Kuang v. U.S. Dep't of Def. (340 F. Supp. 3d 873, 2018)

The party seeking class certification bears the burden of demonstrating by a preponderance of the evidence that all four requirements of Rule 23(a) and at least one of the three requirements under Rule 23(b) are met. See Dukes , 564 U.S. at 350-51, 131 S.Ct. 2541.

B. Discussion

As modified, Plaintiffs' proposed class consists of:

[A]ll persons who (i) are lawful permanent residents of the United States; (ii) have signed an enlistment contract with the U.S. military; and (iii) pursuant to Defendants' October 13 memo, have not been permitted to begin initial entry training, commonly referred to as "boot camp," pending completion of their MSSDs and NSDs.

ECF No. 40-1 at 2 (footnote omitted).

1. Numerosity

Rule 23(a)(1) requires that the class be "so numerous that joinder of all members is impracticable." The record indicates that roughly 5,000 LPRs enlist each year. ECF No. 22-1 at 4. Plaintiffs estimate, and DoD does not dispute, that an estimated 3,500 of those LPRs fell within the class definition as of August 1, 2018. ECF No. 31 at 11.

The Court therefore concludes that this requirement is met.

2. Commonality

A Rule 23 class is certifiable only if "there are questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). For the purposes of Rule 23(a)(2), "even a single common question" is sufficient. Wal-Mart , 564 U.S. at 359, 131 S.Ct. 2541 (citation and internal alterations omitted). The common contention, however, "must be of such a nature that it is capable of classwide resolution - which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. at 350, 131 S.Ct. 2541. "What matters to class certification ... is not the raising of common 'questions' - even in droves - but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation." Id. (alteration in original) (citation omitted).

Here, Plaintiffs' claims are primarily facial challenges to the validity of DoD's policy, which applies equally on a classwide basis. Whether DoD's policy is valid, and the scope of Plaintiffs' entitlement to relief, if any, are questions eminently capable of classwide resolution. See Garcia v. Johnson , No. 14-CV-01775-YGR, 2014 WL 6657591, at *14 (N.D. Cal. Nov. 21, 2014).

Accordingly, the Court holds this requirement is met.

3. Typicality

In certifying a class, courts must find that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed R. Civ. P. 23(a)(3). "The purpose of the typicality requirement is to assure that the interest of the named representative aligns with the interests of the class." Hanon v. Dataproducts Corp. , 976 F.2d 497, 508 (9th Cir. 1992). "The test of typicality 'is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.' " Id. (quoting Schwartz v. Harp , 108 F.R.D. 279, 282 (C.D. Cal. 1985) ).

The Court finds that proposed class representatives Jiahao Kuang and Deron Cooke are typical of the class they seek to represent. As discussed above, this action is based on a single course of conduct, i.e. DoD's adoption of the October 13 Memo. Moreover, as a result of this conduct, named Plaintiffs and putative class members have all suffered, and continue to suffer, the same general injury in the form of delayed shipment to basic training. See Parsons v. Ryan , 754 F.3d 657, 685 (9th Cir. 2014).

4. Adequacy

The Court must also find that "the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). In considering the adequacy of the proposed class representatives, the Court addresses two questions: "(a) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (b) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" In re Mego Fin. Corp. Sec. Litig. , 213 F.3d 454, 462 (9th Cir. 2000). This requirement " 'tend[s] to merge' with the commonality and typicality criteria of Rule 23(a)." Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 626 n.20, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (quoting Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 157 n.13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) ). Among other functions, these requirements serve as ways to determine "whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Falcon , 457 U.S. at 157 n.13, 102 S.Ct. 2364.

Here, named Plaintiffs have a similar alleged injury as the rest of the proposed class, and their claims are not based on any conduct that is unique to them. There are no apparent conflicts between named Plaintiffs, their counsel, and the proposed class, nor is there any reason to believe that they will not prosecute the action vigorously or adequately protect the absent class members' interests. See id.

Therefore, the Court finds that Plaintiffs have established that this requirement is satisfied.

5. Rule 23(b)

In addition to meeting the four requirements of 23(a), the proposed class must satisfy one of the Rule 23(b) requirements.

Rule 23(b)(2) requires that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). " Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant." Wal-Mart , 564 U.S. at 360, 131 S.Ct. 2541. "These requirements are unquestionably satisfied when members of a putative class seek uniform injunctive or declaratory relief from policies or practices that are generally applicable to the class as a whole." Parsons , 754 F.3d at 688 (citing Rodriguez v. Hayes , 591 F.3d 1105, 1125 (9th Cir. 2011) ). "That inquiry does not require an examination of the viability or bases of the class members' claims for relief, does not require that the issues common to the class satisfy a Rule 23(b)(3) -like predominance test, and does not require a finding that all members of the class have suffered identical injuries." Id. "The fact that some class members may have suffered no injury or different injuries from the challenged practice does not prevent the class from meeting the requirements of Rule 23(b)(2)." Rodriguez , 591 F.3d at 1125.

Here, Plaintiffs seek unitary declaratory and injunctive relief related to the October 13 Memo. Compl. ¶¶ 120-121. The Court finds that this relief, if granted, would be appropriate to the class as a whole. Therefore, this requirement is met. See Parsons , 754 F.3d at 688.

Because the Court finds that the class is appropriately certified under Rule 23(b)(2), it need not address the requirements of Rule 23(b)(1)(A). See Reyes v. Bakery & Confectionery Union & Indus. Int'l Pension Fund , No. 14-CV-05596-JST, 2015 WL 5569462, at *3 (N.D. Cal. Sept. 22, 2015).

6. Appointment of Class Counsel

Plaintiffs also seek appointment of their attorneys as class counsel. ECF No. 31 at 17-18.

Under Rule 23(g), which governs the appointment of class counsel, the Court must consider: (1) "the work counsel has done in identifying or investigating potential claims in the action"; (2) "counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action"; (3) "counsel's knowledge of the applicable law;" and (4) "the resources that counsel will commit to representing this class." Fed. R. Civ. P. 23(g)(1)(A). In addition, the Court "may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class." Fed. R. Civ. P. 23(g)(1)(B).

The Court concludes that Plaintiffs' counsel should be appointed class counsel. Counsel have substantial experience in class actions and other complex civil litigation. See ECF No. 32 ¶¶ 3, 5-6; ECF No. 33 ¶¶ 3-6, 8-9, 11-12. Counsel have vigorously prosecuted this case thus far, see ECF No. 32 ¶ 9; ECF No. 33 ¶ 14, and there is no evidence before the Court that they will not continue to do so. Nor is there any evidence that counsel has interests with conflict those of the class. See Marsh v. First Bank of Delaware , No. 11-cv-05226-WHO, 2014 WL 554553, at *15 (N.D. Cal. Feb. 7, 2014). Accordingly, the Court concludes that the Rule 23(g) factors are met.

7. Conclusion

For the foregoing reasons, the Court hereby certifies a class defined as follows:

All persons who

(i) are lawful permanent residents of the United States;

(ii) have signed an enlistment contract with the U.S. military; and

(iii) pursuant to Defendants' October 13 memo, have not been permitted to begin initial entry training, commonly referred to as "boot camp," pending completion of their MSSDs and NSDs.

Plaintiffs Jiahao Kuang and Deron Cooke are appointed Class Representatives.

Plaintiffs' counsel, Latham & Watkins LLP, the American Civil Liberties Union of Southern California, and the American Civil Liberties Union of Northern California, are appointed Class Counsel.

III. MOTION TO DISMISS

The Court next considers DoD's motion to dismiss. ECF No. 42.

A. Legal Standard

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." While a complaint need not contain detailed factual allegations, facts pleaded by a plaintiff must be "enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter that, when accepted as true, states a claim that is plausible on its face. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. While this standard is not a probability requirement, "[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal quotation marks and citation omitted). In determining whether a plaintiff has met this plausibility standard, the Court must "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable" to the plaintiff. Knievel v. ESPN , 393 F.3d 1068, 1072 (9th Cir. 2005).

B. Discussion

DoD first urges the Court to dismiss this action wholesale, arguing that the military considerations involved render the entire case nonjusticiable. ECF No. 42 at 25-28. Alternatively, DoD argues that Plaintiffs have failed to state a claim under equal protection or substantive due process.

DoD also contends that Plaintiffs' APA claims are unreviewable because they are committed to agency discretion by law, pursuant to 5 U.S.C. § 701(a)(2). Id. at 39. DoD further argues in the alternative that Plaintiffs have failed to state a claim under either § 706(1) or § 706(2), at least in part.

1. Nonjusticiability

The Constitution vests Congress and the President with "broad constitutional power" for establishing the U.S. armed forces and employing them for the protection of the United States's security. Schlesinger v. Ballard , 419 U.S. 498, 510, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975) (citing U.S. Const. art. I § 8 cls. 12-14, art. II § 2 cl.1). Courts therefore give "a healthy deference to legislative and executive judgments in the area of military affairs." Rostker v. Goldberg , 453 U.S. 57, 66, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981). In so doing, however, the Supreme Court has cautioned that neither the President nor "Congress is free to disregard the Constitution when it acts in the area of military affairs." Id. at 67, 101 S.Ct. 2646.

In evaluating such claims, a court must "give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest," Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (quoting Goldman v. Weinberger , 475 U.S. 503, 507, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986) ), or "the composition, training, equipping, and control of a military force," Gilligan v. Morgan , 413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973).

a. Mindes Test

To determine whether a challenge to an internal military decision is justiciable, the Ninth Circuit has generally applied a version of the test first articulated in Mindes v. Seaman , 453 F.2d 197 (5th Cir. 1971), and adopted in Wallace v. Chappell , 661 F.2d 729 (9th Cir. 1981), rev'd on other grounds sub nom. Chappell v. Wallace , 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). Application of the Mindes test is not jurisdictional in nature; rather, it represents "a prudential judgment that the military's decision should not be reviewed in a judicial forum" and is equivalent to a failure to state a claim upon which relief can be granted. Khalsa v. Weinberger , 779 F.2d 1393, 1396 (9th Cir.), reaff'd , 787 F.2d 1288 (1985).

Under this test, "an internal military decision is unreviewable unless the plaintiff alleges (a) violation of [a recognized constitutional right], a federal statute, or military regulations; and (b) exhaustion of available intraservice remedies." Wenger v. Monroe , 282 F.3d 1068, 1072 (9th Cir. 2002), as amended on denial of reh'g and reh'g en banc (Apr. 17, 2002) (alteration in original) (quoting Khalsa , 779 F.2d at 1398 ). If those prerequisites are met, a court then determines whether judicial review is appropriate by weighing four factors: "(1) The nature and strength of the plaintiff's claim; (2) The potential injury to the plaintiff if review is refused; (3) The extent of interference with military functions; and (4) The extent to which military discretion or expertise is involved." Wenger , 282 F.3d at 1072 (citation omitted). Courts generally consider the third and fourth factors together. Id. at 1075.

b. Applicability of Mindes Test

As a threshold matter, the parties dispute whether the Mindes test applies.

In arguing that it does, Defendants place great weight on Khalsa. In that case, an applicant for military service, who was a member of the Sikh faith, brought constitutional and APA challenges to the Army's appearance regulations. 779 F.2d at 1394-95. The applicant argued that Mindes did not apply, reasoning that the Army's regulations were "not 'internal' in scope because they effectively prevent[ed] certain citizens from enlisting." Id. at 1396. The court rejected this argument, concluding that regulations governing soldiers' appearance were clearly internal, and opining that "[a]lmost any regulation may cause a particularly sensitive civilian to decide that he or she could not take the statutory enlistment oath to follow all orders." Id. at 1397. The court also cited with approval out-of-circuit cases applying the Mindes test to regulations prohibiting single parents with custody of minor children from enlisting. Id. at 1396. Khalsa thus strongly suggests that a policy governing the processing of background investigations is an internal decision subject to Mindes. And contrary to Plaintiffs' assertion, ECF No. 46 at 14, the Khalsa court was clear that "the Mindes test also applies to statutory claims against the military," including the APA challenge at issue there. 779 F.2d at 1401.

Plaintiffs argue that "[i]n considering the reviewability of APA claims in the military context, courts typically have not considered the Mindes factors," citing Garrett v. Lehman , 751 F.2d 997, 1006 (9th Cir. 1985) and Kirwa v. U.S. Dep't of Def. , 285 F.Supp.3d 21, 35 (D.D.C. 2017). ECF No. 46 at 14. But neither Garrett nor Kirwa even mentions Mindes. ECF No.

46 at 14. And while the Ninth Circuit has sometimes declined to apply the Mindes test to the facial validity (constitutionally or otherwise) of a military regulation or policy, it has never overruled Khalsa.

Not only is Khalsa still good law, but Plaintiffs have provided no good way to distinguish the reviewability of the regulations in Khalsa from the policy at issue here. Accordingly, the Court must apply the Mindes test. In applying that test, the Court takes into account the Ninth Circuit's observation that, notwithstanding its deference to the military, it has "consistently entertained servicemembers' constitutional challenges to military policies on the merits." Wilkins v. United States , 279 F.3d 782, 788 (9th Cir. 2002) ; see also Pruitt v. Cheney , 963 F.2d 1160, 1166 (9th Cir. 1991) (cautioning that "military decisions by the Army are not lightly to be overruled by the judiciary" but explaining that this deference is "best applied in the process of judging whether the reasons put forth on the record for the Army's discrimination against [plaintiff] are rationally related to any of the Army's permissible goals").

Because DoD agrees that the two threshold elements are met, ECF No. 42 at 27, the Court turns to the four Mindes factors.

c. Nature and Strength of Claims

Here, the nature of Plaintiffs' claims favors review. Claims of a constitutional nature are "normally more important than those having only a statutory or regulatory base" for purposes of this factor. Khalsa , 779 F.2d at 1399 (quoting Mindes , 453 F.2d at 201 ). Further, Plaintiffs claim that DoD has arbitrarily subjected them to substantial delays in their ability to begin their military careers. Unlike a "haircut regulation," this is not at "the least significant end of the constitutional scale." Khalsa , 779 F.2d at 1399. Rather, it significantly "impedes the ability of [LPRs] to serve in the military." Serv. Women's Action Network v. Mattis ("SWAN") , 320 F.Supp.3d 1082, 1093 (N.D. Cal. 2018).

The strength of Plaintiffs' claims also supports review. As discussed in greater detail below, this is not a case where the "claims are meritless." Christoffersen , 855 F.2d at 1443 ; see also Khalsa , 779 F.2d at 1399 (claim failed under Ninth Circuit precedent denying similar claim under "highest possible level of scrutiny"); Gilliam v. Miller , 973 F.2d 760, 764 (9th Cir. 1992) (holding that Mindes test barred review of APA claim where defendants did not act in federal capacity, and plaintiffs therefore could not state a claim). "Where a facially sufficient claim of violation of the right [alleged] is involved, the first Mindes factor favors review." Sandidge v. Washington , 813 F.2d 1025, 1026 (9th Cir. 1987). Here, Plaintiffs have demonstrated not only facially sufficient claims, but at this stage, have shown a likelihood of success on the merits of those claims.

Accordingly, the first Mindes factor weighs in Plaintiffs' favor.

d. Potential Injury

Here, Plaintiffs are a class of LPRs who allege that, because of the challenged policy, they are subject to delays averaging at least 350 days before they can enter military service. See Compl. ¶¶ 25-28. As explained in greater detail below, the Court concludes that this potential injury supports review.

DoD contends that courts have traditionally given "little weight to the injury flowing from the denial of enlistment." ECF No. 42 at 27 (quoting Khalsa , 779 F.2d at 1399 ). Here, however, Plaintiffs are not denied the right to enlist, but have already signed enlistment contracts. Rather than simply "having to choose another career," Khalsa , 779 F.2d at 1400, Plaintiffs allege that they are stuck in limbo where both their military and interim career prospects are impaired. See Compl. ¶ 74; cf. Sandidge , 813 F.2d at 1027 (finding "claims of adverse impact on other job opportunities ... speculative" where plaintiff had not applied for a single job); Sebra v. Neville , 801 F.2d 1135, 1142 (9th Cir. 1986) (finding "inconvenience of moving [plaintiff's] household" for military transfer not significant where "he has not been demoted or discharged").

Moreover, the delay in Plaintiffs' ability to enter active service delays their ability to obtain the expedited naturalization available to service members who enter basic training. Compl. ¶ 75; 8 U.S.C. § 1440(a) ; cf. Kirwa , 285 F.Supp.3d at 42 ("[D]elaying naturalization applications after applicants have been promised an expedited path to citizenship constitutes irreparable harm."). This goes beyond the mere economic injury that "the Ninth Circuit has recognized ... is enough to establish an injury for purposes of the second Mindes factor." SWAN , 320 F.Supp.3d at 1094 (citing Christoffersen , 855 F.2d at 1444 ).

The Court's conclusion is bolstered by the size of the class represented by Plaintiffs. As noted above, Plaintiffs represent, and DoD does not dispute, that they represent a class of at least 3,500 LPRs who are subject to this injury. ECF No. 31 at 11. Here, the number of service members affected multiplies the potential injury if the Court were to refuse review. Common sense dictates that the Court consider the number of persons affected in determining potential injury. In the event that Plaintiffs' underlying claims are meritorious, all of those LPRs, and all future LPR enlistees will be unjustly subjected to the injuries identified above. When faced with situations where large groups of service members might be injured by potentially unconstitutional policies, "[t]he Ninth Circuit has consistently entertained [their] constitutional challenges to military policies on the merits." Wilkins , 279 F.3d at 788.

The Court thus concludes that the second Mindes factor supports review.

e. Interference and Military Expertise

The SWAN court provided a helpful synthesis of the governing precedent relevant to the third and fourth Mindes factors. The court explained that "a proper assessment of the degree of interference threatened by a lawsuit is informed by whether the Court will be required to scrutinize particular personnel decisions (such as an assignment) by many decisionmakers (as in Gonzalez [v. Dep't of Army , 718 F.2d 926 (9th Cir. 1983) ] ) or called upon to take on a comprehensive, ongoing supervisory role, displacing military management over a broad range of policy decisions (as in Gilligan [, 413 U.S. 1, 93 S.Ct. 2440] )." SWAN , 320 F.Supp.3d at 1095. In Gonzalez , for instance, the plaintiff argued that he had been subject to intentional race discrimination in promotion decisions, and so plaintiff would have to be able to examine his superior officers over a ten-year period "to determine the grounds and motives for their ratings" in performance reviews. 718 F.2d at 930 ; see also Sandidge , 813 F.2d at 1027 ("The officers who evaluated Sandidge would have to be examined to determine the grounds and motives for their ratings of him, and other evidence of his performance would have to be gathered for the year in question."). In Gilligan , plaintiffs requested that the district court "establish standards for the training, kind of weapons and scope and kind of orders to control the action of the National Guard," as well as "assume and exercise a continuing judicial surveillance" to ensure compliance with those standards. 413 U.S. at 6, 93 S.Ct. 2440.

The Court further agrees with the SWAN court that the concerns underlying those scenarios apply with far less force when plaintiffs request that "discrete policies be held unconstitutional and thereby enjoined." 320 F.Supp.3d at 1095. The Court acknowledges that, unlike in the gender integration issues in SWAN , id. at 1097, the military undoubtedly has particular expertise in conducting military background investigations and making national security determinations and is vested with a corresponding discretion in those endeavors. ECF No. 52 at 11.

But DoD overstates the extent of interference judicial review would create here. As will become clear below, Plaintiffs' main claim, although brought under multiple doctrines, is that DoD's policy lacks adequate justification. If the Court agrees, it will not mean that DoD must "ignore the national security concerns that gave rise to the October 13 Memo." ECF No. 42 at 28. Rather, DoD will have to adopt a policy that is justified by its purported concerns. See City & County of San Francisco v. Trump , 897 F.3d 1225, 1244 (9th Cir. 2018) ("Once a constitutional violation is found, a federal court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional violation.") (quoting Hills v. Gautreaux , 425 U.S. 284, 293-94, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976) ). And "given the equitable nature of injunctive relief," courts routinely "tailor a remedy to ensure that it" does not unduly burden important interests. McCullen v. Coakley , --- U.S. ----, 134 S.Ct. 2518, 2538, 189 L.Ed.2d 502 (2014).

DoD is correct that reviewing Plaintiffs' challenge will inevitably involve some judicial evaluation of areas of military expertise, but that is why the Court's deference is "best applied in the process of judging whether the reasons put forth on the record for [DoD's] discrimination against [LPRs] are rationally related to any of [DoD's] permissible goals." Pruitt , 963 F.2d at 1166. DoD does not contend that such deferential review is logistically impracticable in this case, just that it is unwarranted. Moreover, DoD concedes that such review would be appropriate, notwithstanding the asserted degree of interference, were the challenged policy a sufficiently egregious constitutional violation. ECF No. 52 at 12 (resting its argument for lack of reviewability on the asserted weakness of Plaintiffs' argument). As explained above, the Court's initial evaluation of the merits and the potential injury to Plaintiffs differs markedly from DoD's analysis.

Considering all the Mindes factors, the Court finds it prudent to review Plaintiffs' claims.

2. Equal Protection

The Court next addresses whether Plaintiffs have adequately stated a claim under equal protection.

"The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws." Windsor , 570 U.S. at 774, 133 S.Ct. 2675 (citing Bolling v. Sharpe , 347 U.S. 497, 499-500, 74 S.Ct. 693, 98 L.Ed. 884 (1954) ); see also Adarand Constructors, Inc. v. Pena , 515 U.S. 200, 224, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) ("Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment." (citation omitted) ). While "[t]he first step in equal protection analysis is to identify the [government's] classification of groups," Wilson v. Lynch , 835 F.3d 1083, 1098 (9th Cir. 2016) (citation omitted), the parties do not dispute that the October 13 Memo draws a facial classification based on whether an enlisted service member is a U.S. citizen or an LPR, see ECF No. 22-2 at 2. The Court therefore proceeds to decide the level of scrutiny that applies. See Wilson , 835 F.3d at 1098.

a. Level of Scrutiny

The Supreme Court has long recognized aliens as a "prime example of a 'discrete and insular' minority for whom ... heightened judicial solicitude is appropriate" in the equal protection analysis. Graham v. Richardson , 403 U.S. 365, 372, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (citing United States v. Carolene Prods. Co. , 304 U.S. 144, 152-53 n.4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) ); see also Hampton v. Mow Sun Wong , 426 U.S. 88, 102, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976) (observing that aliens "are already subject to disadvantages not shared by the remainder of the community," such as, among other things "not [being] entitled to vote"). Accordingly, "state classifications based on alienage are subject to strict scrutiny review." Korab v. Fink , 797 F.3d 572, 577 (9th Cir. 2014).

Strict scrutiny does not apply here, however, because "the Fourteenth Amendment's limits on state powers are substantially different from the constitutional provisions applicable to the federal power over immigration and naturalization." Mathews v. Diaz , 426 U.S. 67, 86-87, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). Where the federal government acts, "overriding national interests may provide a justification for a citizenship requirement in the federal service even though an identical requirement may not be enforced by a State" without violating equal protection. Hampton , 426 U.S. at 101, 96 S.Ct. 1895. But the Supreme Court has rejected "the extreme position" that "the federal power over aliens is so plenary that any agent of the National Government may arbitrarily subject all resident aliens to different substantive rules from those applied to citizens." Id. Instead, "federal statutes regulating alien classifications are subject to the easier-to-satisfy rational-basis review." Korab , 797 F.3d at 577 (citing Hampton , 426 U.S. at 103, 96 S.Ct. 1895 ).

Plaintiffs concede that strict scrutiny does not apply, but they argue that courts nonetheless "apply a more 'active' form of rational basis review 'when a classification adversely affects unpopular groups.' " ECF No. 46 at 17 (quoting Diaz v. Brewer , 656 F.3d 1008, 1012 (9th Cir. 2011) ). The distinguishing feature of this type of "active" review is that courts examine "whether the government ha[s] established on the record a rational basis for the challenged discrimination." Pruitt , 963 F.2d at 1166 (citing High Tech Gays , 895 F.2d at 576-77 ).

Plaintiffs' cases do not establish that "active" rational basis review applies to federal legislative classifications based on citizenship. Because the federal government's authority in this arena is "substantially different," Mathews , 426 U.S. at 87, 96 S.Ct. 1883, Plaintiffs' reliance on equal protection cases involving state action under the Fourteenth Amendment is misplaced. See ECF No. 46 at 17; Arizona Dream Act Coal. v. Brewer , 757 F.3d 1053, 1065-67 (9th Cir. 2014) (state law); Dandamudi v. Tisch , 686 F.3d 66, 72 (2d Cir. 2012) (same); Diaz , 656 F.3d at 1010 (same).

If this case involved an equal protection challenge to a legislative act of Congress, the Court would be inclined to agree with DoD that the appropriate "question ... is whether there is any conceivable rational basis justifying [the October 13 Memo's] distinction." F.C.C. v. Beach Commc'ns, Inc. , 508 U.S. 307, 309, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). Under this standard, the government " 'has no obligation to produce evidence to sustain the rationality of a statutory classification'; '[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.' " Aleman v. Glickman , 217 F.3d 1191, 1201 (9th Cir. 2000) (quoting Heller v. Doe , 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) ).

But it is not so clear that the government bears no evidentiary burden in the context of agency action. For instance, the Beach Communications Court explained that, "because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature." 508 U.S. at 315, 113 S.Ct. 2096. In contrast, it is a bedrock principle of administrative law that "an agency's action must be upheld, if at all, on the basis articulated by the agency itself. " Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 50, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (emphasis added); see also Encino Motorcars, LLC v. Navarro , --- U.S. ----, 136 S.Ct. 2117, 2127, 195 L.Ed.2d 382 (2016) ("Whatever potential reasons the Department might have given, the agency in fact gave almost no reasons at all. In light of the serious reliance interests at stake, the Department's conclusory statements do not suffice to explain its decision."); SEC v. Chenery , 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) (explaining the "simple but fundamental rule of administrative law" that "a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency"). Indeed, when the Ninth Circuit has applied rational basis scrutiny to equal protection challenges to military regulations , it has "required the government to establish on the record that its policy had a rational basis." Pruitt , 963 F.2d at 1166.

The Court need not directly resolve this issue here, because Plaintiffs claim both that DoD's policy lacks a rational basis under equal protection principles and, for that same reason, is also arbitrary and capricious in violation of the APA, 5 U.S.C. § 706(2)(A). See Compl. ¶¶ 90-92, 111-12. The Ninth Circuit has explained how to proceed when confronted with this situation: "[T]he equal protection argument can be folded into the APA argument, since no suspect class is involved and the only question is whether the defendants' treatment of [LPRs] was rational (i.e., not arbitrary and capricious)." Ursack Inc. v. Sierra Interagency Black Bear Grp. , 639 F.3d 949, 955 (9th Cir. 2011) ; see also 5 U.S.C. § 706(2)(B) (requiring a court to set aside agency action "contrary to constitutional right, power, privilege, or immunity"). The Court then examines whether "[t]he record indicates that [the government] had a rational basis" for its decision. Ursack , 639 F.3d at 958 (emphasis added); see also Grant Med. Ctr. v. Hargan , 875 F.3d 701, 708 (D.C. Cir. 2017) ("Accordingly, we consider [the equal protection and APA] arguments together, reversing only if the agency offers insufficient reasons for treating similar situations differently."); Nazareth Hosp. v. Sec'y U.S. Dep't of Health & Human Servs. , 747 F.3d 172, 180 (3d Cir. 2014) (holding that "[r]eview of an equal protection claim in the context of agency action" requires the court to "consider whether the Secretary set forth a satisfactory, rational explanation for her actions here"); Cooper Hosp. / Univ. Med. Ctr. v. Burwell , 179 F.Supp.3d 31, 47 (D.D.C. 2016), aff'd sub nom. Cooper Hosp. Univ. Med. Ctr. v. Price , 688 F. App'x 11 (D.C. Cir. 2017) (explaining that "if the challenge is to an agency action, the equal-protection challenge is subsumed within the APA challenge," but "[w]hen the disparate treatment is the result of congressional action ... both the burden and the permissible kinds of argument shift in favor of the government").

b. Fit

DoD does not dispute that the October 13 Memo facially discriminates against LPRs. Rather, in support of its motion to dismiss, DoD argues exclusively that this discrimination is supported by a rational basis. ECF No. 42 at 31-34. As just explained, this argument requires the Court to consider whether DoD has set forth adequate support in the administrative record. Therefore, it is not appropriate to decide this issue in the context of DoD's motion. See Khoja v. Orexigen Therapeutics, Inc. , 899 F.3d 988, 998 (9th Cir. 2018) ("Generally, district courts may not consider material outside the pleadings when assessing the sufficiency of a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure."); cf. Pinnacle Armor, Inc. v. United States , 648 F.3d 708, 721 (9th Cir. 2011) ("If the district court intended to make a ruling on the merits of Pinnacle's APA claim, based on consideration of the full administrative record, it could have converted its decision into a Rule 56 summary judgment ruling. But it did not do so.").

The Court thus denies DoD's motion to dismiss Plaintiffs' equal protection claim.

3. Substantive Due Process

The Court next examines whether Plaintiffs have adequately stated a claim based on substantive due process.

a. Legal Standard

"The substantive component of the Due Process Clause forbids the government from depriving a person of life, liberty, or property in such a way that ... interferes with rights implicit in the concept of ordered liberty." Engquist v. Or. Dep't of Agric. , 478 F.3d 985, 996 (9th Cir. 2007), aff'd , 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (alteration in original) (citation omitted). In order to state a substantive due process claim, a plaintiff must identify "a liberty or property interest protected by the Constitution." Id. (quoting Wedges/Ledges of Cal., Inc. v. City of Phoenix , 24 F.3d 56, 62 (9th Cir. 1994) ).

Courts have found a liberty interest based on "some generalized due process right to choose one's field of private employment." Conn v. Gabbert , 526 U.S. 286, 291-92, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) ; see also Dittman v. California , 191 F.3d 1020, 1029 (9th Cir. 1999) ("[I]t is well-recognized that the pursuit of an occupation or profession is a protected liberty interest that extends across a broad range of lawful occupations." (quoting Wedges/Ledges of Cal. , 24 F.3d at 65 n.4 ) ). However, courts have recognized an infringement that implicates this liberty interest only where the governmental action creates "a complete prohibition of the right to engage in a calling, and not [a] sort of brief interruption." Engquist , 478 F.3d at 997 (alteration in original) (quoting Conn , 526 U.S. at 292, 119 S.Ct. 1292 ). This right protects against "government legislation or regulation," and also "extreme cases" where "government employer actions ... foreclose access to a particular profession to the same degree as government regulation." Id. at 997-98.

Even where the restriction amounts to a complete prohibition, the right infringed is not fundamental, see Dittman , 191 F.3d at 1031, and is therefore "subject to reasonable governmental regulation," Conn , 526 U.S. at 292, 119 S.Ct. 1292. Accordingly, "a plaintiff can make out a substantive due process claim if she is unable to pursue an occupation and this inability is caused by government actions that were arbitrary and lacking a rational basis." Engquist , 478 F.3d at 997.

b. Discussion

Here, Plaintiffs claim that DoD's policy impermissibly burdens their right to pursue a military career by forcing them to wait until their background investigations have been completed. Compl. ¶ 99; ECF No. 46 at 22.

As an initial matter, the Court first addresses the nature of the substantive due process violation alleged. See Chavez v. Martinez , 538 U.S. 760, 775-76, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) ("[The Supreme Court] requires a careful description of the asserted fundamental liberty interest for the purposes of substantive due process analysis" (internal quotation marks and citation omitted) ); Stormans, Inc. v. Wiesman , 794 F.3d 1064, 1085 (9th Cir. 2015) ("Accordingly, we must formulate the asserted right by carefully consulting both the scope of the challenged regulation and the nature of Plaintiffs' allegations.").

Plaintiffs argue that the October 13 Memo interferes with their liberty interest in pursuing a military career. The Court observes that the parties have cited no case concerning government restrictions on entry into a wholly public profession, rather than a "field of private employment." Conn , 526 U.S. at 292, 119 S.Ct. 1292 ; see also Greene v. McElroy , 360 U.S. 474, 492, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) ("[T]he right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the 'liberty' and 'property' concepts of the Fifth Amendment." (emphasis added) ); but see Schware v. Bd. of Bar Exam. of State of N.M. , 353 U.S. 232, 238-39, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) ("A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment." (emphasis added) ). Given the dearth of authority, the Court assumes for purposes of this motion that the standard applicable to private professions governs: "[r]egulations on entry into a profession, as a general matter, are constitutional if they have a rational connection with the applicant's fitness or capacity to practice the profession." Dittman , 191 F.3d at 1030 (quoting Lowe v. SEC , 472 U.S. 181, 228, 105 S.Ct. 2557, 86 L.Ed.2d 130 (1985) (White, J., concurring) ).

DoD relies on Engquist to argue that Plaintiffs' claim is only available in "extreme cases." ECF No. 52 at 16 (quoting Engquist , 478 F.3d at 998 ). But Engquist concerned a state government's treatment of a single employee, 478 F.3d at 990-91, rather than a generally applicable rule governing all or a subset of public employees. The Engquist court therefore addressed when the government's treatment of a single employee operated as the equivalent of "legislative action that effectively banned a person from a profession." Id. at 998. In that context, the court explained that an employer action must be so "extreme" that it accomplishes the same result "as if the government had yanked the license of an individual in an occupation that requires licensure." Id. (citation omitted). Therefore, Engquist supports the Court's conclusion that licensing cases provide the appropriate framework for Plaintiffs' claim.

To the extent DoD argues that Plaintiffs fail to state a claim because the October 13 Memo does not impose a "complete prohibition," the Court disagrees. Cf. ECF No. 42 at 34 ("But the October 13 Memo does not prevent LPRs from serving in the military - it merely requires the completion of their background investigations before they enter service."). Supreme Court and Ninth Circuit precedent make clear that licensing requirements, which are prerequisites to entry into the profession, are subject to this type of rational basis scrutiny, even if they are not lifetime bans that could never be satisfied by the challengers. See, e.g. , Conn , 526 U.S. at 292, 119 S.Ct. 1292 (citing as an example of reasonable regulation precedent "upholding a requirement of licensing before a person can practice medicine") (citing Dent v. West Virginia , 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (1889) ); Dittman , 191 F.3d at 1032-33 (requirement to disclose social security number to obtain acupuncture license). Here, Plaintiffs cannot enter military service until DoD completes their investigations. Cooke, for instance, has been unable to begin basic training for more than a year, and Plaintiffs' complaint alleges that the type of investigations DoD is likely to conduct "take 350 days to complete on average." Compl. ¶ 27. This is "not the sort of brief interruption" the Supreme Court referenced in Conn , 526 U.S. at 292, 119 S.Ct. 1292, where the plaintiff lawyer was prevented from attending a single grand jury hearing with his client, id. at 288-89, 119 S.Ct. 1292.

The Court therefore turns to the justification underlying the October 13 Memo. Plaintiffs do not argue that DoD's background investigation and security determination requirements themselves lack "a rational connection with the applicant's fitness or capacity to" serve in the military. Dittman , 191 F.3d at 1030 (citation omitted). Nor do Plaintiffs appear to contend that requiring all service members to complete these requirements prior to beginning service would be irrational. Rather, Plaintiffs contend that the October 13 Memo is irrational because it "targets LPRs only" to achieve "its purported objective of facilitating efficient background investigations, which is not limited to LPRs." ECF No. 46 at 22. In other words, the policy "singles out one subset of enlistees for disparate treatment- LPRs - and ... this discrimination bears no rational relationship to the stated purpose of making DoD background investigations more 'efficient.' " Id. at 23.

The gravamen of Plaintiffs' substantive due process claim, then, is the same as their equal protection claim: irrationally unequal treatment. The parties concede that the same rational basis review standard applies and incorporate the same arguments from the equal protection context as to why the October 13 Memo is irrational. See ECF No. 42 at 35; ECF No. 46 at 22-23; ECF No. 52 at 17. Accordingly, the Court reaches the same conclusion, and denies DoD's motion to dismiss the substantive due process claim. See Stormans , 794 F.3d at 1088 (incorporating rationality analysis to resolve substantive due process claim without further discussion).

4. APA

DoD's motion to dismiss raises numerous arguments concerning various provisions of the APA. The Court thus begins by briefly reviewing the relevant framework.

a. Judicial Review under the APA

The APA provides a right of action for "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702.

The Act empowers a reviewing court to grant two types of relief. First, a court may "compel agency action unlawfully withheld or unreasonably delayed." Id. § 706(1). Under § 706(1), a claim "can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. " Norton v. S. Utah Wilderness All. ("SUWA") , 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004).

Second, a court may "hold unlawful and set aside agency action, findings, and conclusions, found to be," as relevant here, "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; ... [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2). "The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." State Farm , 463 U.S. at 43, 103 S.Ct. 2856. Rather, a court must determine whether "the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id. To enable this review, the agency must "articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Encino Motorcars , 136 S.Ct. at 2125 (quoting State Farm , 463 U.S. at 43, 103 S.Ct. 2856 ). Furthermore, "[n]ot only must an agency's decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational." Michigan v. E.P.A. , --- U.S. ----, 135 S.Ct. 2699, 2706, 192 L.Ed.2d 674 (2015) (citation omitted).

Where a plaintiff alleges that, as a result of an erroneous legal interpretation, the agency's action was "not in accordance with the law," 5 U.S.C. § 706(2)(A), or "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right," id. § 706(2)(C), courts apply the framework for review first established in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Nw. Envtl. Advocates v. U.S. E.P.A. , 537 F.3d 1006, 1014 (9th Cir. 2008).

The APA also exempts from judicial review cases where "(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. § 701(a).

b. Committed to Agency Discretion by Law

DoD argues that § 701(a)(2) bars review of Plaintiffs' APA claims because decisions regarding the implementation of 10 U.S.C. § 504(b)(1) are "committed to agency discretion by law." ECF No. 42 at 35-36.

i. Legal Standard

Because "Congress rarely intends to prevent courts from enforcing its directives to federal agencies," courts apply "a 'strong presumption' favoring judicial review of administrative action." Mach Mining, LLC v. E.E.O.C. , --- U.S. ----, 135 S.Ct. 1645, 1651, 191 L.Ed.2d 607 (2015) (quoting Bowen v. Mich. Acad. of Family Physicians , 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986) ). Thus, the Supreme Court has long "read the APA as embodying a 'basic presumption of judicial review.' " Lincoln v. Vigil , 508 U.S. 182, 190, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993) (quoting Abbott Labs. v. Gardner , 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ).

Section 701(a)(2) provides "a very narrow exception" to this principle. Citizens to Pres. Overton Park, Inc. v. Volpe , 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders , 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). It governs "those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.' " Id. (citation omitted); see also Heckler v. Chaney , 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) ( Section 701(a)(2) applies where a "statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion."). But "[e]ven where statutory language grants an agency unfettered discretion, its decision may nonetheless be reviewed if regulations or agency practice provide a meaningful standard by which [a] court may review its exercise of discretion." ASSE Int'l, Inc. v. Kerry , 803 F.3d 1059, 1069 (9th Cir. 2015) (quoting Spencer Enters., Inc. v. United States , 345 F.3d 683, 688 (9th Cir. 2003) ).

The Supreme Court has also recognized "certain categories of administrative decisions that courts traditionally have regarded as 'committed to agency discretion,' " and which may fall within § 701(a)(2)'s ambit. Lincoln , 508 U.S. at 191, 113 S.Ct. 2024. For instance, "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion." Heckler , 470 U.S. at 831, 105 S.Ct. 1649 ; see also Lincoln , 508 U.S. at 192, 113 S.Ct. 2024 ("The allocation of funds from a lump-sum appropriation is another administrative decision traditionally regarded as committed to agency discretion."); I.C.C. v. Bhd. of Locomotive Eng'rs , 482 U.S. 270, 282, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987) ("[W]e perceive that a similar tradition of nonreviewability exists with regard to [agency] refusals to reconsider for material error.").

Accordingly, a court must examine "the language of the statute and whether the general purposes of the statute would be endangered by judicial review." ASSE Int'l , 803 F.3d at 1068 (quoting Pinnacle Armor , 648 F.3d at 719 ). "[T]he mere fact that a statute contains discretionary language" does not mean that Section 706(a)(2) prevents judicial review. Pinnacle Armor , 648 F.3d at 719 (quoting Beno v. Shalala , 30 F.3d 1057, 1066 (9th Cir. 1994) ).

Even where § 701(a)(2) forecloses judicial review of APA claims, however, it does not necessarily bar constitutional claims. See Webster v. Doe , 486 U.S. 592, 601, 603, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988). "[W]here Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear." Id. at 603, 108 S.Ct. 2047.

ii. Discussion

Here, DoD argues that 10 U.S.C. § 504 contains no meaningful standards for the Court to apply to the October 13 Memo. ECF No. 42 at 36-37. Plaintiffs counter that because the statute does not impose any different restrictions on U.S. citizens and LPRs, Congress did not intend to grant DoD discretion to treat the two groups differently, let alone preclude judicial review. ECF No. 46 at 25. Both parties stress that Congress recently amended § 504 to impose precisely the requirements of the October 13 Memo on a different class of aliens who are not LPRs, and both parties argue that this decision left their respective interpretations of the status quo intact. See John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, 132 Stat. 1636 (2018), codified at 10 U.S.C. § 504(b)(3)(A) (requiring that the Secretary must "complete[ ] all required background investigations and security and suitability screening" before that person "may report to initial training"). DoD contends that Congress deliberately left in place DoD's discretion to implement the October 13 Memo; Plaintiffs argue that Congress did not amend its prior implied instruction to treat U.S. citizens and LPRs equally for enlistment purposes.

Section 504, by itself, does not supply a meaningful standard for the Court to apply to this case. The Court cannot infer from the mere fact that § 504(b)(1) permits both groups to enlist, without additional distinction, that the statute prohibits DoD from imposing different terms on their enlistment. City of Santa Clara v. Andrus , 572 F.2d 660 (9th Cir. 1978), is on point. There, the statute required the agency to give preference to a class of electric power customers. Id. at 667 (citing 43 U.S.C. § 485h(c) ). The Ninth Circuit explained that this provision did "not require that all preference customers be treated equally or that all potential preference customers receive an allotment." Id. Accordingly, the court concluded, when "one preference entity challenges the Secretary's decision to discriminate against it in favor of other preference entities, the reclamation laws provide no law to apply to the dispute." Id.

But the Court need not rely on section 504 alone, because DoD has promulgated regulations and guidance regarding enlistments. See ASSE Int'l , 803 F.3d at 1069. Through regulation, DoD has established a policy to "[u]se common entrance qualification standards for enlistment, appointment, and induction into the Military Services." 32 C.F.R. § 66.4(a). Pursuant to this policy, DoD regulations set forth in great detail the requirements by which "[e]ligibility will be determined." Id. § 66.6(a)(2). Of particular relevance here, the regulations explain that "[t]he underlying purpose of these enlistment, appointment, and induction standards is to minimize entrance of persons who are likely to become disciplinary cases, security risks, or who are likely to disrupt good order, morale, and discipline." Id. § 66.6(b)(8). As part of this evaluation, the regulations disqualify anyone who "[r]eceives an unfavorable final determination by the DoD Consolidated Adjudication Facility on a completed National Agency Check with Law and Credit (NACLC) or higher-level investigation, which is adjudicated to the National Security Standards in accordance with Executive Order 12968, during the accession process." Id. § 66.6(b)(8)(vi). Nonetheless, under the regulations, DoD may permit an applicant to "[b]e accessed (including shipping him or her to training or a first duty assignment) provided that a NACLC or higher-level investigation was submitted and accepted by the investigative service provider (Office of Personnel Management (OPM) ) and an advanced fingerprint was conducted, and OPM did not identify any disqualifying background information." Id. § 66.6(b)(8)(vi)(A).

Here, DoD has made a categorical determination that an entire group of enlisted service members are not eligible to access under the conditions provided for in § 66.6(b)(8)(vi)(A). The Court can assess - with the requisite deference - whether this determination is rationally related to DoD's stated goal "to minimize entrance of persons who are likely to become disciplinary cases, security risks, or who are likely to disrupt good order, morale, and discipline." Id. § 66.6(b)(8). The Court can further evaluate whether that rationale adequately justifies DoD's deviation from its policy to "[u]se common entrance qualification standards." Id. § 66.4(a).

The Court rejects DoD's argument that the regulations must expressly forbid DoD's action or affirmatively require the precise course that Plaintiffs urge. See ECF No. 52 at 21 (arguing that "the regulation does not state that it is DoD's policy to ship all enlistees to basic training at the same time"). DoD's position is squarely at odds with well-established Ninth Circuit precedent holding that a general standard against which to measure the agency's action is sufficient. See, e.g. , Pac. Nw. Generating Co-op. v. Bonneville Power Admin. , 596 F.3d 1065, 1077 (9th Cir. 2010) (collecting Ninth Circuit cases finding law to apply based on "whether a decision was 'in the public's interest' or whether a particular act was 'feasible' or 'just and reasonable,' ... [or] 'consistent with sound business principles' " (citations omitted) ).

DoD also contends that the October 13 Memo falls within one of the "categories of administrative decisions that courts traditionally have regarded as 'committed to agency discretion.' " Lincoln , 508 U.S. at 191, 113 S.Ct. 2024. As an initial matter, although whether agency decisions "traditionally have been reviewable ... are relevant considerations in a section 701(a)(2) analysis, it's well settled that the touchstone of reviewability under section 701(a)(2) is whether there's law to apply." Or. Nat. Res. Council v. Thomas , 92 F.3d 792, 798 (9th Cir. 1996) (citation omitted). Further, while courts grant great deference to the military, the Court cannot say that this area is one that has historically been regarded as committed to the military's absolute discretion. Certainly, the outcome of individual security clearance adjudications, see Dep't of Navy v. Egan , 484 U.S. 518, 529, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), or the Director of the Central Intelligence Agency's assessment whether a particular employee presents a security threat, see Webster , 486 U.S. at 601, 108 S.Ct. 2047, may traditionally be viewed as beyond the reach of the courts. But, as discussed in detail above, the same is not true for claims that generally applicable requirements or procedures to which military members are subject are arbitrarily discriminatory. See, e.g. , Pruitt , 963 F.2d 1160 (reviewing on the merits constitutional challenges to the Army's regulations prohibiting homosexuality); High Tech Gays v. Def. Indus. Sec. Clearance Office , 895 F.2d 563, 565, 576-77 (9th Cir. 1990) (same for regulations "subjecting all homosexual applicants for Secret and Top Secret clearances to expanded investigations and mandatory adjudications"), abrogated on other grounds by United States v. Windsor , 570 U.S. 744, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013).

Accordingly, the Court concludes that Plaintiffs' APA claims are reviewable.

c. Failure to State a Claim

i. Section 706(1)

The Court next considers whether Plaintiffs have failed to state a claim to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1).

In their complaint, Plaintiffs allege that DoD has unreasonably delayed their "shipment to basic training, and thus their military service." Compl. ¶ 103. In opposing DoD's motion to dismiss, however, Plaintiffs argue that the required action is "a determination whether Plaintiffs can access into the military and ship to basic training." ECF No. 46 at 33 n.12 (emphasis added). In response, DoD contends that Plaintiffs' "complaint may not be amended by briefs in opposition to a motion to dismiss." ECF No. 52 at 21 (quoting Tietsworth v. Sears , 720 F.Supp.2d 1123, 1145 (N.D. Cal. 2010) ). DoD's argument misses the mark.

The rule on which DoD relies applies to "facts raised for the first time in [a] plaintiff's opposition papers." Broam v. Bogan , 320 F.3d 1023, 1026 n.2 (9th Cir. 2003)