Nasio v. United States Department of Defense
Nasio
Court
Unknown Court
Decided
June 13, 2025
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34%
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS PECOS DIVISION SIMON AMUNGA NASIO, § Plaintiff, § § v. § PE-25-CV-00014-DC-DF § UNITED STATES DEPARTMENT § OF DEFENSE, § Defendant. § REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE TO THE HONORABLE DAVID COUNTS, U.S. DISTRICT JUDGE: BEFORE THE COURT is Plaintiff Simon Amunga Nasio’s (“Plaintiff”) Complaint (Doc. 1) and Motion to Proceed in forma pauperis (“IFP Application”) (Doc. 10). This matter is before the undersigned Magistrate Judge through a standing order of referral pursuant to 28 U.S.C. § 636 and Appendix C of the Local Rules for the Assignment of Duties to United States Magistrate Judges. After due consideration, the undersigned RECOMMENDS Plaintiff’s claims be DISMISSED. (Doc. 1). BACKGROUND On March 28, 2025, Plaintiff, proceeding pro se, filed his Complaint against the United States Department of Defense for denying his enlistment application for the United States Airforce. (Doc. 1). Plaintiff is a non-citizen without lawful permanent resident status residing in the United States. Id. at 2. Generally, only United States citizens or lawful permanent residents, as defined in § 101(a)(20) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a), may enlist in the Armed Forces. 10 U.S.C. § 504(b)(A)–(B). But an exception to the general rule exists under 10 U.S.C. § 504(b)(2), allowing non-citizens who are not permanent residents but are lawfully present in the United States to enlist if they possess a “critical skill or expertise vital to the national interest” that the person will use in the “primary daily duties” as an Armed Forces member. 10 U.S.C. § 504(b)(2)(A)–(B). Plaintiff attempted to enlist through this exception. From the numerous emails Plaintiff attaches to his Complaint, the Court gathers Plaintiff’s enlistment was denied because he does not yet possess a critical skill or expertise vital to the national interest. (Doc. 1-3 at 1). Plaintiff disagrees with this determination. Albeit unclear, Plaintiff believes his enrollment at the American Military University/American Public University1 pursuing bachelor’s degrees in computer science and law constitutes a “critical skill or expertise vital to national interest.” (Doc. 1 at 2). Plaintiff therefore believes his failed attempts to enlist under § 504(b)(2) are the result of “procedural obstacles, delays, and arbitrary rejections.” (Doc. 1 at 3). As a result, Plaintiff sues alleging a multitude of statutory and constitutional claims, such as violation of his due process rights under the Fifth Amendment, violation of the Administrative Procedure Act, and failure to apply the § 504(b)(2) exception. See id. Plaintiff also seeks a preliminary injunction requiring the Department of Defense to process and release tuition assistance documents for his continuing education in military-relevant expertise. (Doc. 5). Lastly, Plaintiff asks this Court to recognize Major 1. According to the American Military University / American Public University’s website, it is not affiliated with U.S. Military. Christopher M. Deliman’s decision denying Plaintiff’s enlistment eligibility under the “vital to national interest” exception as the Air Force’s final determination. (Doc. 3). Together with his Complaint and motions, Plaintiff also filed an IFP Application. (Doc. 2). The Court denied Plaintiff’s first IFP Application on April 16, 2025, because it was incomplete and nonsensical. (Doc. 9). Plaintiff then filed his second IFP Application on April 17, 2025. (Doc. 10). The Court thus must address Plaintiff’s second IFP Application before turning to his Complaint. DISCUSSION I. MOTION TO PROCEED IFP All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for a writ of habeas corpus, must pay a $350 filing fee, as well
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
PECOS DIVISION
SIMON AMUNGA NASIO, §
Plaintiff, §
§
v. § PE-25-CV-00014-DC-DF
§
UNITED STATES DEPARTMENT §
OF DEFENSE, §
Defendant. §
REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE
TO THE HONORABLE DAVID COUNTS, U.S. DISTRICT JUDGE:
BEFORE THE COURT is Plaintiff Simon Amunga Nasio’s (“Plaintiff”) Complaint
(Doc. 1) and Motion to Proceed in forma pauperis (“IFP Application”) (Doc. 10). This
matter is before the undersigned Magistrate Judge through a standing order of referral
pursuant to 28 U.S.C. § 636 and Appendix C of the Local Rules for the Assignment of
Duties to United States Magistrate Judges. After due consideration, the undersigned
RECOMMENDS Plaintiff’s claims be DISMISSED. (Doc. 1).
BACKGROUND
On March 28, 2025, Plaintiff, proceeding pro se, filed his Complaint against the
United States Department of Defense for denying his enlistment application for the
United States Airforce. (Doc. 1). Plaintiff is a non-citizen without lawful permanent
resident status residing in the United States. Id. at 2. Generally, only United States
citizens or lawful permanent residents, as defined in § 101(a)(20) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a), may enlist in the Armed Forces.
10 U.S.C. § 504(b)(A)–(B). But an exception to the general rule exists under 10
U.S.C. § 504(b)(2), allowing non-citizens who are not permanent residents but are
lawfully present in the United States to enlist if they possess a “critical skill or expertise
vital to the national interest” that the person will use in the “primary daily duties” as an
Armed Forces member. 10 U.S.C. § 504(b)(2)(A)–(B). Plaintiff attempted to enlist
through this exception.
From the numerous emails Plaintiff attaches to his Complaint, the Court gathers
Plaintiff’s enlistment was denied because he does not yet possess a critical skill or
expertise vital to the national interest. (Doc. 1-3 at 1). Plaintiff disagrees with this determination. Albeit unclear, Plaintiff believes his enrollment at the American Military University/American Public University1 pursuing bachelor’s degrees in computer science and law constitutes a “critical skill or expertise vital to national interest.” (Doc. 1 at 2). Plaintiff therefore believes his failed attempts to enlist under § 504(b)(2) are
the result of “procedural obstacles, delays, and arbitrary rejections.” (Doc. 1 at 3).
As a result, Plaintiff sues alleging a multitude of statutory and constitutional
claims, such as violation of his due process rights under the Fifth Amendment, violation
of the Administrative Procedure Act, and failure to apply the § 504(b)(2) exception.
See id. Plaintiff also seeks a preliminary injunction requiring the Department of Defense
to process and release tuition assistance documents for his continuing education in military-relevant expertise. (Doc. 5). Lastly, Plaintiff asks this Court to recognize Major
-
According to the American Military University / American Public University’s website, it is not affiliated with U.S. Military.
Christopher M. Deliman’s decision denying Plaintiff’s enlistment eligibility under the “vital to national interest” exception as the Air Force’s final determination. (Doc. 3).Together with his Complaint and motions, Plaintiff also filed an IFP Application. (Doc. 2). The Court denied Plaintiff’s first IFP Application on April 16, 2025, because it was incomplete and nonsensical. (Doc. 9). Plaintiff then filed his second IFP Application on April 17, 2025. (Doc. 10). The Court thus must address Plaintiff’s second IFP Application before turning to his Complaint.
DISCUSSION
I. MOTION TO PROCEED IFP
All parties instituting any civil action, suit, or proceeding in a district court of the
United States, except an application for a writ of habeas corpus, must pay a $350 filing
fee, as well
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Status
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Date Decided
June 13, 2025
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