Our winners this week are Fried, Frank, Harris, Shriver & Jacobson partner Douglas Baruch and special counsel Jennifer Wollenberg, who scored a major win on behalf of thousands of U.S. Army soldiers seeking to exercise their right to become U.S. citizens.  

Working pro bono, the duo have brought three class actions against the Department of Homeland Security and the Department of Defense after the government in late 2016 began interfering with the naturalization of soldiers who were promised an expedited path to citizenship upon enlistment.  Late last week, U.S. District Judge Ellen Huvelle in the District of Columbia granted summary judgment to the Fried Frank team on the first of the cases.

Baruch and Wollenberg discussed their work with Lit Daily.

Lit Daily: Who are your clients (and what is MAVNI?)

Baruch and Wollenberg: All of our clients and class members are extraordinary individuals. They enlisted in the U.S. Army from 2013 to 2016 as lawfully present, non-U.S. citizens through the Military Accessions Vital to the National Interest program.  

The “MAVNI” program was a U.S. military recruitment initiative that purposefully sought out non-citizen medical professionals and persons with certain foreign language skills because those military needs were not being met through recruitment of U.S. citizens.

What circumstances gave rise to the litigation?

As enlisted U.S. service members, MAVNIs under federal law are provided with an expedited path to U.S. citizenship. Between the program's inception in 2008 and 2016, over 10,000 MAVNIs became naturalized U.S. citizens as a result of their military service, most within a few months of enlistment. 

But in late 2016, U.S. Citizenship and Immigration Services abruptly stopped adjudicating MAVNI naturalization applications. That action—which wasn't explained at the time—left thousands of MAVNIs in immigration limbo and at risk. 

In May 2017, our litigation team launched our first class action lawsuit on behalf of MAVNIs, the Nio case, to challenge the USCIS policy that was preventing these soldiers from exercising their right to become U.S. citizens. 

When and how did you get involved? Is the work pro bono?

Our firm has a long and storied history of representing individuals and groups of individuals in significant immigration matters on a pro bono basis. One of our colleagues, Karen Grisez, who is a nationally recognized expert on immigration law, heard about the plight of the MAVNIs and brought it to the attention of litigators in our firm's D.C. office.  

We were eager to help these soldiers protect and vindicate their rights through the maze of immigration and military laws and regulations. The talent and resources that we called upon to build our team included federal court litigators and incredibly responsive and supportive legal support staff.

This team is precisely what this engagement called for, and this is the type of case that so-called “Big Law” firms—and, for the most part, only “Big Law” firms—are well-situated to handle on a pro bono basis.

What are your overarching arguments in the lawsuits?

Most of the claims in our three related MAVNI cases arise under the Administrative Procedure Act, as they challenge USCIS and Department of Defense policies as unlawful, arbitrary and capricious, or as causing an unreasonable delay in the naturalization process. 

The soldiers also have constitutional claims, including violation of the Uniform Rule of Naturalization clause and failure to provide due process. The primary litigation goal has remained constant throughout—to remove the USCIS and DoD roadblocks that have been delaying and preventing these soldiers from becoming naturalized U.S. citizens as they were promised.

How has the litigation unfolded? Take us through some of the milestones.

We are counsel in three related MAVNI cases, all pending in the U.S. District Court for the District of Columbia before Judge Huvelle. 

The first case—Nio—filed in May 2017, is against DHS/USCIS and the Defense Department. The second case—Kirwa—filed in August 2017, is against the Defense Department. The court has certified Nio and Kirwa as class actions, and we have been appointed as class counsel. 

In October 2017, the Court entered preliminary injunctions in both Nio and Kirwa, blocking a litigation-driven Defense Department policy that would have prevented soldiers from obtaining the DoD paperwork necessary to file their (or maintain their already-filed) applications for naturalization. Those injunctions remain in effect to this day and have benefited more than 2,000 soldiers. 

The third action—Calixto—filed in June 2018, recently survived motion to dismiss efforts by the Army and is pending class certification. In that case, MAVNIs are challenging DoD's attempts to summarily discharge MAVNIs in violation of military regulations and due process.  

How has the government responded to the litigation?

Unlike most federal court litigation, where the dispute concerns some event in the past and the facts are static, the MAVNI litigation has been characterized by an ever-shifting legal and factual landscape. In response to the litigation, both USCIS and DoD actively changed policies and implemented new ones. 

These actions led not only to new lawsuits, but multiple amendments of existing pleadings, multiple preliminary injunction filings, and constant efforts to keep abreast of the changes and properly raise them in the litigation. 

The court managed these developments effectively, directing the government to file regular reports on the status of the soldiers' naturalization efforts and changes in agency policies. We believe this reporting was instrumental in enabling over 1,200 MAVNIs to become naturalized U.S. citizens in the course of the litigation. 

Tell us about the decision last week in the Nio case. What to you are some of the most significant aspects of Judge Huvelle's opinion granting your motion for summary judgment?

The court's decision removes one of the most significant obstacles that has blocked the remaining MAVNIs from becoming U.S. citizens. Specifically, the court set aside the USCIS policy of delaying naturalization decisions until the Defense Department makes so-called military service suitability recommendations and determinations on these soldiers. 

The Court held that these factors do not align with naturalization eligibility criteria and that once DoD completed enhanced background investigations of MAVNIs—which has happened for all of the remaining MAVNI soldiers awaiting naturalization—it is arbitrary and capricious for USCIS to delay naturalization decisions pending the follow-on military service suitability recommendations and determinations, or MSSRs/MSSDs. 

As a result, with perhaps a few rare exceptions, the remaining Nio class members should promptly have their naturalization applications decided by USCIS.

What have been some of the biggest challenges in litigating these cases? How have you responded?

We faced three significant challenges. First, as already mentioned, both USCIS and DoD constantly modified their policies or enacted new ones in response to the litigation. We had to adjust on the fly, and amend and bring new claims to match the agencies' efforts. 

Second, because most of the causes of action arose under the Administrative Procedure Act, we did not have access to traditional methods of civil discovery. So, we had to find other ways to expose, test, and rebut the government's actions, many of which were not voluntarily disclosed to us or to the court. 

Third, as class counsel, we were inundated with questions and information from the thousands of class members in the three cases. This required an all-hands approach from the litigation team, who had to be fully aware of developments and responsive to our soldier-clients, many of whom were facing uncertainty and unwarranted suffering due to the challenged policies.

What have you found most gratifying about the representation?

During the course of the litigation, over 1,200 of our clients have become naturalized U.S. citizens. 

Hundreds of these individuals have shared naturalization ceremony photographs with us and have otherwise expressed their thanks to us and the court and legal system that gave them a voice and allowed them to pursue their rights.  And, even MAVNIs who still are unable to apply for naturalization or have yet to be naturalized have expressed their gratitude for giving them hope.

Who are the other members of your team and how have you worked together? 

Baruch: If we haven't made this clear already, this has been a team effort over the past two years. The team has been led and managed on a daily basis by Jenny Wollenberg, who—in addition to her other client responsibilities—has devoted several thousand hours of time to the cause and has communicated directly with hundreds of MAVNIs. 

Several valued team members have departed the firm over the past two years. The remaining litigators, in addition to Jenny and me, are: Kayla Stachniak Kaplan, Neaha Raol, Kate St. Romain, Melis Kiziltay Carter, Brendan McNamara, Elizabeth LoPresti, Sam Johnson, Ron Williams, and Brian Stuart. We've also enjoyed invaluable input and support from Karen Grisez and immigration and military law lawyers and advocacy groups across the country.

What happens next?

We're hopeful that this decision will lead the government to work with us to implement the decision and get much needed relief to these deserving soldiers. 

What do you hope will be the legacy of these cases?

Without a doubt, the legacy of these cases is going to be the incredible contributions that the MAVNIs will make to society as U.S. citizens and U.S. Army soldiers.