Cross-Office Team Earns Hat Trick in Pro Bono Case Against US Department of Defense

Federal court grants preliminary injunction, halting government policy that denies legal permanent residents from serving in the US military.

November 20, 2018

A multi-city Latham team won a triple victory against the US Department of Defense (DoD) and US Secretary of Defense James Mattis on behalf of Lawful Permanent Residents (LPRs) who have enlisted in the US military. 

Plaintiffs are LPRs who enlisted in the US military but, due to a policy issued by the DoD in October 2017, have been prevented from serving their adopted country until certain background investigations are completed. Before DoD issued the Policy, LPR recruits were allowed to ship out on the same terms as US citizens – immediately upon enlistment. The Policy, however, indefinitely delayed LPRs from commencing their service. 

Working with the ACLU Foundation of Southern California and the ACLU Foundation of Northern California, Latham filed suit against the DoD and Secretary Mattis in June 2018 alleging that the Policy (1) violates the Equal Protection Clause of the United States Constitution; (2) violates the Due Process Clause of the United States Constitution; (3) is arbitrary and capricious in violation of the Administrative Procedure Act (APA); and (4) unlawfully withholds or unreasonably delays agency action in violation of the APA. Latham also later filed a Motion for Preliminary Injunction seeking to enjoin DoD’s enforcement of the Policy on the basis that it constitutes arbitrary and capricious agency action. 

Following oral arguments on November 15, the US District Court for the Northern District of California issued an opinion on November 16, agreeing fully with Latham and the ACLU, and granting Plaintiffs’ motion for class certification, granting Plaintiffs’ motion for a preliminary injunction while also denying the DoD and Secretary Mattis’ motion to dismiss. In his opinion, Judge Tigar emphasized that the LPRs are simply seeking to serve their adopted country, and that such a willingness to sacrifice should not be hamstrung by arbitrary and capricious agency action. 

San Francisco partner Peter Wald handled the oral argument that ultimately resulted in several important victories in this ongoing litigation and is supported by a cross-office team which includes Colleen Smith, Caitlin Dahl, Andrea Schneider, Megan Fitzpatrick, Sophia Mendez, Matthew Catalano, Austin Murnane, Sydney Lakin, Chad Hejl, Jason Moehlmann, Jenn Tian, and Florian Loibl, with paralegal support from Lianne Haller.


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