Class Action Alleges Security Clearance Policy Discriminates Against Naturalized MAVNI Program Military Personnel

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United States Department of Defense Secretary Mark Esper and U.S. Army Secretary Ryan McCarthy face a proposed class action that alleges personnel within the Military Accessions Vital to National Interest (MAVNI) Program have been subject to a series of security clearance-related “discriminatory and unconstitutional practices” aimed at U.S. citizens who naturalized following their enlistment with the program. 

The complaint alleges the defendants have prohibited personnel naturalized as U.S. citizens through the MAVNI Program from receiving security clearances during their first term of enlistment, preventing many from becoming officers. In all, Armed Forces personnel naturalized through the MAVNI program “are being treated differently from other U.S. citizens who serve in the military,” the plaintiff, a South Korea native naturalized as a U.S. citizen in August 2014, alleges. 

Filed in Virginia federal court, the 14-page complaint says the MAVNI Program was designed to tackle critical shortages of personnel in the U.S. Armed Services by allowing non-citizens to enlist in the military if they were legally present in the United States but did not yet possess a green card. Per the suit, the MAVNI Program, which began in November 2008, aimed to recruit healthcare professionals with certain U.S. medical licenses or credentials and “language enlistees” who had expertise in certain “strategic foreign languages.” 

According to the case, MAVNI enlistees were required to meet the standard enlistment requirements, with the exception that they had to score higher on the Armed Forces Qualification Test than other recruits and were deemed ineligible for any “moral” or conduct waivers. Under their enlistment contracts, MAVNI recruits were also required to apply for naturalization as U.S. citizens and were advised of this mandate during the enlistment process, the lawsuit says. 

The complaint stresses that MAVNI recruits were “assured repeatedly, both orally and in writing” that they would be afforded the same opportunities once naturalized as any other American citizen serving in the Armed Forces. According to the plaintiff, however, the Department of Defense and Army “embarked on a series of discriminatory and unconstitutional practices” against U.S. citizens who naturalized through the MAVNI program following the issuance of a September 2016 memo from Acting Under Secretary of Defense for Personnel and Readiness Peter Levine—known as the “Levine memo.” 

Through the Levine memo, the defendant prohibited naturalized U.S. citizen MAVNI soldiers from receiving security clearance during their first term of enlistment, a period that typically last six to eight years, the lawsuit alleges. Given officers must have security clearance, those barred from receiving such clearance are unable to become officers, the case says, noting that even non-sensitive branches of service often require security clearance.

“Individuals also cannot serve in many enlisted and non-commissioned officer positions without obtaining a security clearance, including almost all positions in Military Linguistics, Military Police, Military Intelligence, Signal Corps, Special Operations, Psychological Operations, the Defense Attaché System, and Civil Affairs,” the complaint reads. 

Further, the defendants expanded the MAVNI security clearance policy in January 2017 to also prohibit U.S. citizen MAVNI soldiers from applying for any position or program that required a security clearance during their first term of enlistment, the lawsuit alleges, charging that the policies were “directly contrary to prior legal precedent.”

The case goes on to say the Department of Defense allegedly withdrew the above-described security clearance policies in June 2017 after several naturalized MAVNI soldiers sued the department and moved for an injunction. In a memo issued by then-Acting Undersecretary of Defense for Personnel and Readiness A.M. Kurta, known as the “Kurta memo,” the Department of Defense relayed that enlistees in the MAVNI Program who successfully completed basic military training/boot camp and became naturalized citizens based on their military service could be considered for security clearance “on the same terms, conditions and criteria as any other U.S. citizen,” the complaint says.

Contrary to this representation, however, the defendants have continued to illegally and unconstitutionally prohibit U.S. citizen MAVNI soldiers from obtaining interim security clearances, the plaintiff alleges.

After the Department of Defense was hit with a second preliminary injunction over its apparent failure to implement its non-discriminatory MAVNI security clearance policy, the Kurta memo “still retained an express discriminatory requirement for naturalized U.S. citizen MAVNI soldiers” in search of security clearance, the lawsuit contests. Specifically, the suit takes issue with the defendants’ requirement that MAVNI soldiers must first successfully finish basic military training/boot camp, arguing that a “Catch-22” was created for those intending to become commissioned officers. From the suit:

“Defendants’ new policy prohibited U.S. citizen MAVNI soldiers seeking to become officers from applying for a security clearance until they first completed their initial officer training course while Defendants simultaneously prohibited officer candidates from attending an initial officer training course until they first received a security clearance.”

In practice, the defendants still have not withdrawn the above-described security clearance hurdles, the lawsuit claims, alleging the parties have displayed a “general animus” toward MAVNI soldiers further evidenced by “concerted and longstanding efforts” to keep MAVNI personnel from receiving the expressly promised opportunity to become U.S. citizens. From the complaint:

“Specifically, Defendants prevailed upon the United States Citizenship and Immigration Services (USCIS) not to process naturalization applications from MAVNI soldiers contrary to USCIS’s express statutory duties (including 8 U.S.C. § 1447(b), which requires that USCIS decide naturalization applications within 120 days following the naturalization interview) pending Defendants’ completion of a MAVNI “Military Service Suitability Review” (MSSR) and MAVNI “Military Service Suitability Determination” (MSSD) for each MAVNI soldier. Defendants made this unlawful request, and USCIS acceded to this unlawful request, despite the fact that (1) MSSRs and MSSDs are conducted under substantially different criteria, and for different purposes, than those applicable to naturalization applications, and (2) Defendants are not even attempting to complete MSSDs for most MAVNI soldiers.”

The plaintiff looks to represent a class of naturalized U.S. citizens who entered the U.S. Army through the MAVNI Program and for whom a request for adjudication of a security clearance has been made to the Department of Defense Central Adjudication Facility but not yet adjudicated.

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