Amicus Curiae Brief — Jiahao Kuang, et al., Petitioners v. Department of Defense, et al.

Supreme Court briefMay 4, 2020

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No. 19-1194

IN THE

Supreme Court of the United States

_________

JIAHAO KUANG, ET AL.,

Petitioners,

U.S. DEPARTMENT OF DEFENSE, ET AL.,

Respondents.

________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

________

BRIEF OF THE MODERN MILITARY

ASSOCIATION OF AMERICA, THE CENTER

FOR LAW AND MILITARY POLICY, THE

HONORABLE GORDON O. TANNER, THE

SERVICE WOMEN’S ACTION NETWORK, MR. C.

DIXON OSBURN, THE MILITARY OFFICERS

ASSOCIATION OF AMERICA, THE AMERICAN

GI FORUM, AND THE MINORITY VETERANS

OF AMERICA AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

________

IAN HEATH GERSHENGORN

Counsel of Record

NOAH B. BOKAT-LINDELL

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6869

igershengorn@jenner.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................... ii

INTERESTS OF AMICI ................................................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...................................................................... 2

ARGUMENT ...................................................................... 4

IMMIGRANTS

HAVE

SERVED

HONORABLY IN THE MILITARY

THROUGHOUT

AMERICAN

HISTORY

AND

RECEIVED

CITIZENSHIP

BENEFITS

RETURN ................................................................ 4

II.

THE MILITARY’S HISTORY OF

DISCRIMINATION HAS HARMED

SERVICEMEMBERS

AND

THE

MILITARY ITSELF .......................................... 10

III.

The Military Has Grappled With

Discrimination for Two Centuries ......... 10

Discrimination in the Military

Harms

Servicemembers

and

Potential Servicemembers ...................... 15

Discrimination Hurts the Military ......... 18

THE MINDES DOCTRINE MAKES IT

MORE DIFFICULT TO COMBAT

DISCRIMINATION

THE

MILITARY ........................................................... 22

CONCLUSION ................................................................ 26

APPENDIX – LIST OF AMICI ................................... 1a

TABLE OF AUTHORITIES

CASES

Benisek v. Lamone, 138 S. Ct. 1942 (2018) ........................ 23

Bledsoe v. Webb, 839 F.2d 1357 (9th Cir. 1988) ................. 26

Brown v. Glines, 444 U.S. 348 (1980) ................................. 23

Daugherty v. United States, 73 F. App’x 326 (10th

Cir. 2003) ........................................................................ 25

Department of Commerce v. New York, 139 S. Ct.

2551 (2019) ...................................................................... 26

Dillard v. Brown, 652 F.2d 316 (3d Cir. 1981) .................. 22

Frontiero v. Richardson, 411 U.S. 677 (1973) ................... 12

Goldman v. Weinberger, 475 U.S. 503 (1986) .................... 24

Greer v. Spock, 424 U.S. 828 (1976) ............................... 23-24

Holdiness v. Stroud, 808 F.2d 417 (5th Cir. 1987) ............ 22

Karnoski v. Trump, No. 17-cv-1297 (W.D. Wash.

filed Aug. 28, 2017) ........................................................ 15

Khalsa v. Weinberger, 787 F.2d 1288 (9th Cir.

1985) ................................................................................ 24

Mata v. Lynch, 135 S. Ct. 2150 (2015) .................................. 2

Meister v. Texas Adjutant General’s Department,

233 F.3d 332 (5th Cir. 2000) ......................................... 26

Mindes v. Seaman, 453 F.2d 197 (5th Cir.

1971) ............................................................................ 2, 22

Phillips v. Perry, 106 F.3d 1420 (9th Cir.

1997) ................................................................................ 24

Roe v. Department of Defense, 947 F.3d 207 (4th

Cir. 2020) ............................................................ 23, 25, 26

iii

Service Women’s Action Network v. Mattis, 352 F.

Supp. 3d 977 (N.D. Cal. 2018) ...................................... 25

Service Women’s Access Network v. Mattis, 320 F.

Supp. 3d 1082 (N.D. Cal. 2018) .................................... 25

Tatum v. United States, No. CIV.A. RDB-06-2307,

2007 WL 2316275 (D. Md. Aug. 7, 2007),

summarily aff’d, 272 F. App’x 251 (4th Cir.

2008) ................................................................................ 25

United States v. Sterling, 75 M.J. 407 (C.A.A.F.

2016) ................................................................................ 24

United States v. Windsor, 570 U.S. 744 (2013) ................. 14

Winter v. Natural Resource Defense Council, Inc.,

555 U.S. 7 (2008) ............................................................ 23

S TATUTES

8 U.S.C. § 1439....................................................................... 10

8 U.S.C. § 1440............................................................. 9, 10, 16

10 U.S.C. § 504(b)(2) ............................................................... 8

OTHER AUTHORITIES

Archive Statistics, Congressional Medal of Honor

Society, https://tinyurl.com/abeezdb (last

visited Apr. 17, 2020) ...................................................... 8

The Army and Diversity, U.S. Army Ctr. of Mil.

Hist.,

https://tinyurl.com/yadnvwf4

(last

visited Apr. 17, 2020) .................................................... 10

Rick Beard, Black Union Soldiers Fought a Costly

Battle for Equal Pay, Military Times (Feb. 12,

2018), https://tinyurl.com/yaozvgch ............................ 19

Allan Berube, Coming Out Under Fire: The

History of Gay Men and Women in World War

Two (1990) ...................................................................... 13

Brief of Lt. Gen. Julius W. Becton, Jr. et al., Fisher

v. University of Texas at Austin, 136 S. Ct.

2198 (2016) (No. 14-981), 2015 WL 6774556 ............... 20

Carl Andrew Castro et al., Sexual Assault in the

Military, 17 Current Psychiatry Rep. 54

(2015), https://tinyurl.com/y9supxw4 ......................... 15

Ron Chernow, Alexander Hamilton (2004) ........................ 5

Ron Chernow, Washington: A Life (2010) .......................... 5

Muzaffar Chishti et al., Policy Brief: Noncitizens in

the U.S. Military: Navigating National

Security Concerns and Recruitment Needs,

Migration

Pol’y

Inst.

(May

2019),

https://tinyurl.com/ybkezatq ......................................... 8

Defense Language Transformation Roadmap,

Dep’t

Def.

(Jan.

2005),

https://tinyurl.com/ycck4jxt ........................................ 21

Department of Defense Annual Report on Sexual

Assault in the Military: Fiscal Year 2018,

Dep’t

Def.

(2019),

https://tinyurl.com/y88k7fbr ........................................ 15

Don H. Doyle, The Cause of All Nations: An

International History of the American Civil

War (2015) .................................................................... 6, 7

John Ferling, Almost a Miracle: The American

Victory in the War of Independence (2007) . 5, 6, 11, 18

Nancy Gentile Ford, Americans All!: ForeignBorn Soldiers in World War I (2001) ....................... 6, 7

Freedom to Serve Guide, OutServe-SLDN (2d ed.

2018), https://tinyurl.com/y97wp9fv ..................... 13, 14

Gary J. Gates, Effects of “Don’t Ask, Don’t Tell” on

Retention Among Lesbian, Gay and Bisexual

Military Personnel, Williams Inst. (2007),

https://tinyurl.com/yc9uystj ........................................ 19

Jeremy T. Goldbach & Carl Andrew Castro,

Lesbian, Gay, Bisexual, and Transgender

(LGBT) Service Members: Life After Don’t

Ask, Don’t Tell, 18 Current Psychiatry Rep. 56

(2016), https://tinyurl.com/yclsdb83............................ 19

Darlene C. Goring, In Service to America:

Naturalization of Undocumented Alien

Veterans, 31 Seton Hall L. Rev. 400 (2000) ............. 8, 9

Margaret C. Harrell & Laura L. Miller, New

Opportunities for Military Women: Effects

Upon Readiness, Cohesion, and Morale

(1997), https://tinyurl.com/ydyk94wh......................... 19

Max Hastings, Vietnam: An Epic Tragedy, 19451975 (2018) ...................................................................... 19

The

Immigrant Army: Immigrant Service

Members in World War I, U.S. Citizenship &

Immigration Servs. (last updated Mar. 5,

2020), https://tinyurl.com/v97c8rw ............................... 9

Kristy N. Kamarck, Cong. Research Serv., R44321,

Diversity, Inclusion, and Equal Opportunity

in the Armed Services: Background and

Issues for Congress (June 5, 2019),

https://tinyurl.com/y8wu9nk6.. 11, 12, 13, 14, 16, 19, 20

Marcelino Serna, Hispanic Medal of Honor

Society, https://tinyurl.com/yb7m29hs (last

visited May 1, 2020) ....................................................... 7

James McPherson, Battle Cry of Freedom: The

Civil War Era (1988) ........................................ 11, 16, 18

Military Leadership Diversity Commission, From

Representation to Inclusion: Diversity

Leadership for the 21st-Century Military,

Final

Report

(2011),

https://tinyurl.com/yc4djyrk .................................. 20, 21

Military Naturalization During WWII, U.S.

Citizenship & Immigr. Servs. (last updated

Dec. 6, 2019), https://tinyurl.com/yaft4r92 .................. 9

Watson B. Miller, Foreign Born in the United

States Army During World War II, With

Special Reference to the Alien, 6 Immigr. &

Naturalization Serv. Monthly Rev. 48 (1948),

https://tinyurl.com/yb5odkrs ......................................... 7

Meghann Myers, The Army Is Supposed to Be

Growing, But This Year, It Didn’t At All,

Army

Times

(Sept.

21,

2018),

https://tinyurl.com/yxr62bet........................................ 21

Zachary R. New, Ending Citizenship for Service in

the Forever Wars, 129 Yale L.J. Forum 552

(2020) ............................................................................. 8, 9

Original Broadway Cast, Guns and Ships,

Hamilton (Atlantic Records 2015) ................................ 5

Ashley C. Schuyler et al., Military Sexual Assault

(MSA) Among Veterans in Southern

California, 23 Traumatology 223 (2017),

https://tinyurl.com/ycf9pmnm ..................................... 15

USCIS Facilities Dedicated to the Memory of

Immigrant Medal of Honor Recipients, U.S.

Citizenship

Immigr.

Serv.,

https://tinyurl.com/ydzbb9x2 (last updated

Nov. 21, 2019)................................................................... 8

vii

Women in the Military: Where They Stand, Serv.

Women’s Action Network (10th ed. 2019),

https://tinyurl.com/yasrwdms ............................... 13, 18

Jie Zong & Jeanne Batalova, Immigrant Veterans

in the United States, Migration Pol’y Inst.

(May 16, 2019), https://tinyurl.com/yby2935s .............. 8

INTERESTS OF AMICI1

Amici curiae are officials and organizations who

seek to improve our military and fight discrimination in

the Armed Forces.2 Many have filed amicus briefs in

this Court in prior cases implicating servicemembers’

liberty and equality. Amici have a vital interest in this

case because it involves an important issue that affects

them, their members, and the constituencies they serve:

whether lawsuits challenging allegedly discriminatory

military policies can be heard on their merits. Amici file

this brief to illuminate the longstanding partnership

between the military and our nation’s immigrants; the

history of discrimination in the military and the harms it

causes; and the consequences of allowing decisions like

the one below to stand.

All parties received notice of and consented to this filing. No

party or party’s counsel wholly or partially authored this brief. Only

amici and counsel for amici funded its preparation and submission.

A list of amici curiae is attached as Appendix A.

INTRODUCTION AND SUMMARY OF

ARGUMENT

In Mindes v. Seaman, 453 F.2d 197, 199 (5th Cir.

1971), the Fifth Circuit divined its own “judicial policy

akin to comity,” fashioning a multi-step, multi-factor

balancing test to determine “when internal military

affairs should be subjected to court review.” Mindes,

and the lower-court doctrine that now bears its name,

violates courts’ “virtually unflagging obligation ... to

exercise” their jurisdiction. Mata v. Lynch, 135 S. Ct.

2150, 2156 (2015) (citation omitted). In so doing, it shields

from scrutiny discriminatory practices by the military,

including ones like the policy under review (“the

Policy”), which delays accession to basic training for

lawful permanent residents (“LPRs”) but not for

citizens. Amici have fought against similar

discriminatory policies, occasionally having to run

Mindes’s gauntlet despite its utter lack of constitutional

or statutory foundation. Yet after five decades—

adopted by several circuits, rejected by others, and in

various stages of limbo elsewhere—the Mindes doctrine

still drags its dreary length before the courts. This Court

should grant the plaintiffs’ petition and inter Mindes.

The Ninth Circuit’s summary dismissal of

Petitioners’ Administrative Procedure Act (“APA”)

claim ignores the fruitful partnership the military has

long enjoyed with our nation’s immigrants. From the

Revolutionary War to the War on Terror, immigrants

have served the United States honorably and in great

numbers. The military has consistently recruited and

drafted foreign-born servicemembers, including noncitizens. In return, for over 150 years Congress has

offered expedited citizenship to immigrants who serve.

The statutory process to which the Department of

Defense (“DOD”) now delays LPRs access exemplifies

that promise.

As the military itself recognizes, however, the

Armed Forces have also struggled with a parallel

history of prejudice. From denying entry, to limiting job

options and advancement, to failing to address

intolerance, the military has at times practiced or

allowed discrimination on racial, gender, sexual

orientation/identity, and other grounds.

Discrimination has inflicted many harms on

servicemembers or potential servicemembers. Some

have been barred or discharged from service. Others

have seen their careers stall, unable to move vertically

into the officer ranks or horizontally into combat roles.

Some have suffered physical or psychological trauma.

Others have felt the effects in their wallets. The Policy,

by delaying accession into the military, contains

elements of all these harms.

Military discrimination has also hurt the military

itself. Most obviously, it long denied the Armed Forces

valuable pools of potential recruits. Discrimination or its

perception has also damaged morale, inflaming tensions

from the Civil War to the Vietnam War and inhibiting

integration today. And it has kept the officer corps

overly homogenous in an age when, more than ever, the

military has recognized the need for greater diversity.

The Policy reproduces many of these same institutional

harms.

Against the backdrop of the military’s struggles with

discrimination, the Mindes doctrine’s effect is

particularly pernicious. For the doctrine relies on

unpredictable judge-made factors to determine whether

military decisions can be challenged at all. Mindes thus

hinders efforts to end the sorts of governmental

discrimination that amici have long fought. Had Mindes

been in place nationwide, many of this Court’s cases

reviewing military policies on the merits would have

risked being dismissed as nonjusticiable, or at least

would have had to run an additional, artificial obstacle

course. And Mindes is also uncertain in scope, its

progeny having extended the doctrine beyond its core of

internal military decision-making. With such hazy

boundaries, Mindes poses a danger to antidiscrimination suits and other important efforts to

create a stronger American military.

ARGUMENT

I. IMMIGRANTS HAVE SERVED HONORABLY

THE

MILITARY

THROUGHOUT

AMERICAN HISTORY AND RECEIVED

CITIZENSHIP BENEFITS IN RETURN

The Ninth Circuit’s decision to refuse review in this

case gave short shrift to the long and valuable

partnership the military has enjoyed with American

immigrants. LPRs and other immigrants have served

with distinction throughout our nation’s history, and we

have long expedited citizenship for those who serve.

Many prominent names adorn the list of immigrants

who fought in the Revolutionary War. Alexander

Hamilton, born in Nevis, joined the budding Continental

Army in February 1776 as an artillery captain. Ron

Chernow, Alexander Hamilton 7, 72 (2004). George

Washington named Hamilton one of his aides-de-camp,

id. at 85, and Hamilton led three battalions that helped

capture the British redoubts at the Battle of Yorktown,

id. at 162-64. During the Quasi-War with France,

Hamilton served as Inspector General, second-incommand of the Army. Id. at 555, 560.

The self-styled Baron von Steuben, a Prussian

military officer, joined the Continental Army as a

lieutenant general. Ron Chernow, Washington: A Life

332 (2010). Steuben singlehandedly professionalized the

Army, drilling troops during their winter at Valley

Forge. Id. at 333. Steuben also developed an instruction

manual for drilling and marching so effective it was used

until the Civil War. Id.

The Marquis de Lafayette, a nineteen-year-old

French nobleman, became an honorary major general

and a Washington confidante. Id. at 297-98. He followed

Lord Cornwallis’s army through Virginia and took

charge of “impounding” the British forces at Yorktown.

John Ferling, Almost a Miracle: The American Victory

in the War of Independence 527 (2007). Lafayette

remains, perhaps, “America’s favorite fighting

Frenchman.” Original Broadway Cast, Guns and Ships,

Hamilton (Atlantic Records 2015).

Many other lesser-known immigrants also played

important roles in the Continental Army. French-born

Colonel Louis de Presle Duportail led the Army’s

engineers. Ferling 439. Polish-born Colonel Andrew

Thaddeus Kosciuszko commanded the engineers who

built West Point. Id. Scottish-born Robert Erskine

became army geographer, in charge of sketching war

zones. Id. at 339-40. Polish-born Casimir Pulaski became

master of horse. Id. at 440. The wider cast of soldiers,

too, contained many immigrants. By 1779, “[t]he army

boasted a ‘German Battalion’ and almost 50 percent of

the men in some Pennsylvania regiments were Irish

immigrants.” Id. German immigrants and Hessian

deserters alone made up 12% of the Continental Army.

Nancy Gentille Ford, Americans All!: Foreign-Born

Soldiers in World War I, at 47 (2001).

The following decades saw even greater service from

immigrants. Irish and German-born soldiers made up

47% of military recruits in the 1840s, as the MexicanAmerican War swelled the ranks. Id. at 48. During the

Civil War, even after a population-wide draft, foreignborn Americans comprised about 25% of the entire

Union Army and over 43% of its sailors. Don H. Doyle,

The Cause of All Nations: An International History of

the American Civil War 170 (2015).

Union States actively recruited immigrant soldiers,

often with polyglot advertisements. One New York

broadside from 1861, for instance, read: “Patrioti

Italiani! Honvedek! Amis de la liberté! Deutsche

Freiheits Kaempfer! (Italian patriots! Hungarians!

Friends of liberty! German freedom fighters!), ‘Arouse!

Arouse! Arouse!’” Id. at 160-61. The Union also

surreptitiously recruited in Europe. It issued Circular

19 to embassies across the continent, advertising

America’s abundance of cheap land and ample

opportunities—a tactic that more than doubled

immigration by the end of the war. Id. at 177-78. The

publicity campaign also accomplished its hidden military

recruitment goal, as many of those who immigrated

enlisted in the Union Army. Id.

Immigrants likewise played significant roles in the

past century’s wars. During World War I, the military

drafted nearly half a million immigrants into service.

Ford 3. Foreign-born draftees comprised 18% of the U.S.

military during the war. Id. Any man of eligible age who

had filed papers of citizenship intent qualified for the

draft, regardless whether he had completed the fiveyear residency the naturalization process otherwise

required. Id. at 48. Even many who had not yet filed

papers were swept up into the local drafts. Id. at 55-56.

Indeed, Marcelino Serna, an undocumented Mexican

immigrant, became Texas’s most decorated soldier in

the war. Marcelino Serna, Hispanic Medal of Honor

Society, https://tinyurl.com/yb7m29hs (last visited May

1, 2020).

During World War II, another 300,000 foreign-born

men enlisted or were drafted, 36% of whom were noncitizens. Watson B. Miller, Foreign Born in the United

States Army During World War II, With Special

Reference to the Alien, 6 Immigr. & Naturalization Serv.

Monthly

Rev.

48,

tbl.

(1948),

https://tinyurl.com/yb5odkrs. Again, all immigrant men

who had filed papers of citizenship intent were drafteligible; those who had not filed were later inducted, too.

Id. at 50.

This history of honorable service continues to the

present day. Over 530,000 living veterans were born

abroad. Jie Zong & Jeanne Batalova, Immigrant

Veterans in the United States, Migration Pol’y Inst.

(May 16, 2019), https://tinyurl.com/yby2935s. And more

than 20% of all Medal of Honor recipients are

immigrants. See Archive Statistics, Congressional Medal

of Honor Society, https://tinyurl.com/abeezdb (last

visited Apr. 17, 2020) (3,508 total recipients); USCIS

Facilities Dedicated to the Memory of Immigrant Medal

of Honor Recipients, U.S. Citizenship & Immigr. Servs.,

https://tinyurl.com/ydzbb9x2 (last updated Nov. 21,

2019) (over 700 immigrant recipients). Immigrants also

serve beyond their initial enlistments: according to one

study, the attrition rate for noncitizens is more than 10%

lower than for citizens. Muzaffar Chishti et al., Policy

Brief: Noncitizens in the U.S. Military: Navigating

National Security Concerns and Recruitment Needs,

Migration

Pol’y

Inst.

(May

2019),

https://tinyurl.com/ybkezatq. Non-LPRs deemed “vital”

to national security may enlist, as well, under the

Military Accessions Vital to the National Interest

(MAVNI) program. 10 U.S.C. § 504(b)(2).

In recognition of these contributions, America has

long offered expedited naturalization to immigrants who

join the military. See Darlene C. Goring, In Service to

America: Naturalization of Undocumented Alien

Veterans, 31 Seton Hall L. Rev. 400, 402 (2000). The

practice began with the country: some States promised

citizenship as a lure to recruit foreign soldiers during the

Revolutionary War. Zachary R. New, Ending

Citizenship for Service in the Forever Wars, 129 Yale

L.J. F. 552, 554 (2020). In 1862, Congress followed suit

by passing the Alien Soldiers Naturalization Act, which

replaced the papers-of-intent process and reduced the

residency requirement from five years to one for Army

enlistees. Goring 411-12. Congres extended the Act to

the Navy and Marines in 1894. Id. at 413.

Congress provided these expedited naturalization

procedures to World War I veterans in 1918, and

repeatedly extended the time for soldiers to use these

procedures. Id. at 415-17. Over 300,000 immigrants

became citizens after World War I under this legislation.

The Immigrant Army: Immigrant Service Members in

World War I, U.S. Citizenship & Immigr. Servs. (last

updated Mar. 5, 2020), https://tinyurl.com/v97c8rw.

In 1940, Congress further expanded expedited

naturalization to veterans who “honorably served at any

time,” and eliminated the residency requirement. Goring

419 (citation omitted). Statutes in 1942 and 1944

removed more barriers, including race and legal entry

requirements. Military Naturalization During WWII,

U.S. Citizenship & Immigr. Servs. (last updated Dec. 6,

2019), https://tinyurl.com/yaft4r92. Another 109,000

foreign-born veterans became citizens from 1943-1945.

New 554.

Then the Immigration and Nationality Act of 1952

(“INA”) “dramatically enlarged the class of persons

eligible for naturalization through military service,”

setting the baseline for modern expedited naturalization

statutes. Goring 426. Today, the INA provides two paths

to citizenship for military service, one for peacetime and

one for wartime. New 556. Since 9/11, the military has

operated under the latter version, 8 U.S.C. § 1440.

Under this statute, any noncitizen who serves honorably

in the military and who enlists within the U.S. or

becomes an LPR after enlistment may become a

citizen—even while still serving. 8 U.S.C. § 1440(a).

Section 1440 and its peacetime counterpart, 8 U.S.C.

§ 1439, fulfill America’s promise to the many immigrants

who serve our country in uniform.

II. THE

MILITARY’S

HISTORY

DISCRIMINATION

HAS

HARMED

SERVICEMEMBERS AND THE MILITARY

ITSELF

Despite this long history of welcoming foreign-born

servicemembers, the military has wrestled with

discrimination against various minority groups. Such

discrimination inflicts myriad harms against its intended

victims. But it also backfires against the military itself,

weakening the Armed Forces from within.

A. The

Military

Has

Grappled

Discrimination for Two Centuries

with

Just like the country as a whole, the military has

evolved in its treatment of minority groups. As the

Army itself has recognized, the military “is not entirely

a reflection of American society. It has discriminated

over the years against a variety of American citizens

that it has deemed unfit for service.” The Army and

Diversity,

U.S. Army

Ctr.

of Mil.

Hist.,

https://tinyurl.com/yadnvwf4 (last visited Apr. 17, 2020).

Indeed, “African-Americans, Hispanic-Americans,

Asian-Americans, women and homosexuals have at

various times been banned from service, allowed in only

in small numbers, or allowed in only under special

conditions.” Id.

Race Discrimination: As early as 1775, Congress

prohibited black Americans from enlisting in the Army.

Ferling 341. When military need finally convinced the

Union to accept black servicemembers during the Civil

War, it fomented political backlash and inflamed racial

tensions. James McPherson, Battle Cry of Freedom: The

Civil War Era 563, 565 (1988). Black regiments “were

segregated, given less pay than white soldiers,

commanded by white officers … and intended for use

mainly as garrison and labor battalions.” Id. at 565.

The military continued to employ race-based

structures for the next eight decades. During World

War I, for instance, Congress employed separate

“white” and “black” drafts. Kristy N. Kamarck, Cong.

Research Serv., R44321, Diversity, Inclusion, and

Equal Opportunity in the Armed Services: Background

and Issues for Congress 12 (June 5, 2019),

https://tinyurl.com/y8wu9nk6.

Hispanic,

NativeAmerican, and Asian-American draftees were usually

treated as “white,” but some States drafted ChineseAmericans as “black.” Id. at 12-13. Congress repeated

these separate race-based drafts in World War II and

maintained a 10% quota for black soldiers. Id. at 13. The

Army “did not allow black officers to outrank or

command white officers in the same unit,” creating racial

imbalances among the officer corps. Id. Some JapaneseAmerican soldiers, meanwhile, were discharged after

Pearl Harbor out of race-based suspicion. Id.

The Army largely integrated in the 1950s, though

discrimination persisted. Id. at 15. Racial and

socioeconomic disparities in draft deferments during the

Vietnam War caused a perception that draft boards

disproportionately chose black men for combat. Id. at 17.

Perceived patterns of bias sparked violent incidents, and

even a full-scale race riot, at military institutions. Id. at

18. To this day, minority servicemembers are disciplined

at higher rates and remain underrepresented as officers.

Id. at 19-20.

Sex Discrimination: Women have long faced

discrimination in the military, as well. The military first

admitted women only as nurses, in the Army and Navy

Nurse Corps. Id. at 23. Over 13,000 women enlisted in

the Corps during World War I, but they “were not

eligible for retirement or veterans’ benefits.” Id. The

military finally created women’s auxiliaries to the

services in World War II, and over 350,000 women

served as mechanics, air traffic controllers, and

instructors—and even fighter pilots. Id. at 23-24. But

none served in direct combat roles, and even the pilots

“were not afforded military benefits or given veteran

status until 1977.” Id. at 24.

Even when Congress integrated women into the

military proper in 1948, it retained overtly gender-based

policies. Women could not serve in combat or rise in rank

above lieutenant colonel/commander. Id. Congress set

quotas for women, at 2% of servicemembers and 10% of

officers. Id. And until this Court declared the practice

unconstitutional,

male

spouses

female

servicemembers had to prove dependency to receive

survivors’ benefits. Frontiero v. Richardson, 411 U.S.

677, 678-79 (1973) (plurality opinion).

Helped along by federal statutes, discrimination has

declined in recent decades. Still, only in 2015 did DOD

first open combat positions to women. Kamarck 29.

Sexual assault remains a serious concern. Id. at 28-29;

see Women in the Military: Where They Stand, Serv.

Women’s Action Network (“SWAN”) 20 (10th ed. 2019),

https://tinyurl.com/yasrwdms. And like minority

servicemembers, women are underrepresented in the

senior officer ranks. Kamarck 30; SWAN 19.

Sexual

Orientation

Gender

Identity

Discrimination: Unlike its racial and gender

restrictions, the military’s explicit ban on LGBTQ

servicemembers is of recent vintage. Kamarck 34. But

the military long used indirect means to achieve the

same ends. The Continental Army discharged its first

soldier for homosexuality in 1778. Freedom to Serve

Guide,

OutServe-SLDN

(2d

ed.

2018),

https://tinyurl.com/y97wp9fv. And Article 93 of the

Articles of War, introduced during World War I and

approved by Congress in 1920, classified sodomy as a

crime. Id.; see Kamarck 33 & n.157. Army directives

issued in 1941 went further, barring men with

“homosexual proclivities,” many of whom were deemed

to have “psychopathic personality disorders.” Allan

Berube, Coming Out Under Fire: The History of Gay

Men and Women in World War Two, at 12 (1990).

Similar policies followed for the rest of the century.

The Uniform Code of Military Justice re-codified the

sodomy prohibition in 1951. OutServe-SLDN 3. Two

years later, President Eisenhower issued Executive

Order 10450, which listed “sexual perversion”—

including homosexuality—as a security ground for firing

federal employees. Id.; see Kamarck 34. The military

used Order 10450 to fire transgender servicemembers,

as well. OutServe-SLDN 3. In 1981, DOD revised

Directive

1332.14

state,

flat-out,

that

“[h]omosexuality is incompatible with military service.”

Kamarck 35 (citation omitted). The military also applied

medical regulations in the 1980s to remove transgender

servicemembers. OutServe-SLDN 3.

By the 1990s, these anti-LGBTQ directives came

under fire. A 1988 DOD report found that homosexuality

posed no national security threat. Id. Yet in 1994

Congress codified the military’s policies against LGB

service. Kamarck 36. In compromise, Congress also

passed Don’t Ask, Don’t Tell (“DADT”), which forbade

DOD from asking questions about, and servicemembers

from speaking about, servicemembers’ sexuality. Id.

LGB Americans could now serve in the military, though

they had to remain closeted. OutServe-SLDN 4. The

military discharged over 13,000 servicemembers under

DADT. Kamarck 37. Several organizations, including

the precursor to amicus Modern Military Association of

America, formed to challenge DADT. OutServe-SLDN

4. The policy finally met its end in 2010. Kamarck 38.

But other forms of discrimination remained. Until

this Court declared the Defense of Marriage Act

unconstitutional, United States v. Windsor, 570 U.S. 744

(2013), DOD refused benefits to same-sex married

couples, Kamarck 38-39. DOD has also “treated the

physical and psychological aspects of transgender

conditions as disqualifying conditions” for service. Id. at

40. DOD briefly lifted this ban in 2016, but in 2017 and

2018 re-imposed it as to anyone with gender dysphoria.

Id. at 41-42. Legal challenges to the ban are ongoing. See,

e.g., Karnoski v. Trump, No. 17-cv-1297 (W.D. Wash.

filed Aug. 28, 2017).

B. Discrimination in

Servicemembers

the Military Harms

and

Potential

Throughout

American

history,

military

discrimination has hurt those against whom it was

practiced. It long prevented qualified applicants from

joining the military at all—and, in some cases, continues

to do so. For centuries, prejudice also kept minority and

female soldiers from combat duty and saddled them with

support roles. See supra Part II.A.

Discrimination also has less obvious effects. For

instance,

gender

discrimination

has

caused

servicemembers physical and psychological harm. See

Carl Andrew Castro et al., Sexual Assault in the

Military, 17 Current Psychiatry Rep. 54, 55-56 (2015),

https://tinyurl.com/y9supxw4. In DOD’s 2018 annual

review, 24.2% of servicewomen and 6.3% of servicemen

reported being sexually harassed in the past year; 6% of

servicewomen and 0.7% of servicemen reported being

sexually assaulted. Department of Defense Annual

Report on Sexual Assault in the Military: Fiscal Year

2018,

Dep’t

Def.

(2019),

https://tinyurl.com/y88k7fbr. These servicemembers

exhibit higher rates of physical and psychological health

symptoms, including PTSD, depression, and risky

behaviors. Ashley C. Schuyler et al., Military Sexual

Assault (MSA) Among Veterans in Southern

California, 23 Traumatology 223, 228-29 (2017),

https://tinyurl.com/ycf9pmnm.

Discriminatory

actions

have

also

caused

servicemembers financial harm. Under the Militia Act of

1862, for example, “blacks enrolled in the [Union Army]

were regarded as laborers and paid several dollars a

month less than white soldiers.” McPherson 789. They

finally received partial retroactive pay equity in 1864,

after sustained protests by abolitionists and threats of

mutiny among black soldiers. Id. Only those who were

already free before the war began got full back-pay. Id.

Official quotas and unofficial practices alike also limited

black and female servicemembers from rising through

the officer ranks. Kamarck 13-14, 20-21, 24-25. Reduced

career prospects translated into reduced financial ones.

The Policy follows in the footsteps of these historical

wrongs. Of course, the Policy hurts LPRs by delaying

their path to citizenship. Congress provides a right to

expedited naturalization for LPRs who engage in active

service during periods of “armed conflict with a hostile

foreign force.” 8 U.S.C. § 1440(a). But the Policy places

LPRs’ enlistments on hold for 350 days on average. Pet.

App. 32a. Thus, under the Policy, LPRs lose nearly a

year in which they would otherwise have been U.S.

servicemembers and American citizens.

Enlistment delays likewise harm LPRs’ career

prospects. The Policy can cause “loss of designation,”

where accession delays deprive enlistees of their careertrack designations. LPRs who lose designation may be

deprived of the specialized skills needed to advance in

the military. Petitioners’ experiences exemplify this

concern. Mr. Kuang’s designation changed from

personnel specialist (“PS”) to “undesignated,” placing

him on a separate career track with mainly manual-labor

responsibilities and lower advancement rates. See Navy

Administrative Policy (“NAVADMIN”) 118/18 (May 14,

2018); Pet. App. 16a. Similarly, a military recruiter

informed Mr. Cooke that the auto mechanic designation

for which he joined may be unavailable by the time he

can enlist under the Policy. Pet. App. 16a.

Loss of designation also hurts post-military career

prospects. Mr. Kuang’s initial designation is similar to a

human resources specialist; the skills he would have

learned would transfer to civilian human resources jobs.

As an undesignated Sailor, that is no longer so.

Likewise, Mr. Cooke’s auto mechanic designation would

allow him to seek civilian jobs as a mechanic after his

time in the military. As an undesignated Airman, that,

too, is no longer true.

The Policy’s delay likewise causes both short- and

long-term financial harm to affected enlistees. While

they await their delayed enlistments, LPRs must

scramble to find employment with little certainty as to

when they may be called to duty. Mr. Kuang, for

instance, did not apply to college in anticipation of

entering active service, and he has faced difficulties in

finding interim employment or education. Pet. App. 16a.

Mr. Cooke had resigned his job in anticipation of

shipping out; while he regained his job after the Air

Force delayed his ship-out date, he could not further his

career because of uncertainty as to when he would leave.

Id. The Policy also has downstream effects: delayed

accession means delayed salaries, delayed raises, and

delayed advancement.

C. Discrimination Hurts the Military

While discrimination in the military clearly harms its

targets, prejudice also harms the military itself.

First, by banning or limiting service by various

minority groups, the military deprived itself of available

personnel. States only began recruiting black soldiers

for the Continental Army in 1778, as “indomitable

recruiting woes” broke down Washington’s and other

officials’ resistance to arming African-Americans.

Ferling 341-42. The need became so dire that, by the end

of the war, black soldiers rose from merely “a few score”

to perhaps 10% of the Army. Id. at 341, 344. Likewise,

Congress only authorized enrollment of black soldiers

during the Civil War because of a manpower shortage:

funneling black enlistees into labor battalions would free

white soldiers for combat. McPherson 564.

And, of course, forbidding women from serving left

untapped half the population. The Continental Army

banned female enlistment but employed soldiers’ wives

and other “camp followers” as nurses, laundresses, and

officers’ housekeepers. Ferling 428-29. During the Civil

War, too, women acted mainly as nurses, and female

slaves were pressed into service in Confederate military

hospitals. McPherson 478-81. Despite severe troop

shortages in these and other wars, the military did not

accept women in the services until World War II. But

today, even without a draft or an all-gender Selective

Service system, 216,000 women serve on active duty—

61% of them minority women. SWAN 17.

DADT, too, led to 13,000 discharges and likely

discouraged thousands of LGB Americans from

attempting to enlist. Gary J. Gates, Effects of “Don’t

Ask, Don’t Tell” on Retention Among Lesbian, Gay and

Bisexual Military Personnel, Williams Inst. 1 (2007),

https://tinyurl.com/yc9uystj; Kamarck 36-37.

Discrimination also harms morale. Lower pay, worse

assignments, and rampant racism led black soldiers to

threaten mutiny during the Civil War. Rick Beard,

Black Union Soldiers Fought a Costly Battle for Equal

Pay, Military Times (Feb. 12, 2018), https://

https://tinyurl.com/yaozvgch. Racial tensions—ranging

from slurs, to riots, to murders by grenade of disliked

officers—also contributed to the Army’s breakdown

during the Vietnam War. Max Hastings, Vietnam: An

Epic Tragedy, 1945-1975, at 526, 528-30 (2018).

More recently, studies of gender integration found

that concerns about sexual harassment and assault hurt

morale. Margaret C. Harrell & Laura L. Miller, New

Opportunities for Military Women: Effects Upon

Readiness, Cohesion, and Morale 73-77 (1997),

https://tinyurl.com/ydyk94wh. The military’s experience

with DADT likewise found that the anti-LGB policy

damaged morale. See, e.g., Jeremy T. Goldbach & Carl

Andrew Castro, Lesbian, Gay, Bisexual and

Transgender (LGBT) Service Members: Life After Don’t

Ask, Don’t Tell, 18 Current Psychiatry Rep. 56, 57

(2016), https://tinyurl.com/yclsdb83.

Finally, discrimination hampers the military’s efforts

to foster diversity. As former military officials have

repeatedly advised this Court, “a highly qualified,

racially and ethnically diverse officer corps is essential

to the effectiveness of the Armed Forces.” Brief of Lt.

Gen. Julius W. Becton, Jr. et al. at 2, Fisher v. Univ. of

Tex. at Austin, 136 S. Ct. 2198 (2016) (No. 14-981), 2015

WL 6774556 (“Fisher Br.”); see id. at 1-2 & n.2 (citing

similar prior briefs). Indeed, by the 1970s, racial

alienation compounded by a lack of minority officers

“caused the Armed Forces to teeter ‘on the verge of selfdestruction.’” Id. at 8 (citation omitted).

Officer diversity is vital to military cohesion and

institutional legitimacy. Id. at 9; see Mil. Leadership

Diversity Comm’n (“MLDC”), From Representation to

Inclusion: Diversity Leadership for the 21st-Century

Military,

Final

Report

14-15

(2011),

https://tinyurl.com/yc4djyrk. The post-9/11 landscape

has only increased the premium on officer-corps

diversity. Fisher Br. 9-12. Historically, however, the

same quota systems and policies that limited female and

minority enlistment kept the officer ranks more

homogenous than they would otherwise be. See supra

Part II.A. While many of those overt restrictions have

disappeared, a number of “structural and perceptual”

barriers remain at each stage of military advancement.

MLDC 46.

At times, the government itself has recognized the

negative implications of such policies. The President’s

Committee on Equality of Treatment and Opportunity

in the Armed Forces, formed by President Truman,

found “that existing segregation policies were

contributing to inefficiencies through unfilled billets,

training backlogs, and less capable units.” Kamarck 14.

In 2009, concern about diversity in military leadership

prompted Congress to establish the Military Leadership

Diversity Commission. MLDC vii. The military also

acknowledges that policies that differentiate based on

group characteristics are “contrary to good order and

discipline and [are] counterproductive to combat

readiness and mission accomplishment.” DoD Directive

1350.2 §4.2 (Aug. 18, 1995).

The challenged Policy repeats the same harms as

past discriminatory practices. As in times past, today’s

military faces personnel shortages. Meghann Myers, The

Army Is Supposed to Be Growing, But This Year, It

Didn’t At All, Army Times (Sept. 21, 2018),

https://tinyurl.com/yxr62bet. Immigrants help meet this

shortfall, but the Policy removes “an important benefit

of military service” that the military had used “as a

recruiting tool.” Pet. App. 84a. LPR servicemembers

also provide valuable cultural and linguistic diversity

and volunteer at a rate disproportionate to their citizen

counterparts. Both the MLDC and the DOD itself have

recognized the vital importance of such diversity.

Defense Language Transformation Roadmap, Dep’t of

Def., 3 (Jan. 2005), https://tinyurl.com/ycck4jxt; MLDC

17. Delays in accession and declining recruitment thus

deprive the military of valuable manpower and

knowledge. The Policy will also cause fewer LPRs to

reach senior positions, creating a less diverse military

leadership. Without doubt, the Policy harms the

military—and, as Petitioners proved, DOD has shown no

corresponding benefit. Pet. App. 85a.

III.THE MINDES DOCTRINE MAKES IT MORE

DIFFICULT TO COMBAT DISCRIMINATION

IN THE MILITARY

Discrimination in the military has not just been

harmful to servicemembers and the Armed Forces; it

has been, in many cases, illegal. But the Mindes doctrine

artificially constricts access to the courts when military

policies are at issue. Mindes distorts the presumption of

judicial review of government action, erecting a lawless

barrier to challenging unlawful military discrimination.

The Mindes doctrine requires those bringing

discrimination or other claims against the military to

navigate an obstacle course merely to seek review.

Plaintiffs must first raise the correct sorts of claims and

prove “exhaustion of available intraservice corrective

measures.” Mindes, 453 F.2d at 201. They then must

pass a four-part test weighing “the substance of th[eir]

allegation in light of the policy reasons behind nonreview

of military matters.” Id. One factor is “[t]he nature and

strength of the … challenge.” Id. Mindes thus

“intertwines the concept of justiciability with the

standards to be applied to the merits of the case.”

Dillard v. Brown, 652 F.2d 316, 323 (3d Cir. 1981). It also

examines the plaintiffs’ injury, the “anticipated

interference with the military function,” and the military

expertise involved. Mindes, 453 F.2d at 201. Mindes

thereby lets judges refuse review of even constitutional

claims, based only on their free-floating conjecture that

“the remedy sought … would be so disruptive to military

service that the claim should not be entertained.”

Holdiness v. Stroud, 808 F.2d 417, 423 (5th Cir. 1987).

Indeed, as its elements suggest, the Mindes

framework operates similarly to “application of the

preliminary injunction factors.” Roe v. Dep’t of Def., 947

F.3d 207, 218 (4th Cir. 2020) (citation omitted). That

comparison underlines Mindes’s deficiencies. This Court

has often counseled that preliminary injunctions are “an

extraordinary remedy.” Benisek v. Lamone, 138 S. Ct.

1942, 1943 (2018) (citation omitted). By layering Mindes

atop the traditional deference the military receives on

the merits, lower courts replace the presumption of

judicial review with a preliminary-injunction-like

skepticism of justiciability. Which is ironic, since this

Court’s touchstone case on the preliminary injunction

standards itself concerned internal military policy—and

examined the plaintiffs’ statutory claim on the merits.

See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 12

(2008) (claim “that the Navy’s sonar-training program

harmed marine mammals, and that the Navy should

have prepared an environmental impact statement”).

To best illustrate the potential danger and hazy

scope of the Mindes doctrine, consider the implications

if it had been adopted nationwide. This Court has

decided on the merits many cases involving internal

military matters. Yet under Mindes, these same cases

could have been dismissed as unreviewable. For

instance, in Brown v. Glines, 444 U.S. 348, 349 (1980), the

Court heard a First Amendment and statutory challenge

to Air Force regulations requiring servicemembers to

obtain approval from their commanders before

circulating petitions on Air Force bases. With nary a

word on justiciability, the Court gave Glines’s claims a

full airing on the merits. Id. at 353-61; see also Greer v.

Spock, 424 U.S. 828, 838 (1976) (reviewing on the merits

similar regulations at Fort Dix).

Mindes poses an even graver threat in discrimination

cases, because the injuries discriminatory policies

impose—and the concomitant costs of denying review—

are all the greater. Consider a sampling of the cases to

which Mindes would apply. In Greer, the Court

addressed bans on political speeches or leaflets. 424 U.S.

at 838-39. Likewise, this Court has reviewed a Free

Exercise Clause challenge to an Air Force regulation

that prohibited wearing “headgear,” including

yarmulkes, indoors. Goldman v. Weinberger, 475 U.S.

503, 509 (1986). Under Mindes, however, such First

Amendment claims—and, indeed, a host of Religious

Freedom Restoration Act claims, see United States v.

Sterling, 75 M.J. 407, 410 (C.A.A.F. 2016) (RFRA

“applies in the military context”)—might never make it

past the justiciability stage. See Khalsa v. Weinberger,

787 F.2d 1288, 1289 (9th Cir. 1985) (finding

nonreviewable a First Amendment challenge to a

Goldman-like regulation).

Mindes could also have hindered lower-court review

of discriminatory policies some amici fought. In Phillips

v. Perry, 106 F.3d 1420, 1424 (9th Cir. 1997), a sailor

discharged under DADT challenged both the DADT

statute and DOD’s implementing regulations under the

Equal Protection Clause. The court upheld the policy

under rational basis review. Id. at 1427. But it did so on

the merits. Under Mindes, the court could have applied

an even lower standard: non-reviewability. Likewise,

the Fourth Circuit considered a challenge by amicus

Modern Military Association of America to military

regulations of servicemembers with HIV—but it had to

work through Mindes first. See Roe, 947 F.3d at 218.

Amicus SWAN has also challenged genderdiscriminatory policies that continue to bar women from

serving in combat roles. Serv. Women’s Action Network

v. Mattis, 320 F. Supp. 3d 1082 (N.D. Cal. 2018). Bound

by circuit precedent, the district court applied Mindes,

but it found the claim reviewable. Id. at 1092-97. The

court later ruled that SWAN pleaded a plausible equal

protection claim. Serv. Women’s Action Network v.

Mattis, 352 F. Supp. 3d 977, 992 (N.D. Cal. 2018). But the

case has not yet been appealed; a circuit panel might

favor stricter application of Mindes, as did the panel in

this case. A different district judge, too, could well have

dismissed this meritorious claim as unreviewable.

Suits challenging personnel decisions and policies are

Mindes’s bread-and-butter. But Mindes has also limited

servicemembers’ ability to clear their names following

courts-martial. See, e.g., Daugherty v. United States, 73

F. App’x 326, 331 (10th Cir. 2003) (applying Mindes to

dismiss APA claim brought by retired commander, who

sought “expungement from his military record of all

court martial actions, findings, and conclusions”); Tatum

v. United States, No. CIV.A. RDB-06-2307, 2007 WL

2316275, at *2, *5 (D. Md. Aug. 7, 2007) (applying Mindes

to bar collateral Fifth and Eighth Amendment

challenges to court-martial convictions), summarily

aff’d, 272 F. App’x 251 (4th Cir. 2008).

And some courts have even applied Mindes against

civilians, reasoning that “[s]ome decisions, by their

nature, are inherently military, regardless of who the

plaintiff is.” Meister v. Texas Adjutant Gen.’s Dep’t, 233

F.3d 332, 340 (5th Cir. 2000) (challenge by civilian to

hiring decisions); cf. Bledsoe v. Webb, 839 F.2d 1357, 1360

(9th Cir. 1988) (allowing contractor’s Title VII claim to

proceed “since the plaintiff is not a member of the

‘military services’ and since no policy or function is

implicated which is unmistakably military in nature”

(emphasis added)). Such cases raise the prospect that

Mindes could extend to outward-facing military orders.

In short, the panel below dismissed a strong APA

challenge to a discriminatory policy, under a doctrine

indeterminate in both scope and application. But

“military decisions are not … immune from judicial

review, and here, Congress has provided for review

through the APA.” Roe, 947 F.3d at 230; see Dep’t of

Commerce v. New York, 139 S. Ct. 2551, 2567 (2019)

(APA “embodies a ‘basic presumption of judicial

review’” (citation omitted)). This Court should grant the

petition in this case, reverse Mindes, and allow that

congressionally-mandated review to move forward.

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,

MAY 4, 2020

IAN HEATH GERSHENGORN

Counsel of Record

NOAH BOKAT-LINDELL

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6869

igershengorn@jenner.com

APPENDIX

Appendix A – List of Amici

American GI Forum

https://agifus.com/index.php/en/home-en-gb/about-agif

Center for Law and Military Policy

https://centerforlaw.org

Military Officers Association of America

https://www.moaa.org/content/about-moaa/mission

Minority Veterans of America

https://www.minorityvets.org

Modern Military Association of America

https://modernmilitary.org/about

Mr. C. Dixon Osburn, former Executive Director,

Center for Justice and Accountability; former cofounder and Executive Director, Servicemembers Legal

Defense Network

Service Women’s Action Network

https://www.servicewomen.org/who-we-are/#about

Hon. Gordon O. Tanner, former General Counsel, U.S.

Department of the Air Force; former Governor of Wake

Island

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.