labeling her type of separation a "Discharge" and labeling her "Character of Service" as "Uncharacterized." (Doc. 1-1.) The "Narrative Reason for Separation" was "Condition, not a disability." (Doc. 1-1.)
The USCIS denied Plaintiff's application for naturalization on the basis that Plaintiff received an "uncharacterized" discharge and had not "demonstrated that [she was] discharged from the U.S. Armed Forces under honorable conditions." (Doc. 1-5.) Plaintiff appealed that determination, submitting a Form N-336 (titled Request for a Hearing on a Decision in Naturalization Proceedings). (Doc. 1 at 15.) USCIS affirmed the denial, noting it "must defer to the Department of the Army ... to determine whether you served and were separated under honorable conditions." (Doc. 1-7 at 2.)
Between the dates of the administrative appeal and USCIS's decision, on June 19, 2019, Plaintiff obtained a second USCIS Form N-426 – Request for Certification of Military or Naval Service, in which the Army certified to USCIS that Plaintiff received an "uncharacterized" discharge. (Doc. 1-6 at 4.) Again, on that form are two boxes as to separation information: "Honorable," and "Other." The Army checked the box "Other," and in accompanying remarks stated: "Soldier discharged with an uncharacterized discharge. No derogatory information found." (Doc. 1-6 at 4.) Plaintiff alleges, "[p]ursuant to the applicable statute and the USCIS Policy Manual, Ms. Kulkarni's June 19, 2019 Form N-426 is sufficient evidence that she is eligible for naturalization." (Doc. 1 at 19.)
Instead of seeking judicial review pursuant to 8 U.S.C. § 1421(c), Plaintiff filed a lawsuit in the United States District Court for the District of Columbia, along with similarly situated plaintiffs, challenging USCIS's "policy" of treating uncharacterized discharges as not "under honorable conditions." Miriyeva v. U.S. Citizenship & Immigration Servs. , 436 F. Supp. 3d 170 (D.D.C. 2019). The Miriyeva complaint included four counts: (1) Count I alleges SCIS's policy violates the Administrative Procedure Act ("APA"); (2) Count II alleges the policy violates the Constitution's Uniform Rule of Naturalization clause and the Fifth Amendment's due process clause; (3) Count III seeks a declaratory judgment; and (4) Count IV seeks injunctive relief. Id. The defendants filed a motion to dismiss for lack of jurisdiction, which the court granted on December 12, 2019. In dismissing the Miriyeva complaint, the court determined the judicial review process under 8 U.S.C. § 1421(c) provides an adequate remedy to challenge the denial of a naturalization application. The Miriyeva court held § 1421(c) precluded the substantive counts under the APA (Count I) and the Constitution (Count II). Accordingly, the court found that without a viable substantive claim, it lacked jurisdiction over the declaratory judgment claim (Count III). Id. at 186.
As to Count IV, the court found that although it purports to be a separate claim for injunctive relief, no such claim or cause of action exists. The Miriyeva case is on appeal to the United States Court of Appeals for the District of Columbia.
Plaintiff then filed this action under 8 U.S.C. § 1421(c) seeking judicial review of USCIS's determination. Plaintiff's complaint includes five counts: (1) Count I for violations of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1440 ; (2) Count II for violations of the APA; (3) Count III for Constitutional violations under the Uniform Rule of Naturalization and due process under the Fifth Amendment; (4) Count IV seeks a declaratory judgment; and (5) Count V seeks injunctive relief.
Defendants filed the instant motion to dismiss on May 13, 2020, arguing the Court should dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P 12(b)(6).
Defendants additionally argue the complaint should be dismissed because issue preclusion bars Counts II through V. However, because Plaintiff fails to state a claim under those grounds, the Court need not reach the matter of issue preclusion.
II. Legal Standard
To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim is facially plausible where the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Wilson v. Ark. Dept. of Human Servs. , 850 F.3d 368, 371 (8th Cir. 2017) (internal quotation marks and citation omitted). While a complaint does not need to include detailed factual allegations, the complaint must allege more than a sheer possibility that a defendant acted unlawfully to survive a motion to dismiss. Id. (citation omitted). When considering a motion to dismiss for failure to state a claim, the well-pled allegations in the complaint must be accepted as true and construed in the light most favorable to the nonmoving party. Osahar v. U.S. Postal Serv. , 263 Fed. Appx. 753, 764 (11th Cir. 2008).
III. Discussion
A. Count I
Plaintiff alleges Defendants violated the INA when USCIS denied Plaintiff's naturalization application on the basis she failed to establish her discharge from the Army was under honorable conditions. Plaintiff contends USCIS has a policy of ignoring the military's view of her discharge as meeting the requirements of § 1440. (Doc. 18 at 5.)
1. Judicial Review
The INA provides that any "person whose application for naturalization ... is denied ... may seek review of such denial before the United States district court for the district court in which such person resides." 8 U.S.C. § 1421(c). "[ Section] 1421(c) requires a district court to subject a denial of a naturalization application to de novo review, to ‘make its own findings of fact,’ and to ‘conduct a hearing’ if requested by the applicant." Nyari v. Napolitano , 562 F.3d 916, 920 (8th Cir. 2009). "Any relief provided to the petitioner under § 1421(c) is an instruction to the agency to naturalize the petitioner." Miller v. McAleenan , No. 4:19-CV-00043-DGK, 2019 WL 2411440, at *2 (W.D. Mo. June 7, 2019) (citing Zayed v. United States , 368 F.3d 902, 906 (6th Cir. 2004) ).
2. The Administrative Naturalization Process under 8 U.S.C. § 1440
In relevant part, § 1440(a) states:
Any person who, while an alien or a noncitizen national of the United States, has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States [during a designated period of hostilities], and who, if separated from such service, was separated under honorable conditions , may be naturalized as provided in this section[.]
(Emphases added).
Of note, "the executive department under which such [applicant] served shall determine whether persons have served honorably in an active-duty status, and whether separation from such service was under honorable conditions." Id.
Section 1440(b) drills down on the requirement that the executive department's certification is key:
(b) Exceptions
A person filing an application under subsection (a) of this section shall comply in all other respects with the requirements of this subchapter, except that -
(3) service in the military, air, or naval forces of the United States shall be proved by a duly authenticated certification from the executive department under which the applicant served or is serving, which shall state whether the applicant served honorably in an active-duty status [during a designated period of hostilities] and was separated from such service under honorable conditions .
8 U.S.C. § 1440 (emphasis added).
Finally, § 1440(c) instructs on when citizenship may be revoked, as follows:
Citizenship granted pursuant to this section may be revoked in accordance with section 1451 of this title if the person is separated from the Armed Forces under other than honorable conditions before the person has served honorably for a period or periods aggregating five years. Such ground for revocation shall be in addition to any other provided by law, including grounds described in section 1451 of this title. The fact that the naturalized person was separated from service under other than honorable conditions shall be
proved by a duly authenticated certification from the executive department under which the person was serving at the time of separation . ...
Id. (emphases added).
B. Plaintiff's Burden of Proof
"No alien has the slightest right to naturalization unless all statutory requirements are complied with," United States v. Ginsberg , 243 U.S. 472, 474-75, 37 S.Ct. 422, 61 L.Ed. 853 (1917), and "there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship," Fedorenko v. United States , 449 U.S. 490, 506, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981). To obtain relief, an applicant must establish he is eligible "in every respect" to become a United States citizen. Berenyi v. Dist. Dir., INS , 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967). The burden of demonstrating eligibility for naturalized citizenship rests on the individual seeking the privilege:
When the Government seeks to strip a person of citizenship already acquired, or deport a resident alien and send him from our shores, it carries the heavy burden of proving its case by clear, unequivocal, and convincing evidence. But when an alien seeks to obtain the privileges and benefits of citizenship, the shoe is on the other foot. He is the moving party, affirmatively asking the Government to endow him with all the advantages of citizenship. Because that status, once granted, cannot lightly be taken away, the Government has a strong and legitimate interest in ensuring that only qualified persons are granted citizenship. For these reasons, it has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect. This Court has often stated that doubts ‘should be resolved in favor of the United States and against the claimant.’
Berenyi , 385 U.S. at 636-37, 87 S.Ct. 666 (citations and quotation marks omitted).
Defendants seek dismissal of Count I, arguing the complaint does not state plausible facts showing USCIS misapplied § 1440. Plaintiff counters the complaint includes plausible facts showing USCIS's treatment of "uncharacterized" discharges is unlawful in violation of § 1440.
Defendant does not dispute Plaintiff served in the army in active-duty status and she did so honorably. Rather, the disagreement is grounded in Plaintiff's discharge. Plaintiff appears to argue her period of honorable active-duty service alone satisfies § 1440 because she served her entire period of service honorably.
However, § 1440(a) imposes a condition for those who are no longer serving in the Armed Forces by stating "and who, if separated from service, was separated under honorable conditions" (emphasis added). Based on the word "and," the statutory language requiring those conditions must be read in the conjunctive. Nielsen v. Preap , ––– U.S. ––––, 139 S. Ct. 954 at 969, 203 L.Ed.2d 333 (2019) (citation omitted) (noting every word and every provision is to be given effect and none should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence). Here, it is undisputed Plaintiff was separated from military service, so the conditional prong of the statute ("if separated from service") applies, requiring Plaintiff to prove her separation was "under honorable conditions."
Plaintiff cannot establish she was "separated under honorable conditions." In addition to § 1440(a) ’s requirement that the Armed Services determine whether persons have served honorably in an active-duty status and whether separation from service was under honorable conditions, § 1440(b)(3) drills down on the requirement by restricting the method by which proof must be made: military service "shall be proved by a duly authenticated certification from the executive department ... which shall state whether the applicant served honorably in an active-duty status[,]" and whether the applicant "was separated from such service under honorable conditions" (emphasis added).
Here, the Army made the requisite certification when it issued a DD Form 214 "Certificate of Release or Discharge from Active Duty." (Doc. 1-1.) That form indicates the Army discharged Plaintiff under Army regulations applicable to soldiers in an "entry-level status," which resulted in the Army designating the "character of service" in Plaintiff's DD Form 214 as "uncharacterized." (Doc. 1-1.) More to the point, the Army expressly made its certifications on the USCIS June 19, 2019 form, on which USCIS relied in making its naturalization determination. (Doc. 1-6.) Both the Army discharge form and the USCIS form setting out this certification are attached to Plaintiff's complaint, and neither party disputes the authenticity or content of either form. Without question, the Armed Services elected not to certify Plaintiff's separation as "under honorable conditions." Thus, Plaintiff did not meet her burden of demonstrating she is eligible for naturalization because she has not shown she was "separated under honorable conditions," as required by § 1440(a). See Oyebade v. Lee , No. 1:09-cv-01054-LJM, 2010 WL 2927207, at *1 (S.D. Ind. July 21, 2010) (holding that an uncharacterized discharge is not an honorable separation and therefore cannot give rise to eligibility for military naturalization).
In so ruling, the Court finds meritless Plaintiff's contention that she has met her burden of establishing she is entitled to naturalization because the military treats its determination of "uncharacterized" discharges as discharges that are "under honorable conditions." More specifically, Plaintiff argues, "[b]eyond the statute and USCIS's own Policy Manual, the military's own regulations and guidance recognize an ‘uncharacterized’ discharge is not to be treated as anything less than an ‘under honorable conditions’ discharge for purposes of naturalization." (Doc. 18 at 8.) Pointing away from the statute, Plaintiff refers to internal Department of Defense (DoD) Instructions (DoDI), which are attached to the complaint. (Doc. 1-2.) Plaintiff points in particular to DoD Instruction 1332.14, which has been in effect since January 2014 and which "establishes DoD policy, assigns responsibilities, and provides procedures governing administrative separation of enlisted Service members from the Military Services." That provision states in part:
Plaintiff includes as attachments to her complaint two portions of the USCIS policy manual. Plaintiff relies on Exhibit 8 because it states that "Honorable service means only service in the U.S. armed forces that is designated as honorable service by the executive department under which the applicant performed that service" and because the potion of the manual does not mention an "uncharacterized" discharge. (Doc. 1 at 17, 24.) However, that provision notes in part, "Both ‘Honorable’ and ‘General-Under Honorable Conditions’ discharge types qualify as honorable service for immigration service. Other discharge types, such as ‘Other Than Honorable’ do not qualify as honorable service." (Doc. 1-8 at 2.) This language is not contrary to the statute or to the Form N-426, which Plaintiff does not challenge.
Plaintiff relies on Exhibit 9 for its statement "soldiers applying for naturalization under § 1440 (INA § 329) must include a Form N-426 in their naturalization applications to confirm ‘whether the applicant served honorably in an active duty status ... as required for naturalization under § 1440." (Doc. 1-9 at 2.) However, the provision additionally references the "type of separation and character of service" and notes the information is typically found on the DD Form 214. More to the point, the form qualifies that it "provides relevant information for applying for naturalization on the basis of military service" and later notes "[m]ost military installations have a designated office that serves as a point-of-contact to assist service members with their naturalization application packets. Service members should inquire through their chain of command for the appropriate office to assist with preparing the packet." Once again, this language is not contrary to the statute or to the Form-426, which Plaintiff does not challenge.
3. CHARACTERIZATION OF SERVICE OR DESCRIPTION OF SEPARATION
a. Types of Characterization or Description
(1) At separation, these types of characterization of service or description of separation are authorized under this instruction:
(a) Separation with characterization of service as honorable, general (under honorable conditions), or under other than honorable conditions.
(b) Entry-level separation....
b. Characterization of Service ...
(2) Types of Characterization
(a) Honorable. The honorable characterization is appropriate when the quality of the enlisted Service member's service generally has met the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. ...
(b) General (Under Honorable Conditions). If an enlisted Service member's service has been honest and faithful, it is appropriate to characterize that service as general (under honorable conditions). Characterization of service as general (under honorable conditions) is warranted when the positive aspects of the enlisted Service member's conduct or performance of duty outweigh negative aspects of the enlisted Service member's conduct or performance of duty as documented in the service record.
(c) Under Other than Honorable Conditions.
1. This characterization may be issued:
a. When the reason for separation is based on a pattern of behavior that constitutes a significant departure from the conduct expected of enlisted Service members of the Military Services.
b. When the reason for separation is based on one or more acts or omissions that constitute a significant departure from the conduct expected of enlisted Service members of the Military Services. ...
2. This characterization is authorized only if the Service member has been afforded the opportunity to request an administrative board action, except as provided in section 11 of Enclosure 3 regarding separation in lieu of trial by court-martial.
c. Uncharacterized Separation
(1) Entry Level Separation
(a) A separation will be described as an entry-level separation if separation processing is initiated while an enlisted Service member is in an entry level status, except when:
1. Characterization under other than honorable conditions is authorized under the reason for separation (Enclosures 3) and is warranted by the circumstances of the case; or
2. The Secretary concerned, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual military duty ...
(c) With respect to administrative matters outside this instruction that require a characterization as honorable or general, an entry-level separation will be treated as the required characterization. This provision does not apply to administrative matters that expressly require different treatment of an entry-level separation except as provided in subparagraph 3c(1)(d) of this enclosure.
Plaintiff reads these regulations as making "clear that when a ‘characterization’ of a discharge is necessary, a soldier's uncharacterized discharge must be treated as an honorable or under honorable conditions discharge." (Doc. 18 at 8.) Plaintiff further argues that an "under other than honorable conditions" discharge is permitted only if a soldier "has been afforded the opportunity to request an administrative board action, except as provided in [separate section] regarding separation in lieu of trial by court-martial." (Doc. 18 at 8, referencing DoDI 1332.14, Enclosure 4, Section 3.b(2)(c)). Plaintiff also looks to DoD provisions concerning reservists to argue Plaintiff's separation should be treated as "under honorable conditions." (Doc. 18 at 8, referencing DoDI 1332.14, Enclosure 4, Section 3.c(1)(d)). Plaintiff argues when taken together, internal DoD Instructions "clarify that active-duty soldiers (like [Plaintiff]) are to be treated no differently than reservists being discharged ‘for cause’ when it comes to the characterization of discharge for administrative matters." (Doc. 18 at 9.)
Plaintiff's arguments are unavailing. First, Plaintiff's position would impermissibly relieve Plaintiff of the burden of proving eligibility for citizenship. Berenyi , 385 U.S. at 636-37, 87 S.Ct. 666. Second, Plaintiff's position assumes § 1440 requires USCIS to look outside of the certification explicitly required by § 1440(b). Nowhere does the statute include that requirement or even allow for it. Third, even assuming USCIS were required (or even allowed) to look beyond the certification provided by the Armed Forces and view internal DoD guidelines, the guidelines permit an honorable characterization for an entry-level separation if "clearly warranted by the presence of unusual military duty." (DoDI 1332.14, Enclosure 4, Section 3.c(1)(a)1). Here, while Plaintiff's injuries sustained during basic training are unfortunate, those injuries resulted in Plaintiff's discharge before she completed basic training. The Army thus determined it could not characterize the discharge for Plaintiff's short period of active duty service and therefore certified it as "uncharacterized." If the Army had wished to certify Plaintiff's discharge differently, it had the ability to do so. Regardless, USCIS could have no role in the military's certification. Plaintiff also argues § 1440 includes only two discharge options "under honorable conditions," which allows an applicant to naturalize, and "other than honorable," which can subject an applicant to denaturalization in certain circumstances. Plaintiff thus argues she should be afforded the reading that she was discharged "under honorable circumstances." In so arguing, Plaintiff patently disregards § 1440(b), which establishes the military's duty to certify the discharge, and relies on § 1440(c). But § 1440(c) supports the Court's reading. That section allows for revocation of naturalization of service members naturalized while on active duty but who do not complete service honorably. This provision does not affect Plaintiff, but it further corroborates the section's reservation of the privilege of expedited military naturalization to those who serve in the military for a meaningful period. Regardless, per the plain language of § 1440(c), once again the authority to make a certification lies solely in the military: "The fact that the naturalized person was separated from service under other than honorable conditions shall be proved by a duly authenticated certification from the executive department under which the person was serving at the time of separation."
Plaintiff's complaint contains several allegations concerning the Army's discharge, including Plaintiff "understood from her discussions with Army representatives that the discharge she was receiving would not be an impediment to her gaining naturalization on the basis of her military service" (Doc. 1 at 11) and that based on the number of days of her service, there was an "Army mis-designation of [Plaintiff's] discharge" (Doc. 1 at 12-13 n.3). Although the issue is not dispositive to the resolution of the motion to dismiss, the Court notes Plaintiff steadfastly maintains she makes no challenge here to the Army or to her discharge paperwork, while Defendants argue Plaintiff could have sought administrative review of the Army's determination but has not done so. (Doc. 10-1 at 20-21; Doc. 18 at 16-18.) Again, although not relevant to the case at bar, where only USCIS officials are named defendants, the Court questions (without deciding) whether the facts or issues surrounding the denial of naturalization for this former serviceperson on these facts would be more properly framed with DoD members or policymakers named as defendants. See e.g. Kirwa v. United States Dep't of Defense , 285 F.Supp.3d 21 (D.D.C. 2017) (challenging DoD policy regarding certification of honorable service). Finally, the Court notes Plaintiff does not challenge the nature or content of the Request for Certification of Military or Naval Service Form in general, nor does Plaintiff challenge her June 19, 2019 Form N-426 in particular. (See Doc. 1 at 19.)
While the Court may conduct de novo review of questions of fact and law contained in Plaintiff's application, the statute plainly states only the Armed Forces may determine the characterization of an applicant's military service. Neither party disputes the accuracy of the records, which are attached to the complaint. Therefore, the Court, like USCIS, must accept the Army's determination regarding Plaintiff's service. Because the Army's determination precludes Plaintiff from establishing her claim for relief, Plaintiff has failed to state a claim upon which relief may be granted.
In so ruling, the Court recognizes the underlying policy concern presented in the complaint. The practice of equating an "uncharacterized discharge" as a separation other than "under honorable conditions" illustrates a possible dissonance between the statute and the military's policy and practice: the statute is read to create a binary option for separation conditions ("under honorable conditions" or "under other than honorable conditions") whereas the military arguably has a middle ground (an "uncharacterized" separation), which it elevates to honorable separation only at the discretion of the Secretary. (DoDI 1332.14, Enclosure 4, Section 3.c(1)(a)1). Nonetheless, this Court is bound by the statute's plain language and by the record before it, including what that military certified to USCIS, and any such dissonance is one only Congress, and not the courts, is empowered to address.
C. Count II
Brought under the APA, Plaintiff next alleges USCIS, at the direction of Defendants, has an unconstitutional policy of treating applicants who seek naturalization pursuant to § 1440, but who have an "uncharacterized" military discharge, as being discharged "not under honorable conditions." While acknowledging "USCIS must defer to the military's assessment of discharges," Plaintiff alleges USCIS ignores the Army's certifications on Form N-426. Plaintiff further contends USCIS relied on this policy to deny her naturalization application, and that Defendants violate their own regulations and publicly available policy statements concerning acceptable military certifications of service, including discharge orders. Plaintiff asserts these and other actions violated the APA based on (1) 5 U.S.C. § 553 (notice and comment requirements), and (2) 5 U.S.C. § 552 (requiring publication in the Federal Register as to all "rules of procedure" and "statements of general policy or interpretations of general applicability formulated and adopted by the agency"). She thus alleges the final agency decision is arbitrary, capricious, and an abuse of discretion under 5 U.S.C. § 706(2).
Review under the "arbitrary and capricious standard is narrow[.]" Bowman Transp. v. Ark.-Best Freight Sys. , 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). Additionally, "[a]rbitrary and capricious" review is "highly deferential" and "[i]f an agency's determination is supportable on any rational basis, [a court] must uphold it." Org. for Competitive Markets v. USDA , 912 F.3d 455, 459 (8th Cir. 2018) (citations and internal quotations omitted). A court looks to (1) whether the agency considered those factors Congress intended it to consider; (2) whether the agency considered factors Congress did not intend it to consider; (3) whether the agency failed entirely to consider an important aspect of the problem; and (4) whether the agency decision runs counter to the evidence before it; or whether there is such a lack of a rational connection between the facts found and the decision made that the disputed decision cannot be ascribed to a difference in view or the product of agency expertise. Downer v. United States , 97 F.3d 999, 1002 (8th Cir. 1996) (citation omitted); see also Marsh v. Or. Nat. Res. Council , 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (stating a court's reversal of an agency's decision is appropriate only where the decision was not "based on a consideration of the relevant factors" or where there "has been a clear error of judgment").
USCIS's reading of the plain text of § 1440 and application of the Army's discharge characterization and certification were not a "clear error of judgment," Marsh , 490 U.S. at 378, 109 S.Ct. 1851. Nor has USCIS explanations for its decision run counter to the facts. Furthermore, "deference to an administrative agency's reasonable construction of a statute is appropriate where the agency is entrusted with the administration of the statute." Edwards v. F.A.A. , 367 F.3d 764, 768 (8th Cir. 2004) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ). "Deferring to a federal agency's interpretation of a statute is based, in part, on the expertise it possesses in implementing federal policy in the general subject area." Id. (citing Aluminum Co. of Am. v. Central Lincoln Peoples’ Util. Dist. , 467 U.S. 380, 389-90, 104 S.Ct. 2472, 81 L.Ed.2d 301 (1984) ).
Here, based on the plain language of the statute, the Court finds Plaintiff has not plausibly alleged USCIS acted arbitrarily or capriciously. Rather, as detailed above, the complaint demonstrates USCIS acted in accordance with § 1440(a) and § 1440(b). The agency explained in its decision (Doc. 1-5) the determination was based on facts in the record. There was no failure to consider "relevant factors" or clear error of judgment to support a contrary finding.
1. Plaintiff's allegations as to 5 U.S.C. § 553 fail to state a claim upon which relief may be granted
Plaintiff also claims the basis for her naturalization application denial – that an "uncharacterized" discharge does not satisfy § 1440 ’s "under honorable conditions" requirement – is "a new substantive legal requirement that is subject to the notice and comment requirements of 5 U.S.C. § 553 prior to implementation." However, consistent with the analysis as to Count I, Plaintiff's allegations do not plausibly allege USCIS's application of § 1440 is a "new substantive requirement," nor does the complaint plausibly allege USCIS's application violates the APA's notice-and-comment rulemaking regulations. As Defendant notes, the APA provides that, absent a published finding of good cause, an agency may issue a "legislative rule" only after following the notice and comment procedure described in the APA. 5 U.S.C. § 553. An agency need not, however, follow those procedures to issue "interpretative rules, general statements of policy, or rules of agency organization, procedure or practice." 5 U.S.C. § 553(b)(3)(A) ; see also Shalala v. Guernsey Memorial Hosp. , 514 U.S. 87, 99, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995). A legislative rule is one that has the force of law and creates new rights or duties, while an interpretive rule merely clarifies an existing rule and does not change law, policy, or practice. See Perez v. Mortgage Bankers Ass'n , 575 U.S. 92, 96-97, 135 S.Ct. 1199, 191 L.Ed.2d 186 (2015). Importantly, interpretive rules and rules of agency organization, procedure, or practice do not add to the substantive law that already exists in the form of a statute or legislative rule. See Hemp Indus. Ass'n v. DEA , 333 F.3d 1082, 1087 (9th Cir. 2003) ; Cent. Tex. Tel. Co-op., Inc. v. FCC , 402 F.3d 205, 213 (D.C. Cir. 2005). Plaintiff's claim fails because USCIS has not added anything to the substantive law.
Rather, Congress requires an applicant under § 1440(a) to demonstrate separation "under honorable conditions." Further, § 1440(b) establishes the military's duty to certify the characterization of the discharge. Plaintiff does not question that USCIS must defer to the Army to provide the requisite characterization of discharge. Plaintiff has not plausibly alleged that USCIS's deference is a legislative rule requiring notice and comment.
In Iowa League of Cities v. E.P.A. , 711 F.3d 844, 873 (8th Cir. 2013), the Eighth Circuit distinguished between legislative and interpretative rules, explaining that a legislative rule will be found when an agency: (1) "creates a new legal norm based on the agency's own authority to engage in supplementary lawmaking, as delegated from Congress;" or (2) "[e]xpand[s] the footprint of a regulation by imposing new requirements, rather than simply interpreting the legal norms Congress or the agency itself has previously created[.]" Id. (citations and internal quotations omitted) Here, USCIS has not invoked its authority to engage in supplemental lawmaking, and has not amended any prior legislative rule. To the contrary, USCIS has an adequate legislative basis supporting its determinations—the plain language of § 1440.
Accordingly, USCIS's deference as set out on § 1440 was not a legislative rule requiring notice and comment.
2. Plaintiff's allegations as to 5 U.S.C. § 552 fail to state a claim upon which relief may be granted
For similar reasons, the complaint fails to state a plausible claim for a violation of the APA's publication requirement. Under 5 U.S.C. § 552, an agency must "make available to the public" all "substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency." 5 U.S.C. § 552(a). Unless a person has "actual and timely notice" of such a "substantive rule," he or she "may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published." Id.
To make a claim under this statute, Plaintiff must plausibly allege she was "adversely affected" by an unpublished policy that should have been published and she did not have actual notice of the content of that policy. See Alliance for Cannabis Therapeutics v. Drug Enforcement Admin. , 15 F.3d 1131, 1136 (D.C. Cir. 1994) ; Mass. Mfg. Extension P'ship v. Locke , 723 F. Supp. 2d 27, 42 (D.D.C. 2010) ; see also McKenzie v. Bowen , 787 F.2d 1216, 1222 (8th Cir. 1986). Plaintiff's claim fails for at least two reasons. First, § 1440 put Plaintiff on notice concerning the requirements for naturalization under this path. Second, USCIS has not changed any requirement for Plaintiff to receive naturalization pursuant to § 1440. Rather, as discussed above, USCIS merely applies the plain text of § 1440 and the separation characterization that the Army offered. Therefore, Plaintiff has failed to show USCIS failed to publish a "substantive rule" or otherwise violated this portion of 5 U.S.C. § 552(a). Accordingly, the APA does not provide a legal basis to grant Plaintiff's claim for naturalization under § 1421(c).
As noted above, the Court questions (without deciding) whether the facts or issues surrounding the denial of naturalization for this former serviceperson on these facts would be more properly framed with DoD members or policymakers named as defendants.
Count II is dismissed.
D. Count III
In Count III, Plaintiff alleges Defendants violated her Constitutional rights. Noting the Uniform Rule of Naturalization clause of the Constitution states Congress has the sole power to establish criteria for naturalization, Plaintiff alleges USCIS's policy violates this clause because it creates a minimum period of service requirement under § 1440 and allows USCIS, not the military, to determine whether soldiers meet the criteria for honorable discharge, neither of which are criteria established by Congress. Second, Plaintiff alleges Defendants’ treatment of Plaintiff's discharge as "other than honorable" without providing Plaintiff with the process that accompanies such a discharge according to the DoD Instructions violates Plaintiff's Fifth Amendment right to due process. Indeed, the Constitution empowers Congress to "establish an uniform Rule of Naturalization." U.S. Const. art. I, § 8, cl. 4. To be clear, the power rests in Congress. Zivotofsky ex rel. Zivotofsky v. Kerry , 576 U.S. 1, 16, 135 S.Ct. 2076, 192 L.Ed.2d 83 (2015).
Relevant here, Congress established requirements in § 1440 for applicants no longer serving in the military. As detailed above, a discharged applicant seeking naturalization under this provision must meet the criteria set out in 8 U.S.C. § 1440. Thus, USCIS has added no requirements to § 1440 ; USCIS merely applies the plain language of the statute. For the same reasons–the lack of any arbitrary, unlawful, or unauthorized conditions set by USCIS–Plaintiff has failed to state a claim upon which relief may be granted as to the Fifth Amendment because USCIS's actions did not infringe on Plaintiff's right to due process.
Failure to satisfy § 1440 does not necessarily bar Plaintiff from the more routine path to citizenship taken by those who have not served in the Armed Forces.
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Count III is dismissed.
E. Count IV (Declaratory Relief) and Count V (Injunctive Relief)
Plaintiff alleges a separate cause of action under the Declaratory Judgment Act ("DJA"). The DJA provides in part:
In a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment
or decree and shall be reviewable as such.
The DJA is procedural in that it enlarges the range of remedies available in federal court, but it does not extend jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co. , 339 U.S. 667, 671-72, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). More to the point, availability of relief under the Declaratory Judgment Act "presupposes the existence of a judicially remediable right." Schilling v. Rogers , 363 U.S. 666, 677, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960). Given that Plaintiff's substantive claims fail, Count IV must be dismissed.
Similarly, as to Plaintiff's claim for injunctive relief, "[n]o independent cause of action for injunction exists." Plan Pros, Inc. v. Zych , No. 8:08CV125, 2009 WL 928867, at *2 (D. Neb. Mar. 31, 2009) ; see also Henke v. Arco Midcon, L.L.C. , 750 F. Supp. 2d 1052, 1059-60 (E.D. Mo. 2010) ("Injunctive relief ... is a remedy, not an independent cause of action."); Christensen v. PennyMac Loan Servs., LLC , 988 F. Supp. 2d 1036, 1046 (D. Minn. 2013) ("The claim for injunctive relief is a request for a remedy, not a separate cause of action."). Thus, to the extent Count V is an independent cause of action for "injunctive relief," it does not survive Defendant's motion to dismiss under Rule 12(b)(6).
Counts IV and V are dismissed.
IV. CONCLUSION
Accordingly, Defendants’ motion to dismiss (Doc. 10) is GRANTED , and this case is DISMISSED.