Ange Samma v. United States Department of Defense

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 30, 2025 Decided May 9, 2025
No. 20-5320
ANGE S AMMA, ET AL.,
APPELLEES
v.
UNITED S TATES D EPARTMENT OF D EFENSE AND
P ETE HEGSETH, IN HIS OFFICIAL CAPACITY AS S ECRETARY OF
DEFENSE,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-01104)
Sean R. Janda, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, at the time the brief was filed, and Sharon Swingle,
Attorney.
Scarlet Kim argued the cause for appellees. With her on
the briefs were Arthur B. Spitzer, Brett Max Kaufman, and
Michelle Fraling.

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Tacy F. Flint and Tommy Hoyt were on the brief for amici
curiae American GI Forum, at al. in support of appellees.
Douglas W. Baruch, Jennifer M. Wollenberg, and Kayla
Stachniak Kaplan were on the brief for amici curiae American
Immigration Council, et al. in support of appellees.
Before: HENDERSON and P AN , Circuit Judges, and
R ANDOLPH , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Henderson.
Concurring opinion filed by Circuit Judge P AN .
KAREN LEC RAFT HENDERSON, Circuit Judge: This case
involves a challenge to the authority of the Department of
Defense (DoD or Department) to impose time-in-service
requirements for expedited naturalization. Under the
Immigration and Nationality Act (INA), noncitizens who
“served honorably” in the U.S. military are eligible for an
expedited path to naturalization under 8 U.S.C. § 1440.
Historically, DoD certified noncitizens’ honorable service
for naturalization purposes without imposing a time-in-service
requirement, with certifications often granted during basic
training. But in 2017 DoD issued a policy requiring a certain
minimum time in service before it considered certifying
honorable service under section 1440—180 days for active-
duty personnel and one year for reservists. In 2020, the
plaintiffs—representing a class of noncitizen
servicemembers—challenged the 2017 policy under the
Administrative Procedure Act. After the district court granted
summary judgment to the plaintiffs and while this appeal was
pending, DoD rescinded the policy at issue. It has not
introduced a replacement policy.

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The issue before us is whether the case is moot in light of
the Department’s rescission of the challenged policy. Because
we believe it is moot, we dismiss the appeal. And because there
is no indication that DoD rescinded the policy to evade review,
we also vacate the judgment of the district court.
I.
A.
Certain noncitizens are qualified to serve in the U.S. armed
forces if, for example, they are lawful permanent residents or
have critical skills or expertise vital to the national interest that
they will use in their primary daily duties. See 10 U.S.C. § 504.
There are two paths to expedited naturalization for noncitizens
serving in the U.S. military.
First, a noncitizen who meets certain qualifications and
who has “served honorably at any time in the armed forces of
the United States for a period or periods aggregating one year”
is eligible to apply for naturalization. 8 U.S.C. § 1439(a). To
establish his honorable service under this provision, an
applicant is required to provide “a certified statement from the
proper executive department for each period of his service
upon which he relies for the benefits of this section, clearly
showing that such service was honorable . . . .”
Id. § 1439(b)(3).
Second, a noncitizen who meets certain qualifications and
who “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
specified wartime periods, or during any period designated by
the President as one in which the military is engaged in armed
conflict, may apply for naturalization. 8 U.S.C. § 1440(a). The
“executive department under which such person served shall

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determine whether persons have served honorably.” Id. On
July 3, 2002, President George W. Bush issued an executive
order declaring the period beginning on September 11, 2001,
to be a period in which the U.S. Armed Forces were engaged
in armed conflict with a hostile foreign force. See Exec. Order
No. 13,269, 67 Fed. Reg. 45,287 (July 8, 2002). That period of
hostilities remains ongoing.
A noncitizen is ineligible to apply for citizenship under
section 1439 or section 1440 if he has already been separated
from service under other-than-honorable conditions, see
8 U.S.C. §§ 1439(a), 1440(a), and a noncitizen who obtains
citizenship under either provision may be denaturalized if he is
separated under other-than-honorable conditions before he has
served honorably for five years, id. §§ 1439(f), 1440(c).
Naturalization authority under the Act is vested with the
Attorney General of the United States. 8 U.S.C. § 1421(a). By
regulation, the Attorney General has designated the Director of
the U.S. Immigration and Naturalization Service (USCIS) to
administer that authority. 8 C.F.R. §§ 1.2, 310.1. Using Form
N-426, noncitizen servicemembers applying for naturalization
with USCIS must seek certification from their military branch
as to the type and character of their service. See 8 C.F.R.
§ 329.4; J.A. 139-43 (Form N-426). An applicant’s eligibility
for expedited naturalization under section 1439 or section 1440
is predicated on receiving certification from his military
branch. See 8 C.F.R. § 329.4.
B.
In October 2017, the Department of Defense issued a
policy on certifying noncitizen servicemembers’ service for
use by USCIS. J.A. 70-73 (Policy). The Policy introduced
procedural requirements for those who joined the armed forces
on or after the date of issuance. J.A. 71. In order to receive

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DoD’s N-426 certification under the new policy, those
servicemembers had to meet three criteria: (1) they could not
be the subject of any legal or disciplinary action; (2) they had
to have completed certain background investigation and
suitability vetting; and (3) they had to meet specific time-in-
service requirements. J.A. 71-72. Under the third condition,
applicants had to complete “basic training” and either
180 consecutive days of active-duty service or one year of
Selected Reserve service before receiving an honorable-service
certification. Id.
C.
On April 28, 2020, six noncitizen servicemembers, on
their own behalf and on behalf of a putative class, sued DoD,
claiming that the Policy was unlawfully preventing them from
obtaining certified N-426s and submitting applications for
naturalization. J.A. 25. The plaintiffs sued under the APA,
challenging the Policy as arbitrary and capricious and
otherwise not in accordance with law, 5 U.S.C. § 706(2)(A); in
excess of statutory jurisdiction, id. § 706(2)(C); resulting in
unlawfully withheld and unreasonably delayed agency action,
id. § 706(1); and enacted without notice and comment, id.
§§ 553, 706(2)(D). J.A. 25. The district court certified a
plaintiff class defined as: (1) noncitizens serving in the U.S.
military; (2) who were subject to the Policy; and (3) who had
not received a certified N-426 Form. J.A. 66-67.1
The district court granted summary judgment to the
plaintiffs. 486 F. Supp. 3d 240 (D.D.C. 2020). It first
determined that the Policy was reviewable under the APA.
1 The district court also excluded servicemembers who were part of
a different certified class and one potential plaintiff who had
separately sought and been denied relief in another court. See
J.A. 67-68.

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Id. at 261-64. It then found that the Policy was arbitrary and
capricious and contrary to law and that DoD’s refusal to certify
an N-426 for a noncitizen who had served one day of qualifying
service constituted agency action unlawfully withheld. Id. at
264-80. The court determined that DoD’s role in certifying
Form N-426s is purely ministerial and thus § 1440 does not
authorize it to promulgate time-in-service requirements for
certification. Id. at 280. It declined to reach the notice-and-
comment issue. Id. at 280 n.43. Based on those findings, the
court vacated the Policy’s time-in-service requirement and
enjoined DoD from withholding certified N-426 Forms based
on that Policy. J.A. 64. It ordered DoD to certify or deny any
submitted N-426 Forms within thirty days. J.A. 64-65.2
DoD timely appealed. After several motions requesting
extensions to the briefing schedule, DoD issued a
memorandum rescinding the Policy, noting that it was
“currently reconsidering” the time-in-service requirements.
DoD 28(j) Letter at 2 (June 23, 2021). Soon after, DoD moved
to hold its appeal in abeyance while it considered changes to its
policies. That motion was granted. For the next three years,
between August 2021 and June 2024, DoD filed eighteen status
reports indicating that it was continuing to evaluate whether to
issue new guidance. In June 2024, we granted appellees’
motion to establish a briefing schedule and end abeyance.
Clerk’s Order, June 26, 2024. To date, DoD has not issued any
new guidance on a time-in-service requirement for certifying
N-426 Forms.
2 The district court drew a distinction between DoD’s authority to
define “honorable service” internally or at discharge—finding such
decisions to be “squarely within the province of the military”—and
using such a definition for the purpose of naturalization, which it
understood to involve different considerations that were beyond the
military’s responsibilities. See 486 F. Supp. 3d at 263, 269-71.

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II.
A.
Article III of the Constitution grants federal courts power
to “adjudicate only actual, ongoing cases or controversies.”
Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990).
Because mootness poses a jurisdictional bar, we must assure
ourselves that the case is not moot before considering its
merits. Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70
(1983). A case is moot “when the issues presented are no
longer live or the parties lack a legally cognizable interest in
the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91
(2013); Nat’l Black Police Ass’n v. District of Columbia, 108
F.3d 346, 349 (D.C. Cir. 1997) (federal courts have no power
to “decide questions that cannot affect the rights of litigants in
the case before them” (quoting Preiser v. Newkirk, 422 U.S.
395, 401 (1975))). “‘Even where litigation poses a live
controversy when filed,’ a federal court must ‘refrain from
deciding the dispute if events have so transpired that the
decision will neither presently affect the parties’ rights nor
have a more-than-speculative chance of affecting them in the
future.’” Pub. Citizen, Inc. v. FERC, 92 F.4th 1124, 1127-28
(D.C. Cir. 2024) (quoting Clarke v. United States, 915 F.2d
699, 701 (D.C. Cir. 1990) (en banc)) (alterations omitted).
As we have repeatedly recognized, “the government’s
abandonment of a challenged regulation is just the sort of
development that can moot an issue.” Friends of Animals v.
Bernhardt, 961 F.3d 1197, 1203 (D.C. Cir. 2020) (citing Gulf
Oil Corp. v. Brock, 778 F.2d 834, 840 (D.C. Cir. 1985)
(collecting cases)); see also Akiachak Native Cmty. v. Dep’t of
Interior, 827 F.3d 100, 106 (D.C. Cir. 2016) (“Because that
[challenged] regulation no longer exists, we can do nothing to
affect [plaintiff’s] rights relative to it, thus making this case

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classically moot for lack of a live controversy.”); Larsen v. U.S.
Navy, 525 F.3d 1, 2 (D.C. Cir. 2008) (“[B]ecause the Navy has
long since eliminated the challenged policy, plaintiffs’
challenge is moot.”).
However, an exception to mootness can apply if one party
voluntarily ceases the challenged activity. Pub. Citizen, 92
F.4th at 1128. In such circumstances, “the case remains live
unless it is ‘absolutely clear the allegedly wrongful behavior
could not reasonably be expected to recur.’” Id. (quoting
Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 U.S.
167, 190 (2000)). “The voluntary-cessation doctrine, however,
does not apply automatically whenever the prospect of
mootness is raised by a party’s voluntary conduct.” Id.
“Instead, courts have declined to apply the doctrine when the
facts do not suggest any ‘arguable manipulation of our
jurisdiction.’” Id. (quoting City News & Novelty, Inc. v. City
of Waukesha, 531 U.S. 278, 284 (2001)); see also Alaska v.
Dep’t of Agric., 17 F.4th 1224, 1229 (D.C. Cir. 2021) (“The
established law of this circuit is that the voluntary cessation
exception to mootness has no play when the agency did not act
in order to avoid litigation.” (cleaned up)). A suggestion of
manipulation is even less likely if the party who ceased the
challenged activity opposes mootness. Pub. Citizen, 92 F.4th
at 1129.
B.
We conclude that this appeal is moot and the voluntary-
cessation doctrine does not apply. DoD’s arguments to the
contrary are unpersuasive.
First, no decision by this court would do anything to affect
the Policy or the plaintiff class members’ rights relative to it,
“making this case classically moot for lack of a live
controversy.” Akiachak, 827 F.3d at 106. For instance, an

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order declaring that the Policy was in fact lawful would affect
neither the plaintiffs, who currently face no time-in-service
requirements for certification, nor DoD, which has already
rescinded the Policy.
Even so, DoD asserts that there is a “more-than-
speculative chance” that a decision by this court could affect
the parties’ rights because the Department is “actively
considering whether to impose new time-in-service
requirements.” DoD Suppl. Br. 7. That assertion, however,
stops short of confirming that the Department in fact will or
intends to impose such a policy in the future. The
Department’s position is further undercut by its three years of
inaction. Even if it did adopt a new policy, there is no
indication that it would be the same policy so that an order of
this court would have a meaningful effect. We will not
speculate on the form and content of some uncertain future
policy to render an advisory opinion as to the lawfulness of a
time-in-service requirement generally. That is precisely the
scenario that the mootness doctrine is intended to avoid. See,
e.g., Church of Scientology of Cal. v. United States, 506 U.S.
9, 12 (1992).
Second, the voluntary-cessation doctrine has no
application here. Adopting an unusual position, DoD argues
that it should be held to the heavy burden imposed by that
doctrine, barring mootness. In its view, because it voluntarily
rescinded the Policy, it bears the burden to show that it would
not reimpose the 2017 Policy and—because it insists that it will
impose some kind of replacement policy in the future—it
cannot meet that burden. But that burden is imposed only if
there is some evidence that the party sought to manipulate the
court’s jurisdiction, see Pub. Citizen, 92 F.4th at 1128, and
nothing suggests that DoD did so. This is not a case in which
a party sought to strategically avoid judicial review by ceasing

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a challenged activity. Although it is at least possible that DoD
might at some point seek to implement a similar policy, it does
not represent that it intends to revert to the policy at issue here
and we cannot issue an advisory opinion on an unknowable
future policy.
DoD alternatively suggests that the case is not moot
because the district court’s judgment enjoins the Department
“from withholding certified Form N-426s from any class
member based on a failure to complete the Minimum Service
Requirements.” J.A. 64. In its view, that language could be
interpreted to impose an ongoing requirement on the
Department. That is plainly incorrect. The district court’s
injunction is limited to class members, who are in turn defined
as those subject to the October 2017 Policy. J.A. 64 & n.1, 66-
69. Because no one is subject to the 2017 Policy in light of its
rescission, the class is empty. The injunction, therefore, does
not impose any further restraint on DoD.
In sum, because the Policy has been rescinded, no order
from this court would have any meaningful effect on the rights
of the parties and the case is moot. Equally, no exception to
mootness applies.
C.
Because the case is moot, we must separately decide
whether the district court’s judgment should be vacated.
Vacatur is ordinarily appropriate once a case is moot because
it “clears the path for future relitigation of the issues between
the parties and eliminates a judgment, review of which was
prevented through happenstance.” United States v.
Munsingwear, Inc., 340 U.S. 36, 40 (1950). We regularly
follow that “well settled practice.” Acheson Hotels v. Laufer,
601 U.S. 1, 5 (2023) (per curiam); e.g., United States v. China
Telecom (Americas) Corp., 55 F.4th 939, 944 (D.C. Cir. 2022).

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That said, vacatur is an equitable remedy. If mootness
results from the voluntary conduct of the party seeking relief,
vacatur is not automatic. See U.S. Bancorp Mortg. Co. v.
Bonner Mall P’ship, 513 U.S. 18, 24-26 (1994). But the
Supreme Court has recognized that “exceptional
circumstances” may nonetheless justify vacatur despite
voluntary mootness. Id. at 29; cf. Azar v. Garza, 584 U.S. 726,
729 (2018) (per curiam) (emphasizing that vacatur turns on the
specific circumstances of the case). And it has left open
whether a different rule may apply if the government moots a
case by modifying a challenged policy. See Bancorp, 513 U.S.
at 25 n.3; Munsingwear, 340 U.S. at 40-41. The Court has also
continued to follow its standard Munsingwear practice if there
is no indication that a litigant “abandoned her case in an effort
to evade [] review.” Acheson Hotels, 601 U.S. at 5. In other
words, Bancorp does not erect a categorical bar to vacatur
when voluntary action moots the case; instead, courts must
apply equitable principles flexibly. See id. at 18-19 (Jackson,
J., concurring).
Here, although the Department’s rescission of the
challenged policy mooted the case, there is also no indication
it acted to sidestep appellate review. The Department opposes
mootness and nothing in the record suggests acquiescence in
the judgment below. Cf. Alvarez v. Smith, 558 U.S. 87, 97
(2009); Pub. Citizen, 92 F.4th at 1129. In such circumstances,
the Supreme Court has routinely granted vacatur to avoid
binding the government to a judgment it had no opportunity to
challenge on the merits. See, e.g., Mayorkas v. Innovation Law
Lab, 141 S. Ct. 2842 (2021) (mem.); Biden v. Feds for Med.
Freedom, 144 S. Ct. 480 (2023) (mem.). For example, in Biden
v. Feds for Medical Freedom, President Biden revoked a
challenged Executive Order as part of a broader unwinding of
measures put into place during the acute phase of the COVID-
19 pandemic, after determining that it was no longer necessary.

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And in Mayorkas v. Innovation Law Lab, the change in policy
was also due to a change in administrations. The policies in
question were implemented by the first Trump administration
and subsequently terminated by the Biden administration,
causing mootness. The Supreme Court did not address
Bancorp in either case.
In short, this is not a case in which DoD forfeited its
appellate rights or sought to preserve an unreviewed ruling. In
addition, the balance of equities favors vacatur to allow future
relitigation of the issue. See Munsingwear, 340 U.S. at 40.
Accordingly, vacatur is appropriate here.
* * *
For the foregoing reasons, we vacate the district court’s
judgment and remand with instructions to dismiss the case as
moot.
So ordered.

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P AN , Circuit Judge, concurring:
I fully concur with the court’s opinion, which vacates the
district court’s judgment after determining that the case became
moot while this appeal was pending. I agree that there is “no
indication that [the Department of Defense] acted to sidestep
appellate review,” and that vacatur under such circumstances
is “routinely granted . . . to avoid binding the government to a
judgment it had no opportunity to challenge on the merits.” See
Op. at 11. I write separately to more explicitly address how our
vacatur of the district court’s judgment is supported by the
Supreme Court’s decision in U.S. Bancorp Mortgage Company
v. Bonner Mall Partnership, 513 U.S. 18, 23–25 (1994).
The typical practice when a civil case becomes moot on
appeal and a party asks for vacatur of “the judgment below” is
to grant the request for vacatur in order to “clear[] the path for
future relitigation.” United States v. Munsingwear, Inc., 340
U.S. 36, 39–40 (1950). But the Supreme Court noted in
Bancorp that the propriety of vacatur is an equitable
determination that may turn on how the mootness came about.
See Bancorp, 513 U.S. at 24–25. “The principal condition” to
consider is “whether the party seeking relief from the judgment
below caused the mootness by voluntary action.” Id. at 24. A
litigant should not be allowed to manipulate the judicial system
by “roll[ing] the dice . . . in the district court” and then
“wash[ing] away” any “unfavorable outcome” by strategically
settling the case and then moving for vacatur of the judgment.
Bancorp, 513 U.S. at 28. Thus, in Bancorp, where a non-
prevailing, private party substantially caused mootness by
settling the case while an appeal was pending, that party
“forfeited [its] legal remedy by the ordinary processes of
appeal or certiorari, thereby surrendering [its] claim to the
equitable remedy of vacatur.” Id. at 25. By contrast, vacatur
under Munsingwear remains appropriate when an appeal is
“prevented through happenstance — that is to say, where a
controversy presented for review has become moot due to

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circumstances unattributable to any of the parties.” Id. at 23
(cleaned up); see also Munsingwear, 340 U.S. at 40 (when
review of a judgment is “prevented through happenstance,”
vacatur of the judgment preserves the rights of all parties and
“none is prejudiced by a decision which in the statutory scheme
was only preliminary”).
The Supreme Court identified two considerations that
might weigh in favor of vacatur even when the voluntary
actions of a losing party cause mootness. First, the Court noted
that “exceptional circumstances may conceivably counsel in
favor of” vacatur in that situation, based on “equitable” factors.
Id. at 29. Second, the Court recognized that under
Munsingwear, vacatur could be appropriate where the
government moots a case through its repeal of an
administrative regulation. Bancorp, 513 U.S. at 25 n.3 (“We
express no view on Munsingwear’s implicit conclusion that
repeal of administrative regulations cannot fairly be attributed
to the Executive Branch when it litigates in the name of the
United States.”); see Munsingwear, 340 U.S. at 40–41 (stating
that the lower court judgment might have been vacated — even
though an action by the Executive Branch had mooted the
appeal — if the government had requested vacatur).
This court has never “squarely decided that Bancorp’s
voluntary action exception [to the Munsingwear practice
favoring vacatur] applies to executive branch action.” Humane
Soc’y of U.S. v. Kempthorne, 527 F.3d 181, 187 (D.C. Cir.
2008) (cleaned up). Rather than rely on exceptional
circumstances or executive action, we have generally
“interpreted Bancorp narrowly, weighing whether a litigant is
attempting to manipulate the courts to obtain the relief it was
not able to win below.” Alphabet Workers Union-Commc’n
Workers of Am., Local 9009 v. NLRB, No. 24-1003, 2025 WL
1162314, at *5 (D.C. Cir. Apr. 22, 2025) (cleaned up); cf. Am.

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Family Life Assurance Co. of Columbus v. FCC, 129 F.3d 625,
630 (D.C. Cir. 1997) (observing that “[t]he specific holding of
Bancorp, concerning as it does settlements, has no application”
to deciding whether to vacate an unreviewed agency order).
That is the approach that the court takes in this case.
Yet, in my view, this case squarely presents whether
Bancorp’s “voluntary action exception” should apply to the
Executive Branch. Kempthorn, 527 F.3d at 187. In this case,
the government was the non-prevailing party before the district
court and sought to appeal, but the case became moot due to a
policy change implemented by the government. The question
we confront is whether the circumstances presented justify
vacatur, even though the party seeking relief (the government)
caused the mootness by voluntary action. See Bancorp, 513
U.S. at 24. I believe that both of Bancorp’s additional
considerations are relevant here and either one supports
vacatur. First, “the repeal of [the] administrative regulation[]”
in this case cannot be “fairly attributed” to the Executive
Branch, such that the government should “surrender[] the
equitable remedy of vacatur,” id. at 25 & n.3, because the
change in policy that caused mootness was unrelated to this
litigation and the government did not intend to forfeit its
appellate rights in this case — indeed, it opposed mootness and
continued to press its claims on appeal. Accordingly, mootness
was not “voluntarily” caused in the relevant sense.
Alternatively, the equities weigh in favor of vacatur because
there is no indication that the Department acquiesced to the
district court’s judgment or acted to manipulate our
jurisdiction; and we are faced with an “extraordinary
circumstance[]”: The Department has stated that the district
court’s judgment might constrain its decision-making
regarding soldiers who serve in combat roles. See id. at 29;
DoD Suppl. Br. 10, 12–17 (expressing concerns that the court’s
judgment will “constrain the [Department’s] policymaking

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discretion moving forward” and “preclude the [Department]
from issuing new time-in-service requirements in the future,”
and noting that the injunction still binds the Department).
Thus, a straightforward application of Bancorp supports
vacatur of the district court’s judgment in this case.

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