Petition for Writ of Certiorari — National Coalition for Men, et al., Petitioners v. Selective Service System, et al.
Supreme Court briefMar 3, 2026
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No. __________
In the Supreme Court of the United States
________________________
NATIONAL COALITION FOR MEN, TYLER MCNAMARA,
CONOR MCKIERNAN, NICHOLAS MILILLO, NICOLAS
MENDIOLA, AND JORDAN FALCON,
Petitioners,
v.
SELECTIVE SERVICE SYSTEM, ET AL.
Respondents.
___________________________________________
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
___________________________________________
$33(1',;
___________________________________________
Nadine Lewis
Counsel of Record
NADINE LEWIS,
ATTORNEY AT LAW
1305 Pico Blvd
Santa Monica, CA 90405
(424) 228-5109
nadine@nadine.esq
Attorney for Petitioners
March 3, 2026
United States Commercial Printing Company • www.uscpc.us • (202) 866-8558
App-i
APPENDIX
TABLE OF CONTENTS
I. Opinions and Orders: Present Matter
Appendix A
Memorandum, United States Court of Appeals for
the Ninth Circuit, National Coalition for Men v.
Selective Service System,
No. 24-7746 (Dec. 4, 2025) ............................. App-1
Appendix B
Judgment, United States District Court for the
Central District of California, National Coalition
for Men v. Selective Service System,
No. 2:24-cv-04016 AB (December 9, 2024) ... App-14
Appendix C
Order [Motion to Dismiss Granted], United
States District Court for the Central District of
California, National Coalition for Men v. Selective
Service System,
No. 2:24-cv-04016 AB (Nov. 20, 2024) .......... App-15
Appendix D
Complaint, United States District Court for the
Central District of California, National Coalition
for Men v. Selective Service System,
No. 2:24-cv-04016 AB (May 14, 2024) .......... App-29
App-ii
II. Opinions and Orders:
Prior 2021 NCFM Litigation
Appendix E
Statement of Sotomayor, J., Supreme Court of the
United States, National Coalition for Men, et al.
v. Selective Service System, et al.,
No. 20-928 (Jun. 7, 2021)
(Reported at 593 U.S. ___ (2021)) .............. App-54
Appendix F
Order, United States Court of Appeals for the
Fifth Circuit, National Coalition for Men v. Selective Service System,
No. 19-20272 (Aug. 13, 2020)
(reported at 969 F.3d 546) ........................ App-58
Appendix G
Memorandum Opinion and Order, United States
District Court for the Southern District of Texas,
National Coalition for Men v. Selective Service
System,
No. 4:16-cv-03362 (Apr. 29, 2019)
(reported at 355 F. Supp. 3d 568) ............ App-66
Appendix H
Memorandum Opinion and Order, United States
District Court for the Southern District of Texas,
National Coalition for Men v. Selective Service
System,
No. 4:16-cv-03362 (Feb. 22, 2019) ................ App-71
App-iii
Appendix I
Memorandum Opinion and Order, United States
District Court for the Southern District of Texas,
National Coalition for Men v. Selective Service
System,
No. 4:16-cv-03362 (Apr. 6, 2018) .................. App-98
III. Opinions and Orders: Parallel Litigation
Appendix J
Application to Extend Time to File Writ of Certiorari, Supreme Court of the United States,
Vikram Valame v. Donald J. Trump, President of
the United States, et al.,
No. 25A835 (Jan. 21, 2026) ....................... App-107
Appendix K
Order and Opinion, United States Court of Appeals for the Ninth Circuit, Valame v. Trump, et
al.,
No. 24-669 (Nov. 4, 2025) (reported) ........... App127
Appendix L
Order [Motion to Dismiss Granted], United
States District Court for the Northern District of
California, John Doe, et. al. v. Selective Service
System, et al.,
No. 23-cv-02403-JST (Nov. 20, 2024) ........ App-132
App-iv
Appendix M
Opinion, United States District Court for the District of New Jersey, Elizabeth Kyle-Labell, et al.
v. Selective Service System, et al.,
No. 15-5193 (ES)(JAD) (Mar. 4, 2019 ...... App-144
IV.Constitutional Provisions, Statutes, and
Rules
Appendix N
U.S. Constitution Article III, Section 2,
Clause 1 ................................................... App-184
Appendix O
Federal Rules of Civil Procedure 15 .......... App-186
Appendix P
U.S. Constitution Due Process Clause of 5th
Amendment ............................................. App-201
Appendix Q
50 U.S. Code Chapter 49 - Military Selective
Service Act .............................................. App-202
App-1
Appendix A
[Filed: Dec. 4, 2025]
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL COALITION
FOR MEN, a 501(c)(3)
non-profit organization;
TYLER MCNAMARA, an
individual; CONOR
MCKIERNAN; NICHOLAS
MILILLO, an individual;
NICOLAS MENDIOLA, an
individual; JORDAN
FALCON, an individual,
Plaintiffs - Appellants,
No. 24-7746
D.C. No.
2:24-cv-04016-AB-E
MEMORANDUM
v.
SELECTIVE SERVICE
SYSTEM; JOEL C.
SPANGENBERG, as acting
Director of Selective Service
System,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
André Birotte, Jr., District Judge, Presiding
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
App-2
Argued and Submitted October 10, 2025
Pasadena, California
Before: RAWLINSON, MILLER, and JOHNSTONE,
Circuit Judges.
The National Coalition for Men (“NCFM”) and five
of its individual members appeal the Rule 12(b)(6) dismissal of their claim that the Military Selective Service Act’s (“Act”) male-only registration requirement
violates equal protection under the Fifth Amendment.
Because Plaintiffs lack Article III standing, we vacate
the district court’s grant of the 12(b)(6) motion and
remand with instructions to dismiss this case without
prejudice.
Plaintiffs have not shown that the named individual members have suffered a redressable injury. See
Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 180–81 (2000). They allege
that each individual is a male age 18 to 26 who “has
recently registered for the military draft as is required of him as a male” and request injunctive and
declaratory relief. But because each individual member has already completed the one-time registration,
there is no ongoing injury that can be remedied by the
prospective relief that plaintiffs seek. See Renee v.
Duncan, 686 F.3d 1002, 1013 (9th Cir. 2012) (plaintiffs must show that a court decision would cause a
“change in legal status” that would “directly redress[]
the injury suffered”); Summers v. Earth Island Inst.,
555 U.S. 488, 495 (2009) (rejecting standing based on
a “past injury rather than imminent future injury that
App-3
is sought to be enjoined”). And no individual has alleged facts suggesting that he intends to move or update his registration information before 26, so any injury based on a continuing obligation to keep one’s
contact information up to date with the Selective Service is too speculative to confer standing. See Lujan v.
Defs. of Wildlife, 504 U.S. 555, 564 (1992).
Plaintiffs have also not shown that NCFM has associational standing. NCFM alleges that “[s]ome of
NCFM’s members are males 18-26 or who will be 1826 at some time relative to this lawsuit” and are thus
subject to the Act, but NCFM does not specifically
identify any individual members who would have
standing to sue on any grounds other than the named
individuals, all of whom have already registered. See
Summers, 555 U.S. at 498 (plaintiff-organizations
must “make specific allegations establishing that at
least one identified member had suffered or would suffer harm”); Associated Gen. Contractors of Am., San
Diego Chapter, Inc. v. Cal. Dep’t of Transp., 713 F.3d
1187, 1194–95 (9th Cir. 2013). Accordingly, neither
this Court nor the district court has subject-matter jurisdiction to hear this case. 1
1
For the first time on appeal, NCFM suggests it has organiza-
tional standing. See FDA v. All. for Hippocratic Med., 602 U.S.
367, 393–94 (2024). Because it did not plead facts sufficient to
establish organizational standing in its complaint, it does not
change our conclusion. See id. at 395.
App-4
VACATED and REMANDED with instructions
to dismiss without prejudice for lack of standing. 2
2
Each side shall bear its own costs on appeal.
App-5
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App-6
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App-7
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App-8
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Appendix B
[C.D. Cali. ECF No. 26]
[Filed: Dec. 9, 2024]
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
NATIONAL COALITION
FOR MEN, et al.,
Plaintiffs,
v.
CASE NO.:
2:24-cv-04016
[PROPOSED]
JUDGMENT
SELECTIVE SERVICE
SYSTEM, et al.,
Defendants.
Pursuant to Federal Rule of Civil Procedure 58(a),
the Court ORDERS and ENTERS JUDGMENT for
Defendants Selective Service System and Joel C.
Spangenberger, in his capacity as acting Director of
Selective Service, and against Plaintiffs National Coalition for Men, Tyler McNamara, Conor McKeirnan,
Nicholas Milillo, Nicolas Mendiola, and Jordan Falcon, as follows:
Plaintiffs’ complaint, ECF No. 1, is DISMISSED,
WITH PREJUDICE, for the reasons stated in the
Court’s Order Granting Motion to Dismiss dated November 20, 2024, ECF No. 24.
Dated: December 9, 2024 /s/ André Birotte Jr.
Hon. André Birotte Jr.
U.S. District Judge
App-15
Appendix C
[C.D. Cali. ECF No. 24]
[Filed: Nov. 20, 2024]
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
NATIONAL COALITION
FOR MEN, et al.,
Plaintiffs,
v.
SELECTIVE SERVICE
SYSTEM, et al.,
Defendants.
CASE NO.:
2:24-cv-04016 AB
ORDER
GRANTING
MOTION TO
DISMISS
[DKT. NO. 16]
Before the Court is a Motion to Dismiss (“Motion,”
Dkt. No. 16-1) filed by the Selective Service System
(“Selective Service”) and Joel C. Spangenberg (“Spangenberg”) in his official capacity as Acting Director of
the Selective Service (collectively, “Defendants”).
Plaintiffs National Coalition for Men (“NCFM”) and
individual NCFM members Tyler McNamara, Conor
McKiernan, Nicholas Milillo, Nicolas Mendiola, and
Jordan Falcon (the “Individual Plaintiffs”) (collectively, “Plaintiffs”) opposed the Motion and Defendants replied. The Court finds this matter appropriate
for decision without oral argument, and the hearing
set for November 22, 2024, is VACATED. See Fed. R.
Civ. P. 78(b); C.D. Cal. R. 7-15. For the following
App-16
reasons, the Court DENIES Defendants’ Rule 12(b)(1)
Motion and GRANTS Defendants’ Rule 12(b)(6) Motion.
I.
BACKGROUND
A. Factual Background
This is a case about the constitutionality of the Military Selective Service Act’s (the “Act”) requirement
that male citizens and immigrants between the ages
of eighteen and twenty-six register with the Selective
Service to facilitate their conscription in the event of
a military draft. (Compl. ¶ 1, Dkt. 1.) Under the Act,
men are required by law to register within thirty days
of their 18th birthdays and have a continuing obligation to notify the Selective Service within ten days of
any changes to the information they provided on their
registration cards, such as a change of address. (Id. ¶
32.) Failure to register is a felony punishable by a fine
of up to $250,000 and/or five (5) years imprisonment.
(Id. ¶ 3.) Young men who fail to register may also be
ineligible for certain federal and state employment
and job training under the Workforce Innovation and
Opportunity Act. (Id.) The Act does not require any
females of draft-age to register. (Id. ¶¶ 2, 62.)
Plaintiffs allege that the Act’s requirement that
only men—and not women—register with the Selective Service discriminates against men on the basis of
sex and thus violates the U.S. Constitution’s Fifth
Amendment Equal Protection and Due Process
Clauses. (Id. ¶¶ 7, 9, 16, 60–64.) Plaintiffs seek
App-17
declaratory and injunctive relief compelling the Selective Service “to end discrimination on the basis of sex
in its military draft registration program and to treat
all sexes equally within the Selective Service System.”
(Id. at 2, Prayer for Relief.)
B. Previous Related Litigation
Plaintiffs’ legal theory that the Act’s requirement
that only males must register with the Selective Service violates the Fifth Amendment’s Equal Protection
Clause has been raised multiple times in federal court.
(See Id. ¶¶ 10, 37–39, 47, 51.) In 1981, the Supreme
Court held in Rostker v. Goldberg, 453 U.S. 57 (1981)
that the male-only registration requirement did not
violate the Fifth Amendment’s Due Process Clause,
reasoning that because women were (at that time) excluded from combat, men and women were not similarly situated. Id. at 78–79.
In 2013, the NCFM and its individual members
brought in the Central District of California an action
similar to the one presently before this Court. In that
case, the Court held that NCFM and its members had
standing to sue but transferred the case to the Southern District of Texas where venue was proper. See
Nat’l Coal. for Men v. Selective Serv. Sys., 2016 WL
11605246, at *2–3 (C.D. Cal. Nov. 9, 2016). The case
was transferred to the Southern District of Texas,
which subsequently confirmed that NCFM and its
members had standing to sue, Nat’l Coal. for Men v.
Selective Serv. Sys., 2018 WL 1694906, at *3 (S.D. Tex.
App-18
Apr. 6, 2018), and granted NCFM’s motion for summary judgment on the basis that because women were
permitted to serve in combat roles, Rostker no longer
controlled. Nat’l Coal. for Men v. Selective Serv. Sys.,
355 F. Supp. 3d 568, 582 (S.D. Tex. 2019). On appeal,
the Fifth Circuit reversed and dismissed NCFM’s
claim, finding Rostker still controlled despite changes
to the opinion’s factual underpinnings because it is
the “[Supreme] Court’s prerogative alone to overrule
one of its precedents.” Nat’l Coal. for Men v. Selective
Serv. Sys., 969 F.3d 546, 549 (5th Cir. 2020) (internal
quotation marks omitted). Plaintiffs subsequently
filed a petition for certiorari to the U.S. Supreme
Court, which the Supreme Court denied. Nat’l Coal.
for Men v. Selective Serv. Sys., 141 S. Ct. 1815 (2021)
(mem.). Justice Sotomayor issued a statement with
the Supreme Court’s denial, saying that it should not
“overrule Rostker” while Congress, the primary governing body for deciding on matters of national defense and military affairs, was concurrently considering whether to end gender-based registration. Id. at
1816.
C. Procedural History
On May 14, 2024, Plaintiffs filed the Complaint.
(Compl.) On August 2, 2024, Defendants moved to dismiss Plaintiffs’ action under Rule 12(b)(1) for lack of
subject matter jurisdiction and under Rule 12(b)(6) for
failure to state a claim on which relief can be granted.
(See generally Mot.) On August 23, 2024, Plaintiffs
App-19
opposed. (Opp’n, Dkt 18.) On September 13, 2024, Defendants replied. (Reply, Dkt 19.)
II. LEGAL STANDARDS
A. Rule 12(b)(1) Challenge to Subject Matter
Jurisdiction
Under Federal Rule of Civil Procedure (“Rule”)
12(b)(1), a party may move to dismiss a complaint for
lack of subject matter jurisdiction. “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air
for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004). “In a facial attack, the challenger asserts that
the allegations contained in the complaint are insufficient on their face to invoke federal jurisdiction.” Id.
In a facial attack, the court “assume[s] [plaintiff’s factual] allegations to be true and draw[s] all reasonable
inferences in his favor.” Wolfe v. Strankman, 392 F.3d
358, 362 (9th Cir. 2004). But, as with a Rule 12(b)(6)
motion, courts do not accept the truth of any legal conclusions contained in the complaint. Warren v. Fox
Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.
2003).
B. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
Federal Rule of Civil Procedure (“Rule”) 8 requires
a plaintiff to present a “short and plain statement of
the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). Under Rule 12(b)(6), a defendant may move to dismiss a pleading for “failure to
App-20
state a claim upon which relief can be granted.” Fed.
R. Civ. P. 12(b)(6).
To defeat a Rule 12(b)(6) motion to dismiss, the complaint must provide enough detail to “give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). The complaint must also be
“plausible on its face,” allowing the court to “draw the
reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. Labels, conclusions, and “a formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555.
A complaint may be dismissed under Rule 12(b)(6)
for the lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,
699 (9th Cir. 1988). When ruling on a Rule 12(b)(6)
motion, “a judge must accept as true all of the factual
allegations contained in the complaint.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007). But a court is “not
bound to accept as true a legal conclusion couched as
a factual allegation.” Iqbal, 556 U.S. at 678 (2009) (internal quotation marks omitted).
App-21
III. DISCUSSION
Defendants move to dismiss Plaintiffs’ Complaint
pursuant to Rule 12(b)(1) on the grounds that Plaintiffs lack Article III standing and pursuant to Rule
12(b)(6) for failure to state a claim upon which relief
can be granted in light of the Supreme Court’s decision in Rostker, 453 U.S. 57 (1981). (Mot. at 1.)
The Court will first address Defendants’ Rule
12(b)(1) subject matter jurisdiction challenge before it
considers Defendants’ motion under Rule 12(b)(6) for
dismissal on the merits. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94–95 (1998) (“The requirement that jurisdiction be established as a threshold
matter springs from the nature and limits of the judicial power of the United States and is inflexible and
without exception.”) (cleaned up); Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001) (“When a
Rule 12(b)(1) motion is filed in conjunction with other
Rule 12 motions, the court should consider the Rule
12(b)(1) jurisdictional attack before addressing any
attack on the merits.”).
A. Plaintiffs Have Standing to Pursue Their
Claims.
Defendants move to dismiss Plaintiffs’ Complaint
pursuant to Rule 12(b)(1) for lack of subject matter
jurisdiction on the grounds that Plaintiffs fail to establish they have Article III standing. (Mot. at 7.) Defendants contend that Plaintiffs fail to allege that the
Individual Plaintiffs suffered a “concrete” injury, one
App-22
of the required elements for showing Article III standing. (Id. at 8.) Defendants further argue that because
the Individual Plaintiffs lack standing, the NCFM
lacks associational standing. (Id. at 12.)
1. Legal Standard For Standing
Under Article III, § 2, of the Constitution, federal
courts only have jurisdiction over a dispute if it is a
“case” or “controversy.” Murthy v. Missouri, 144 S. Ct.
1972, 1985 (2024). An element of the “case-or-controversy requirement is that [Plaintiffs], based on their
complaint, must establish that they have standing to
sue.” Raines v. Byrd, 521 U.S. 811, 818 (1997). “[T]o
satisfy Article III’s standing requirements, a plaintiff
must show (1) it has suffered an ‘injury in fact’ that is
(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury
is fairly traceable to the challenged action of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw
Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000).
“An association has standing to bring suit on behalf of
its members when its members would otherwise have
standing to sue in their own right, the interests at
stake are germane to the organization’s purpose, and
neither the claim asserted nor the relief requested requires the participation of individual members in the
lawsuit.” Id. at 181.
App-23
2. The Individual Plaintiffs Have Standing.
Defendants only dispute Individual Plaintiffs’ ability to allege the first element of Article III standing,
that they have suffered an injury in fact. (Mot. at 7–
12.) The Court interprets this as a facial challenge to
Plaintiffs’ standing because Defendants appear to accept the Plaintiffs’ factual allegations as true but contend that as a matter of law, Plaintiffs fail to allege
that they have or will suffer an injury.
When a challenged government action imposes an
affirmative obligation on the plaintiff, that obligation
may constitute a sufficient injury for Article III standing. See Nat. Res. Def. Council, Inc. v. United States
Env’t Prot. Agency, 383 F. Supp. 3d 1, 10 (D.D.C. 2019)
(finding EPA’s ten-day deadline for responding to its
requests for clarification placed a burden on NRDC
that constituted an injury in fact); Doe v. Cnty. of
Montgomery, Ill., 41 F.3d 1156, 1159 (7th Cir. 1994)
(holding plaintiffs had suffered an “injury in fact” because the County required them to “come into direct
and unwelcome contact with [a religious sign at a
courthouse] in order to fully participate as citizens of
the County and to fulfill certain legal obligations”);
United States v. Students Challenging Regul. Agency
Procs. (SCRAP), 412 U.S. 669, 690 n. 14 (1973) (“An
identifiable trifle is enough for standing.”)
Plaintiffs allege the Individual Plaintiffs were injured because the Act required them to register with
the Selective Service and they are under a continuing
App-24
obligation to promptly notify the Selective Service of
any changes to their registration information. (Compl.
¶ 62; Opp’n at 10.) These obligations on Individual
Plaintiffs are sufficient to establish an injury in fact
sufficient for Article III standing. See E. Texas Baptist
Univ. v. Sebelius, 988 F. Supp. 2d 743, 758–59 (S.D.
Tex. 2013) (finding plaintiff alleged an injury where it
was required to submit a self-certification form to
claim a religious exemption from providing contraceptive coverage to its employees), rev’d on other grounds
sub nom. E. Tex. Baptist Univ. v. Burwell, 793 F.3d
449 (5th Cir. 2015), vacated on other grounds sub nom.
Zubik v. Burwell, 136 S. Ct. 1557 (2016). The Court
therefore disagrees with Defendants that Plaintiffs
“fail to identify any specific, concrete harm that Plaintiffs have suffered or are suffering as a result of having registered.” (Mot. at 10.)
The Court’s affirmation of Plaintiffs’ standing
aligns with the holdings of other federal courts that
have also found young men who are required by the
Act to register with the Selective Service for the military draft and give notice of changes to their information have standing to challenge the constitutionality of the gender-based registration requirement. See
Nat’l Coal. for Men v. Selective Serv. Sys., 2018 WL
1694906, at *3 (S.D. Tex. Apr. 6, 2018); Nat’l Coal. for
Men v. Selective Serv. Sys., 2016 WL 11605246, at *2
(C.D. Cal. Nov. 9, 2016); Goldberg v. Rostker, 509 F.
Supp. 586, 590 (E.D. Pa. 1980) (finding plaintiffs had
standing because they “[were] under compulsion of
App-25
law to present themselves for registration with the Selective Service System”) rev’d on other grounds, 453
U.S. 57 (1981).
Defendants present two other arguments for why
Plaintiffs do not establish a sufficient injury for Article III standing: (1) Plaintiffs’ allegations that the prospect of being drafted constitutes an injury is too speculative to support standing (Mot. at 8); and (2) Plaintiffs’ allegations that the individuals are harmed because sex-based discrimination is unconstitutional
does not support standing (Id. at 8–9.) Because the
Court finds that the Individual Plaintiffs have otherwise alleged a sufficient injury for standing purposes
in the Complaint, it need not consider whether these
additional allegations from Plaintiff are also sufficient
to demonstrate injury.
For the foregoing reasons, the Court finds the Individual Plaintiffs have Article III standing.
3. The NCFM Has Associational Standing.
Defendants’ argument that NCFM lacks standing
as an association relies on their argument that the individual NCFM members lack standing. (Id. at 12.)
Because the Court has found that the Individual
Plaintiffs do have standing to sue as individuals, the
Court rejects Defendant’s argument.
Because the Court finds NCFM and the Individual
Plaintiffs have Article III standing, Defendants’ Motion pursuant to Rule 12(b)(1) is DENIED.
B. Plaintiffs’ Fifth Amendment Claim is
App-26
Precluded by Rostker.
The Court next addresses Defendants’ argument
that Plaintiffs fail to state a claim because the U.S.
Supreme Court’s holding in Rostker binds this court
and requires dismissal. (Id. at 12–14.) Defendants further contend that the Supreme Court’s recent denial
of NCFM’s petition for writ of certiorari to review a
substantially similar claim reinforces Defendants’ position. (Id.)
In Rostker, the U.S. Supreme Court found that the
Act’s male-only registration requirement did not violate the Fifth Amendment’s Equal Protection Clause,
citing the fact that women were “excluded from combat” roles and therefore “would not be needed in the
event of a draft.” Rostker, 453 U.S. at 77. Plaintiffs allege that Rostker no longer controls because the rationale for the Supreme Court’s holding in that case—
that women were excluded from combat positions and
thus were not similarly situated to men—no longer
exists. (Compl. ¶ 15.) In 2013, under the Obama administration, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff issued a memorandum
overturning a 1994 ban on women in combat and directing the military to integrate women into combat
positions “as expeditiously as possible” and no later
than January 1, 2016. (Id. ¶¶ 11–12.) As Defendants
point out, however, the Supreme Court has not overturned its Rostker holding and thus that opinion is
still binding law. (Mot. at 13–14.) This Court agrees.
Though “the factual underpinning of the controlling
App-27
Supreme Court decision has changed,” that does not
grant this Court “license to disregard or overrule that
precedent.” Nat’l Coal. for Men v. Selective Serv. Sys.,
969 F.3d 546, 549 (5th Cir. 2020); see also Agostini v.
Felton, 521 U.S. 203, 237 (1997) (“We reaffirm that if
a precedent of this Court has direct application in a
case, yet appears to rest on reasons rejected in some
other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to this
Court the prerogative of overruling its own decisions.”)
(cleaned up).
More recently, the Supreme Court declined to review NCFM’s petition for writ of certiorari after the
Fifth Circuit dismissed a similar challenge to the
male-only registration requirement’s constitutionality. Nat’l Coal. for Men v. Selective Serv. Sys., 141 S.
Ct. 1815 (2021) (mem.). Justice Sotomayor issued a
statement with the denial explaining that though all
military positions were now open to women, the Court
should not “overrule Rostker” because Congress was,
at that time, considering whether to incorporate “a
gender neutral registration requirement” into the
subsequent national defense bill following the issuance of a National Commission on Military, National,
and Public Service report recommending the elimination of male-only registration. Id. at 1816. Justice Sotomayor’s characterization of NCFM’s petition for
writ of certiorari as a request for the Supreme Court
to “overrule Rostker” indicates that Rostker directly
applies to and controls in the present case.
App-28
Defendants argue—and the Court agrees—that
Rostker remains binding precedent. For this reason,
the Court GRANTS Defendants’ Motion pursuant to
Rule 12(b)(6). Because no amendment can overcome
this bar, the Motion is granted and the case is DISMISSED with prejudice.
IV. CONCLUSION
Defendants’ Motion to Dismiss pursuant to Rule
12(b)(1) is DENIED and Defendants’ Motion to Dismiss pursuant to Rule 12(b)(6) is GRANTED without
leave to amend. This action is DISMISSED with prejudice.
Defendants are ORDERED to file a Proposed Judgment within 5 days of this Order. Plaintiffs will have
5 days thereafter to object as to form.
IT IS SO ORDERED.
Dated: November 20, 2024
/s/ André Birotte Jr.
HONORABLE ANDRÉ BIROTTE JR.
UNITED STATES
DISTRICT COURT JUDGE
App-29
Appendix D
[C.D. Cali. ECF No. 1]
[Filed: May 14, 2024]
Nadine Lewis, Esq., SBN 179979
NADINE LEWIS, ATTORNEY AT LAW
1305 Pico Boulevard
Santa Monica, California 90405
Email: nadine@nadine.esq
Office Telephone: 424.228.5109
Attorney for Plaintiffs, NATIONAL COALITION
FOR MEN,
TYLER MCNAMARA, CONOR MCKIERNAN,
NICHOLAS MILILLO, NICOLAS MENDIOLA, and
JORDAN FALCON
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
NATIONAL COALITION
FOR MEN, a 501(c)(3)
non-profit organization,
TYLER MCNAMARA, an
individual, CONOR
MCKIERNAN, an
individual, NICHOLAS
MILILLO, an individual,
NICOLAS MENDIOLA,
an individual, and
JORDAN FALCON, an
individual,
Plaintiffs,
)
)
)
)
)
)
)
)
)
)
)
Case No. 2:24-cv04016
COMPLAINT FOR
INJUNCTIVE AND
DECLARATORY
RELIEF
VIOLATION OF
EQUAL
PROTECTION
App-30
vs.
SELECTIVE SERVICE
SYSTEM; JOEL C.
SPANGENBERG, as
acting Director of
SELECTIVE SERVICE
SYSTEM; and DOES
1-50, inclusive,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
UNDER THE FIFTH
AMENDMENT TO
THE U.S.
CONSTITUTION
DEMAND FOR
JURY TRIAL
Plaintiffs NATIONAL COALITION FOR MEN
(hereinafter referred to as “NCFM”), TYLER
MCNAMARA,
(hereinafter
referred
to
as
MCNAMARA), CONOR MCKIERNAN, (hereinafter
referred to as MCKIERNAN), NICHOLAS MILILLO,
(hereinafter referred to as MILILLO), NICOLAS
MENDIOLA, (hereinafter referred to as “MENDIOLA”), and JORDAN FALCON (hereinafter referred
to as “FALCON”), (collectively referred to as “Plaintiffs”), bring this action against Defendants SELECTIVE SERVICE SYSTEM (hereinafter referred to as
“SELECTIVE SERVICE”) and its acting Director
JOEL C. SPANGENBERG (hereinafter referred to as
“SPANGENBERG”) (collectively referred to as “Defendants”). Plaintiffs respectfully request injunctive
and declaratory relief from Defendants to end sexbased discrimination in its military draft registration
program and to treat all sexes equally.
App-31
INTRODUCTION
1.
May 18, 2024, marks the 107th anniversary of
the Selective Service System. The Military Selective
Service Act (“Act”) requires male citizens and immigrants between the ages of 18 and 26 to register with
the Selective Service System to facilitate their conscription if the President initiates the military draft.
By registering, a young man remains eligible for federal jobs, state-based student aid in thirty-one states,
federally funded job training, and U.S. citizenship for
males who are immigrants.
2.
The Act does not require women to register.
3.
If a young man fails to register, he will face
harsh penalties, some of which may last a lifetime.
Failure to register is a felony punishable by a fine of
up to $250,000 and/or five (5) years imprisonment.
These penalties are not limited to the individual who
fails to register and may extend to a person who
knowingly counsels, aids, or abets another to fail to
comply with the registration requirement. Young men
must register with the Selective Service System to be
eligible for most federal employment, some state employment, security clearance for contractors, and job
training under the Workforce Innovation and Opportunity Act. A majority of states link receiving a
driver’s license to registration so young men must be
registered to receive a license, permit, or identification card.
4.
Currently, in the state of California the Senate Transportation Committee is considering SB 1081,
App-32
a bill that would tie applying for or renewing a California drivers’ license or California identification card
to registering with the Selective Service System for
those young men of draft age. Under this proposed
legislation, young men, 16 years old, up to age 26, will
be deemed to have agreed to automatic registration
for the draft by placing their signature on a driver’s
license application.
5.
SELECTIVE SERVICE statistics suggest that
more than one million men have been denied some
government benefit because they failed to register. If
the denial of the benefit occurs after the man turns
twenty-six, there is no possibility to cure his non-compliance and he will be denied significant government
benefits for life.
6.
The U.S. Citizenship and Immigration Services makes registration with the Selective Service
System a condition for U.S. citizenship if the man first
arrived in the United States before his 26th birthday.
Failure to register may cause up to a 5-year delay of
U.S. citizenship proceedings for immigrants.
7.
Registration under the Act for the Selective
Service System is discrimination on the basis of sex
and is forbidden by the Equal Protection Clause of the
United States Constitution. This discriminatory law
burdens an entire class of citizens, draft-age men, to
inferior legal status without regard to the fact that
they may potentially lose liberty, life, or limb if called
to war; all the while diminishing the capabilities of an
entire class of citizens, draft-age women, who
App-33
currently serve in all military positions, including
combat roles.
8.
Forty-four years ago, President Carter recommended to Congress that the Act be extended to cover
women. Forty-three years ago, Justice Thurgood Marshall, called male-only registration “one of the most
potent remaining expressions of ancient canards about
the proper role of women.” Women currently serve in
every capacity in the U.S. military from the fields of
combat to four-star general.
9.
The exclusion of women from registration under the Act and the requirement that only men register violates the Due Process Clause of the Fifth
Amendment of the United States Constitution. This
case seeks to end Defendants from discriminating on
the basis of sex.
BACKGROUND
10. In Rostker v. Goldberg, 453 U.S. 57 (1981),
male plaintiffs asserted that sex discrimination in the
Selective Service System violated their rights, along
with other draft-age men, to Equal Protection under
the Fifth Amendment to the United States Constitution. In a sharply divided decision, with a vigorous
dissent written by Justice Thurgood Marshall, the
majority of the Justices ruled against the male plaintiffs on the basis that women were excluded from combat, and therefore, men and women were not similarly
situated.
App-34
11. In 2013, under the Obama administration,
Secretary of Defense Leon E. Panetta and Chairman
of the Joint Chiefs of Staff, Martin E. Dempsey, issued
a Memorandum that officially rescinded the 1994 ban
on women in combat. Secretary Panetta firmly stated,
“Success in our military base solely on ability, qualifications, and performance, is consistent with our values and enhances military readiness.” (Gen. Michael
Hayden et al. Amicus Curiae, p. 7, NCFM, et al. v Selective Service System, et al. (2021)) (Leon E. Panetta,
Sec’y of Def., and Martin E. Dempsey, Chairman of
the Joint Chiefs of Staff, Memorandum for Secretaries
of the Military departments Acting Under Secretary
of Defends for Personnel and Readiness 1 (Jan. 24,
2018),
https://dod.defense.gov/Portals/1/Documents/WISRJointMemo.pdf).
12. The 2013 Memorandum gave the military until May 15, 2013, to submit “detailed plans for the implementation of this directive” and directed that integration of women into combat positions be completed
“as expeditiously as possible” and no later than January 1, 2016.
13. As the 2013 Memorandum notes, many
changes occurred between the 1981 Rostker decision
and 2013. In 2012, the military opened over 14,000
positions previously closed to women; by 2013, women
served alongside men in Iraq and Afghanistan and
were exposed to hostile enemy action.
14. In 2016, Congress authorized the National
Commission on Military, National, and Public Service
App-35
(“NCMNPS”) to study whether registration should be
conducted “regardless of sex.” National Defense Authorization Act (“NDAA”) for Fiscal Year 2017,
§§551(a), 555(c)(2)(A), 130 Stat. 2130, 2135. In 2020,
NCMNPS published a report in which it recommended “eliminat[ing] male-only registration.”
(NCMNPS Report, 2020, P. 111)
15. Accordingly, the rationale in Rostker no
longer exists; as women serve alongside men in every
capacity, in the air, at sea, and in the fields of combat.
Therefore, male, and female servicemembers are similarly situated. With the legal basis requiring only
males to register with the Selective Service System
inapplicable, Defendants must treat all sexes equally
and draw to a close discrimination on the basis
of sex.
JURISDICTION AND VENUE
16. This Court has jurisdiction over this action
under 28 U.S.C. § 1331 which states “The district
courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties
of the United States.” Plaintiffs bring this action under the Fifth Amendment of the United States Constitution to challenge the Selective Service System
which is sex-based discrimination against male citizens and immigrants by requiring them to register for
the draft for possible induction into the U.S. military.
Plaintiffs file this action against Defendants and all of
them, in their official capacity as federal officials
App-36
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for violation of their Constitutional rights.
17. Under 28 U.S.C. § 1343(3) & (4), this Court
has jurisdiction when the federal government deprives equal rights of citizens within the jurisdiction
of the United States; and to secure equitable relief
under any act of Congress providing for the protection
of civil rights. Defendants and each of them in their
official capacity in the federal government continue to
violate the civil rights of male citizens and immigrants by requiring them to register with Selective
Service System; imposing grave penalties upon them
for failure to do so.
18. The Court may grant declaratory relief and
other necessary or proper relief pursuant to the declaratory Judgment Act, Title 28 U.S.C. § 2201, which
allows the issuance of declaratory judgments in cases
with the courts’ jurisdiction, restricted to cases and
controversies in the constitutional sense and 28 U.S.C.
§ 1343(3) & (4).
19. Venue is proper in this district pursuant to 28
U.S.C § 1391(e)(1)(B)(C) because of the events giving
rise to this Complaint occurred in this District, or a
substantial part of property that is the subject of the
action is situated in this District and more than 50%
of the Plaintiffs reside in Los Angeles County with
Plaintiffs MCNAMARA, MCKIERNAN, and MILILLO living in Los Angeles County.
PARTIES
App-37
20. Plaintiff NCFM is a not-for-profit, 501(c)(3)
education and civil rights corporation organized under
the laws of the State of California and of the United
States.
21. NCFM is registered with the Combined Federal Campaign for non-profit organizations.
22. NCFM is committed to ending harmful discrimination and stereotypes against boys, men, and
their families. NCFM is a gender inclusive, nonpartisan, ethnically diverse organization that effects civil
rights reform through advocacy, education, outreach
services, and litigation.
23. NCFM philosophically believes that the root
causes of “gendered oppression” are gender roles,
which developed for various reasons but were then enforced by law in an unfair way on both sexes. These
laws discriminate against all genders, in differing
ways.
24. NCFM assisted the California legislature in
enacting legislation to protect men from paternity
fraud and helped overturn unconstitutional laws that
discriminated against male victims of domestic violence in Woods v Horton (2008) 167 Cal.App.4th 685.
NCFM members were the prevailing appellants in the
landmark California Supreme Court case Angelucci v
Century Supper Club (2007) 41 Cal.4th 160, which
held that women, people of color, gays and lesbians,
and other groups that California businesses discriminated against based on protected personal characteristics did not have to first assert their right to equal
App-38
treatment to an offending business in order to have
standing to sue for unlawful discrimination under
California’s Unruh Civil Rights Act.
25. NCFM has associational standing because
some NCFM members, including MCNAMARA,
MCKIERNAN, MILILLO, MENDIOLA, and FALCON, would otherwise have standing to sue in their
own right, the interests NCFM seeks to protect are
germane to NCFM’s purpose and neither the claim asserted, nor the relief requested, requires the participation of individual NCFM members in this lawsuit.
26. Some of NCFM’s members are males ages 1826 or who will be age 18-26 at some time relative to
this lawsuit. The relief this action seeks is germane to
the age-appropriate members of NCFM who are
harmed by or subject to discrimination on the basis of
sex from the male-only registration requirements.
They are United States citizens, who are not members
of the military, students at military academies, or otherwise exempt from the draft. Most importantly,
these members of NCFM support equal treatment of
all sexes. Finally, some NCFM’s members have or are
likely to have male children or other loved ones who
presently meet or will meet the criteria for registration upon reaching their 18th birthday.
27. Plaintiff TYLER MCNAMARA is a male age
18-26, and a U.S. citizen residing in Los Angeles
County. He is in the age group required by Defendants to register for the military draft and has recently
registered for the military draft as is required of him
App-39
as a male. He is harmed by or subject to discrimination on the basis of sex by the registration requirements. He is not a member of the military, a student
at military academies, or otherwise exempt from the
draft. Most importantly, he supports the equal treatment of all sexes.
28. Plaintiff CONOR MCKIERNAN is a male age
18-26, and a U.S. citizen residing in Los Angeles
County. He is in the age group required by Defendants to register for the military draft and has recently
registered for the military draft as is required of him
as a male. He is harmed by or subject to discrimination on the basis of sex by the registration requirements. He is not a member of the military, a student
at military academies, or otherwise exempt from the
draft. Most importantly, he supports the equal treatment of all sexes.
29. Plaintiff NICHOLAS MILILLO is a male age
18-26, and a U.S. citizen residing in Los Angeles
County. He is in the age group required by Defendants to register for the military draft and has recently
registered for the military draft as is required of him
as a male. He is harmed by or subject to discrimination on the basis of sex by the registration requirements. He is not a member of the military, a student
at military academies, or otherwise exempt from the
draft. Most importantly, he supports the equal treatment of all sexes.
30. Plaintiff NICOLAS MENDIOLA is a male age
18-26, and a U.S. citizen residing in Riverside County.
App-40
He is in the age group required by Defendants to register for the military draft and has recently registered
for the military draft as is required of him as a male.
He is harmed by or subject to discrimination on the
basis of sex by the registration requirements. He is
not a member of the military, a student at military
academies, or otherwise exempt from the draft. Most
importantly, he supports the equal treatment of all
sexes.
31. Plaintiff JORDAN FALCON is a male age 1826, and a U.S. citizen residing in San Bernadino
County. He is in the age group required by Defendants
to register for the military draft and has recently registered for the military draft as is required of him as
a male. He is harmed by or subject to discrimination
on the basis of sex by the registration requirements.
He is not a member of the military, a student at military academies, or otherwise exempt from the draft.
Most importantly, he supports the equal treatment of
all sexes.
32. Defendant SELECTIVE SERVICE is an independent agency within the Executive Branch of the
Federal Government of United States of America. The
SELECTIVE SERVICE collects and maintains information on young males potentially subject to military
conscription. Male U.S. citizens and male immigrants
between the ages of 18 and 26 are all required by law
to register with the Selective Service System within
thirty days of their 18th birthdays and must notify the
SELECTIVE SERVICE within ten days of any
App-41
changes to any of the information they provided on
their registration cards, such as a change of address.
A 2010 report by the General Accounting Office estimated the Selective Service System’s registration rate
at 92%, with the names and addresses of over 16.2
million people on file. The SELECTIVE SERVICE
provides the names of all registrants to the Joint Advertising Marketing Research & Studies (“JAMRS”)
program for inclusion in the JAMRS Consolidation
Recruitment Database. The names are distributed to
various government agencies for recruiting purposes
on a quarterly basis.
33. Defendant SPANGENBERG is the acting Director of the Selective Service System. The Director of
the SELECTIVE SERVICE is appointed by the President of the United States of America and confirmed by
the Senate.
34. Defendants DOES 1 through 50 are sued as
fictious entities at this time and will be added to this
Complaint by amendment when their true names are
ascertained.
35. Plaintiffs are informed and believe and
thereon allege that each of the Defendants is responsible and liable for the unlawful and unconstitutional
acts alleged herein.
STATEMENT OF FACTS
36. Plaintiffs restate and incorporate by reference,
as though fully set forth herein, the allegations and
App-42
statements contained in each of the above-referenced
paragraphs.
37. NCFM previously filed a similar action in the
Central District Court of California. On August 18,
2017, NCFM filed a First Amended Complaint. The
Central District Court of California dismissed NCFM
without prejudice on a Motion to Dismiss and transferred the case to the Southern District Court of Texas,
Houston Division, where one of the prior plaintiffs,
whom the Court found had standing, resided.
38. Plaintiffs filed a Motion for Summary Judgment which was granted by the Southern District of
Texas on February 22, 2019. On August 13, 2020, the
United States Court of Appeals for the Fifth Circuit
reversed the Southern District and dismissed the case.
39. On January 8, 2021, NCFM filed a Petition for
a Writ of Certiorari with the United States Supreme
Court.
40. The National Organization for Women, and
the Modern Military Association of America filed Amicus Briefs in support of NCFM’s Petition. General Michael Hayden along with nine other military officers
also filed an Amicus Briefs in support of NCFM’s Petition. General Hayden’s brief stated:
“According to the logic underlying the current draft regime, men are more capable of
serving in combat than women. Yet the vast
majority of men in fact are not, and – most
importantly – have no advantage in readiness over women, who the current
App-43
statutory scheme forbids from registering.
Such a regime makes no sense, either as a
matter of Fifth Amendment law or of military planning. Doubling the pool of potential
draftees would do more than give the military an opportunity to draw on a larger pool
of qualified candidates to meet its needs in
the face of a large-scale conflict. It would
also permit the military to select the most
qualified civilian candidates available for
any given role in the military – meaning, a
more qualified women could be chosen in
the place of a less qualified man. Put differently, doubling the pool of potential
draftees would raise the overall quality of
the candidate pool and, in doing so, increase
military readiness and aid the Nation’s security.”
(Gen. Michael Hayden et al. Amicus Curiae, p. 15-16, NCFM, et al. v Selective Service System, et al. (2021))
41. On June 7, 2021, the Supreme Court denied
the Petition. Justice Sotomayor cited the fact that
Congress would be considering the issue in its next
defense bill. Justice Sotomayor stated, “But at least
for now, the Court’s longstanding deference to Congress on matters of national defense and military affairs cautions against granting review while Congress
actively weighs the issue.” (Statement of Justice Sotomayer, Pg. 3, 2021).
App-44
42. Congress did, in fact, weigh in on the matter
when it passed the next defense bill. In July 2021, the
Senate Armed Services Committee voted 21-5 to add
women to the draft registration system. The House
Armed Services Committee approved the change in
September in a 35-24 vote. The committee approval
came after a congressionally mandated commission in
2020 recommended draft registration be expanded to
include women, calling it a “necessary and fair step.”
43. A small group of six Congressmembers were
adamantly opposed to making women register and
threatened to vote against the NDAA as a whole if the
final bill included the provision to, in its words, “draft
our daughters.”
44. In our government composed of a system of
checks and balances, the Supreme Court has historically been a check on arbitrary actions of Congress.
The comment above which references ‘our daughters’
is the quintessential definition of ‘arbitrary’ in that it
appears to be based upon random choice or personal
whim, rather than any rational or measured thought;
nor is the comment based upon the various studies
and memorandum which Congress itself authorized;
all of which concluded that the draft should include
all draft-aged citizens and immigrants without regard
to their sex. Every study and military recommendation has unequivocally concluded that a gender-neutral draft promotes fairness in the military and is in
the best interest of our national security. The ‘daughters’ comment alone makes the case that Congress
App-45
failed to end discrimination arising from the Act on
the basis of sex for arbitrary reasons.
45. One of the six holdouts, Sen. Josh Hawley, RMo., led the charge against the provision in the Senate, he responded to reports that it would be removed
from the NDAA by saying he “certainly hope[s] that is
the case. If it is not, then I will keep fighting for a vote
on the Senate floor to strip this wrong and misguided
provision out of the final bill.” General Hayden and
the other military officers who submitted an Amicus
Brief in support of women being included in the draft
are certainly not misguided and their vast military
experience, along with the study Congress authorized
is not wrong. These six members of Congress dismiss
the fact that registration for the draft does not mandate that all who register are, indeed, drafted; the
process has always been selective. Each registrant
would be drafted based upon their ability to serve, regardless of sex.
46. Those six Congressmembers who opposed including female citizens and immigrants in the Selective Service System went against the Department of
Defense, and their arbitrary views do not reflect the
present roles of enlisted female servicemembers who
serve in all branches of the U.S. military, including in
combat roles. These six members of Congress who
used political influence by threatening to hold up approval of the defense bill dismissed the fact that gender-neutral registration celebrates the achievements
and capabilities of women who currently serve and
App-46
readies our country to launch the best possible national defense by allowing the military access to the
most qualified people to serve, regardless of their sex.
47. On June 7, 2021, the Supreme Court denied
NCFM’s Petition for Writ of Certiorari and Justice
Sotomayor forewarned that the Court would defer to
Congress “at least for now.” Three years and four
months later and Congress has yet to enact genderneutral registration. Every year since 2021 when the
Supreme Court denied NCFM’s Petition for Writ of
Certiorari, Congress had the opportunity to act when
they passed the annual defense bill which authorizes
approximately $900 billion in programs and covers
the entire Department of Defense as well as the nuclear program in the Department of Energy.
48. To prevent tyranny, the U.S. Constitution established three separate but equal branches of government with each branch granted specific powers,
limited only by checks and balances in place to avert
absolutism by any branch. Congress is tasked with
making laws and has been granted great deference by
the judiciary related to military affairs. The Court in
Rostker stated that, “None of this is to say that Congress is free to disregard the Constitution when it acts
in areas of military affairs…Deference does not mean
abdication.” Rostker (1981) 453 U.S. 67, 70.
49. Congress may enact laws, but the judiciary
has the power to declare them unconstitutional. In our
system of checks and balances, courts also guard
against the concept of arbitrary Congressional action.
App-47
With Congressional gridlock at an all time high, the
courts must also guard against arbitrary Congressional inaction. Congress is enacting fewer laws, engaging more gamesmanship which more often serves
their own political interests but not their constituents.
One member may have the political influence to block
votes or through tactical delays keep legislation in
committee to prevent a vote on the floor. As related to
registration for the Selective Service System, this
form of Congressional action or inaction is a threat to
equal protection under the Fifth Amendment.
50. The Framers drafted the Constitution with
separation of powers, in part, to diminish the threat
of arbitrary government action. Justice Stevens
stated, “I see no reason why the character of their procedures may not be considered relevant to the decision whether the legislative product has caused a deprivation of liberty or property without due process of
law.” Fullilove v. Klutznick (1980) 448 U.S. 448, 248.
51. When the Court denied NCFM’s Petition for
Certiorari in 2021, Justice Sotomayor stated that “it
remains to be seen, of course, whether Congress will
end gender-based registration under the Military Selective Service Act. But at least for now, the Court’s
long-standing deference to Congress on matters of national defense and military affairs cautions against
granting review while Congress actively weighs the
issue.” (Statement of Justice Sotomayer, Pg. 3, 2021)
52. General Hayden’s Amicus Brief states that
“[r]equiring women as well as men to register for the
App-48
selective service would send a clear message that the
military values the service of its women equally alongside the service of its men” (Gen. Michael Hayden et al.
Amicus Curiae, p. 21, NCFM, et al. v Selective Service
System, et al. (2021))
53. The rationale behind Rostker is therefore obsolete as women serve in every capacity from the fields
of combat, in aircraft, at sea and four-star generals.
The Act should reflect the present role of women who
proudly serve in our military.
54. At first glance, the prohibition of women from
registering with the Selective Service System seems
to confer a benefit to women. Limiting registration to
men is based upon antiquated stereotypes of the capacity of women to serve and fully participate in military and civic life; and equally archaic and compartmentalized views that men lack the ability to remain
at home as caretakers. The ban assumes women are
unsuitable for military service notwithstanding their
own individual abilities and predispositions. The limitation on registration to male citizens sanctifies
these biases and encapsulates them in federal law.
55. The Department of Defense advised Congress
that allowing women to register would promote military preparedness and fairness. There is simply no
justification for the inaction of Congress to prevent
and combat discrimination on the basis of sex when
they are tasked with passing laws to protect equal
rights and uphold the Constitution.
App-49
56. It has been 44 years since President Carter
suggested Congress enact legislation to include
women in the registration.
57. It has been eight years since Congress authorized the NCMNPS to study women in the draft and
their final report was published 2020 where they recommended “eliminat[ing] male-only registration.”
(NCMNPS Report, Pg. 111), and it has been three
years and four months since the Court denied
NCFM’s Petition for Writ of Certiorari, deferring matters of the military to Congress.
58. Congress failed to enact legislation in line
with military studies and recommendations of the
highest-ranking military officers. “The United States
military of the twenty-first century values equal opportunity for all qualified individuals to serve – regardless of race, sex, gender identity, or sexual orientation.
The modern history of the military bears this out.”
(Gen. Michael Hayden et al. Amicus Curiae, p. 4,
NCFM, et al. v Selective Service System, et al. (2021))
59. Plaintiffs seek to end discrimination on the
basis of sex as related to registration with the Selective Service System, an action that is long overdue.
While there has not been a conscription in almost 50
years, in light of the current state of world affairs, the
possibility looms closer than ever before. Equalizing
registration with the Selective Service System would
ensure that all sexes have the same rights and responsibilities to serve their country if called upon to do so.
Eliminating registration on the basis of sex simply
App-50
acknowledges the reality that currently exists in our
military. A pool of draft-age people, regardless of their
sex, will enhance military readiness, and contribute to
our national security.
FIRST CAUSE OF ACTION
(Fifth Amendment – Violation of the Equal Protection Clause)
60. Plaintiffs restate and incorporate by reference,
as though fully set forth herein, the allegations and
statements contained in each of the above-referenced
paragraphs.
61. The Equal Protection Clause of the Fifth
Amendment guarantees that no person or group will
be denied the protection under the law that is enjoyed
by similar persons or groups. Under the Fifth Amendment, no person shall be denied the equal protection
of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil
or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.
62. The Military Selective Service Act denies
male citizens and immigrants equal protection; the
Act treats males and females of draft-age differently.
Plaintiffs MCNAMARA, MCKIERNAN, MILILLO,
MENDIOLA, and FALCON are between the ages of
18 and 26 and were required to register with the Selective Service System; no female citizens or female
App-51
immigrants of draft-age were required to register under the Act.
63. Presently, women to serve in every capacity in
all the armed forces; including combat roles. Since
2013, there have been a slew of historic firsts, from
the first female graduates of the Army Ranger School
in 2015, to the first female Marine to lead an infantry
platoon in 2018. By 2019, more than 600 female Sailors and Marines were serving in combat arms units
previously restricted to men; while more than 650
women held Army combat roles and over 1,000 had
accessed Army combat specialties. Therefore, male,
and female citizens and immigrants are similarly situated in their roles in all branches of the U.S. Military;
and discrimination against Plaintiffs by the Defendants on the basis of sex violates equal protection under the Fifth Amendment of the U.S. Constitution.
64. The above-referenced conduct by Defendants
violates the rights of Plaintiffs to equal treatment on
the basis of sex under the Fifth Amendment of the
United States Constitution and Plaintiffs have been
harmed as a result of this discriminatory law.
PRAYER FOR RELIEF
Therefore, Plaintiffs pray as follows for:
1. Injunctive relief enjoining Defendants from pursuing its policy to require male citizens and immigrants to register with the Selective Service
System; and to end discrimination on the basis
App-52
of sex in its military draft registration program
and to treat all sexes equally within the Selective
Service System;
2. Declaratory relief regarding the respective
rights of Plaintiffs and all Defendants as set
forth in this Complaint to issue a declaratory
judgment that the practices complained of in this
Complaint are unlawful and violate the Fifth
Amendment to the U.S. Constitution;
3. Reasonable Attorney fees and costs related to
this action pursuant to 42 U.S. Code § 1988 - Proceedings in vindication of civil right and any
other provision of law which may be applicable;
and,
4. Any other relief that the Court deems in the furtherance of justice.
DEMAND FOR JURY TRIAL
Plaintiffs hereby demands a trial by jury of all issues and each and every cause of action so triable pursuant to Rule 38 of the Federal Rules of Civil Procedure and the Civil Rights Act of 1991Plaintiffs demand a trial by jury on all causes of action so triable. 1
Respectfully Submitted.
Dated: May 14, 2024
NADINE LEWIS,
ATTORNEY AT LAW
Ms. Lewis would like to thank her longtime law clerk Spenscer
Greenberg for her thoughtful edits and meticulous research on
this Complaint.
1
App-53
By: Nadine Lewis, Esq.
Nadine Lewis, Esq.,
Attorney for Plaintiffs,
NATIONAL COALITION
FOR MEN, TYLER
MCNAMARA, CONOR
MCKIERNAN, NICHOLAS
MILILLO, NICOLAS
MENDIOLA, and JORDAN
FALCON
App-54
Appendix E
Cite as: 593 U. S.
(2021)
Statement of SOTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
NATIONAL COALITION FOR MEN, ET AL. v.
SELECTIVE SERVICE SYSTEM, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 20–928. Decided June 7, 2021
The petition for a writ of certiorari is denied.
Statement of JUSTICE SOTOMAYOR, with whom
JUSTICE BREYER and JUSTICE KAVANAUGH
join, respecting the de-nial of certiorari.
The Fifth Amendment to the United States Constitution prohibits the Federal Government from discriminating on the basis of sex absent an “ ‘exceedingly persuasive justifi-cation.’” Sessions v. MoralesSantana, 582 U. S.
,
(2017) (slip op., at 9)
(quoting United States v. Virginia, 518 U. S. 515, 531
(1996)); see Califano v. Westcott, 443 U. S. 76 (1979);
Califano v. Goldfarb, 430 U. S. 199 (1977); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Frontiero v.
Rich-ardson, 411 U. S. 677 (1973). Cf. Bolling v.
Sharpe, 347 U. S. 497 (1954).
The Military Selective Service Act re-quires men, and only men, however, to register for the draft upon turning 18. See 85
App-55
Stat. 353, 50 U. S. C. §3802(a). In Rostker v. Goldberg, 453 U. S. 57 (1981), this Court upheld the
Act’s gender-based registration requirement
against an equal protection challenge, citing the
fact that women were “excluded from combat”
roles and hence “would not be needed in the event
of a draft.” Id., at 77.
The role of women in the military has changed
dramati-cally since then. Beginning in 1991, thousands of women have served with distinction in a
wide range of combat roles, from operating military aircraft and naval vessels to participating in
boots-on-the-ground infantry missions. See Brief
for Modern Military Association of America et al.
as Amici Curiae 11–18. Women have passed the
military’s de-manding tests to become U. S. Army
Rangers, Navy SEALs, and Green Berets. See Brief
for General Michael Hayden et al. as Amici Curiae
11–13. As of 2015, there are no longer any positions
in the United States Armed Forces closed to women.
See Memorandum from Secretary of Defense to
Secretaries of the Military Departments et al. Re:
Imple-mentation Guidance for the Full Integration
of Women in the Armed Forces 1 (Dec. 3, 2015).
Petitioners ask the Court to overrule Rostker in
light of these developments.
Petitioners, however, are not the only ones
asking whether a male-only registration requirement can be reconciled with the role women can,
and already do, play in the modern military. In
App-56
2016, Congress created the National Commission
on Military, National, and Public Service
(NCMNPS) and tasked it with studying whether
Selective Service registration should be conducted
“regardless of sex.” National Defense Authorization Act for Fiscal Year 2017, §§551(a), 555(c)(2)(A),
130 Stat. 2130, 2135.
On March 25, 2020, the Commission released its
final re-port, in which it recommended “eliminat[ing] male-only registration.” Inspired to Serve:
The Final Report of the [NCMNPS] 111.
Among other things, the Commission found that
“[m]ale-only registration sends a message to
women not only that they are not vital to the defense of the country but also that they are not expected to participate in defending it.” Id., at 118.
Just a few months ago, the Sen-ate Armed Services
Committee held a hearing on the re-port, where
Chairman Jack Reed expressed his “hope” that a
gender-neutral registration requirement will be “incorpo-rated into the next national defense bill.” Tr.
of Hearing on Final Recommendations and Report
of the [NCMNPS] be-fore the Senate Committee on
Armed Services, 117th Cong., 1st Sess., 21 (Mar. 11,
2021).
It remains to be seen, of course, whether Congress will end gender-based registration under the
Military Selective Service Act. But at least for now,
the Court’s longstanding deference to Congress on
matters of national defense and military affairs
App-57
cautions against granting review while Congress actively weighs the issue. I agree with the Court’s decision to deny the petition for a writ of certiorari.
App-58
Appendix F
[Filed: Aug. 13, 2020]
United States Court of Appeals
for the Fifth Circuit
No. 19-20272
NATIONAL COALITION FOR MEN; JAMES LESMEISTER,
individually and on behalf of OTHERS SIMILARLY
SITUATED; ANTHONY DAVIS,
Plaintiffs—Appellees,
versus
SELECTIVE SERVICE SYSTEM; DONALD BENTON, AS
DIRECTOR OF SELECTIVE SERVICE SYSTEM,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-3362
Before WIENER, STEWART, and WILLETT, Circuit
Judges.
Per Curiam:
Plaintiffs-Appellees James Lesmeister, Anthony
Davis, and the National Coalition for Men sued Defendant-Appellants the Selective Service System and
its director (collectively, “the Government”) alleging
that the male-only military draft is unlawful sex
App-59
discrimination. The district court granted PlaintiffsAppellees declaratory judgment, holding that requiring only men to register for the draft violated their
Fifth Amendment rights. Because that judgment directly contradicts the Supreme Court’s holding in Rostker v. Goldberg, 453 U.S. 57, 78–79 (1981), and only
the Supreme Court may revise its precedent, we REVERSE.
I.
Background
The Military Selective Service Act (the “Act”) requires essentially all male citizens and immigrants between the ages of eighteen and twenty-six to register
with the Selective Service System, a federal agency, to
facilitate their conscription in the event of a military
draft. 50 U.S.C. §§ 3802(a), 3809. Men who fail to register or otherwise comply with the Act and its implementing regulations may be fined, imprisoned,
and/or denied federal benefits. Id. §§ 3328, 3811(a),
3811(f). The Act does not require women to register.
See id. § 3802(a).
In 1980, President Carter recommended to Congress
that the Act be extended to cover women. See Rostker,
453 U.S. at 60 (citing House Committee on Armed
Services, Presidential Recommendations for Selective
Service Reform—A Report to Congress Prepared Pursuant to Pub. L. 96–107, 96th Cong., 2d Sess., 20–23
(Comm. Print No. 19, 1980), App. 57–61). Congress declined after “consider[ing] the question at great length”
with “extensive testimony and evidence.” Id. at 61, 72.
App-60
In 1981, the Supreme Court held in Rostker v. Goldberg that male-only registration did not violate the Due
Process Clause of the Fifth Amendment. Id. at 78–79.
The court based its reasoning on the fact that women
were then barred from serving in combat and deferred
to Congress’s considered judgment about how to run
the military. See id. at 76–77.
Since then, the military has gradually integrated
women into combat roles. In the early 1990s, Congress
repealed the statutory bans on women serving on combat aircraft and ships. Pub. L. No. 103-160, § 541, 107
Stat. 1547, 1659 (1993), repealing 10 U.S.C. § 6015
(1988) (ships), Pub. L. No. 102-190, § 531, 105 Stat.
1290, 1365 (1991) (aircraft). In 2013, the Department of
Defense (“DoD”) announced its intention to open all
remaining combat positions to women, the last of which
it opened in 2016.
Congress again considered male-only registration in
the context of the 2017 National Defense Authorization
Act. The Senate version of the bill would have required
women to register, S. 2943, 114th Cong. § 591 (as
passed by Senate, June 21, 2016), but the final law instead created a commission to study the military Selective Service process to determine, among other questions, whether the process was needed at all and, if
so, whether to conduct it “regardless of sex,” National
Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, §§ 551, 555, 130 Stat. 2000, 2130, 2135
(2016). The commission completed its report in March
2020. National Commission on Military, National,
App-61
and Public Service, Inspired to Serve (2020),
https://inspire2serve.gov/sites/default/files/final-report/Final%20Report.pdf. The 2017 National Defense Authorization Act also directed the Secretary of
Defense to issue a report addressing, inter alia, the
benefits of the Selective Service System and the impact on those benefits of requiring women to register,
which the DoD completed in 2017. Id. § 552, 130 Stat.
at 2123.
Plaintiffs-Appellees sued the Government under 42
U.S.C. § 1983 for violations of their Fifth Amendment
rights to be free from sex discrimination. On cross-motions, the district court granted summary judgment
for Plaintiffs-Appellees declaring that male-only registration was unlawful, but it declined to issue an injunction. The court reasoned that Rostker no longer controlled because women may now serve in combat. The
Government appeals, asserting that Rostker does control and that, regardless of Rostker, male-only registration is still constitutional.
II. Standard of Review
The facts are not in dispute, so we review de novo the
district court’s grant of summary judgment “to determine whether it was rendered according to law.”
United States v. Jesco Const. Corp., 528 F.3d 372, 374
(5th Cir. 2008).
App-62
III. Analysis
In Rostker, the Supreme Court held that the maleonly Selective Service registration requirement did
not offend due process. 453 U.S. at 78–79. The Court
relied heavily on legislative history showing that Congress thoroughly considered whether to require women
to register. See id. at 71–72, 74, 76, 81–82. Congress,
and thus the Court, believed the sole purpose of registration to be the draft of combat troops in a national
emergency. Id. at 75–76 (“Congress’ determination that
the need would be for combat troops if a draft took place
was sufficiently supported by testimony adduced at the
hearings so that the courts are not free to make their
own judgment on the question.”). Women were then
barred from combat, so the Court examined the constitutional claim with those “combat restrictions firmly in
mind.” Id. at 77. The Court concluded, “This is not a
case of Congress arbitrarily choosing to burden one of
two similarly situated groups. . . . Men and women, because of the combat restrictions on women, are simply
not similarly situated for purposes of a draft or registration for a draft.” Id. at 78–79. Further, the Court
rejected the district court’s conclusion that women
could be drafted in some number into noncombat positions without degrading the military’s effectiveness, instead deferring to Congress’s determination that the
administrative and operational burdens of such an arrangement exceeded the utility. Id. at 81–82.
That holding is controlling on this court. The Fifth
Circuit is a “strict stare decisis” court and “cannot
App-63
ignore a decision from the Supreme Court unless directed to do so by the Court itself.” Ballew v. Cont’l Airlines, Inc., 668 F.3d 777, 782 (5th Cir. 2012); Hernandez v. United States, 757 F.3d 249, 265 (5th Cir. 2014),
adhered to in part on reh’g en banc, 785 F.3d 117 (5th
Cir. 2015), vacated and remanded sub nom. Hernandez v. Mesa, 137 S. Ct. 2003 (2017). “[F]ollow[ing] the
law as it is . . . respect[s] the Supreme Court’s singular
role in deciding the continuing viability of its own precedents.” Perez v. Stephens, 745 F.3d 174, 180 (5th Cir.
2014).
The Supreme Court is clear on this point as well. In
State Oil Co. v. Khan, 522 U.S. 3, 22 (1997), the Court
held that vertical maximum price fixing was not per
se unlawful, overruling Albrecht v. Herald Co., 390 U.S.
145 (1968). The Court disagreed with some of the
reasoning in Albrecht but, relevant to this case, also
found that the facts on which Albrecht rested had
changed. State Oil Co., 522 U.S. at 14–19. For example,
the procompetitive potential of vertical maximum
price fixing had become more evident since Albrecht
because other business arrangements that combined
with vertical maximum price fixing to help consumers
were per se illegal at Albrecht’s time but had since become more common. Id. at 14–15. Also, “the ban on
maximum resale price limitations declared in Albrecht
in the name of ‘dealer freedom’ ha[d] actually
prompted many suppliers to integrate forward into
distribution, thus eliminating the very independent
trader for whom Albrecht professed solicitude.” Id. at
App-64
16–17 (quoting 8 P. Areeda, Antitrust Law, ¶ 1635, p.
395 (1989)). The Court nevertheless noted that, “[d]espite. . . Albrecht’s ‘infirmities, [and] its increasingly
wobbly, moth-eaten foundations,’ . . . [t]he Court of
Appeals was correct in applying that principle despite disagreement with Albrecht, for it is this Court’s
prerogative alone to overrule one of its precedents.” Id.
at 20 (quoting Khan v. State Oil Co., 93 F.3d 1358, 1363
(7th Cir. 1996)).
Here, as in State Oil Co., the factual underpinning
of the controlling Supreme Court decision has
changed, but that does not grant a court of appeals
license to disregard or overrule that precedent. See
also Roper v. Simmons, 543 U.S. 551, 594 (2005)
(O’Connor, J., dissenting) (pointing out that only the
Supreme Court may overrule its precedents “even
where subsequent decisions or factual developments
may appear to have ‘significantly undermined’ the
rationale for [the] earlier holding” and therefore the
majority should have admonished the circuit court
despite affirming its judgment); Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)
(“If a precedent of this Court has direct application in a
case, yet appears to rest on reasons rejected in some
other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to
this Court the prerogative of overruling its own
decisions.”); Agostini v. Felton, 521 U.S. 203, 237, 239
(1997) (confirming rule from Rodriguez de Quijas that
App-65
lower courts may not “conclude [that] recent cases have,
by implication, overruled an earlier precedent”).
Plaintiffs-Appellees point to no case in which a court
of appeals has done what they ask of us, that is, to disregard a Supreme Court decision as to the constitutionality of the exact statute at issue here because some key
facts implicated in the Supreme Court’s decision have
changed. That we will not do.
Rostker forecloses Plaintiffs-Appellees’ claims, so
the judgment of the district court is REVERSED and
the case DISMISSED.
App-66
Appendix G
[Filed: Apr. 29, 2019]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NATIONAL COALITION FOR
MEN, et al.,
Plaintiffs,
v.
SELECTIVE SERVICE
SYSTEM, et al.,
Defendants.
§
§
§
§ CIVIL ACTION
§ H-16-3362
§
§
§
MEMORANDUM OPINION AND ORDER
Pending before the court is a motion for relief from
judgment filed by plaintiffs National Coalition for
Men, Anthony Davis, and James Lesmeister (collectively, “Plaintiffs”). Dkt. 90. Plaintiffs also filed a
“supplemental motion for summary judgment” containing additional briefing. Dkt. 91. Defendants Lawrence Romo and the Selective Service System (collectively, “Defendants”) responded. Dkt. 92. Having considered the motions, response, and applicable law, the
court is of the opinion that Plaintiffs’ motions (Dkts.
90, 91) should be DENIED.
This court previously granted summary judgment
in Plaintiffs’ favor. Dkt. 87. However, the court denied
App-67
Plaintiffs’ request for injunctive relief because Plaintiffs failed to request an injunction in their motion and
did not brief the issue. Id. at 19. Plaintiffs now ask the
court to reconsider its denial of the injunction request.
Dkts. 90, 91. Defendants oppose injunctive relief and
have appealed the court’s original summary judgment
ruling. Dkts. 92, 93.
As a threshold matter, Federal Rule of Civil Procedure 60(b) governs motions for relief from judgment.
Typically, “[g]ross carelessness, ignorance of the rules,
or ignorance of the law are insufficient bases” for relief
under Rule 60. Edward H. Bohlin Co. v. Banning Co.,
6 F.3d 350, 357 (5th Cir. 1993). However, even if the
court could consider Plaintiffs’ request for an injunction strictly on the merits, Plaintiffs’ arguments still
fail.
First, Plaintiffs fail to demonstrate that they are entitled to relief under a typical injunction analysis. Injunctive relief is an “extraordinary remedy that may
only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat, Res. Def.
Council, Inc., 555 U.S. 7, 22, 129 S. Ct. 365 (2008). A
plaintiff seeking a permanent injunction must demonstrate: “(1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as monetary
damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity
is warranted; and (4) that the public interest would
not be disserved by a permanent injunction.”
App-68
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,
156–57, 130 S. Ct. 2743 (2010) (quoting eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391, 126 S. Ct.
1837 (2006)).
Here, the third and fourth factors of this test weigh
heavily against granting injunctive relief. Plaintiffs
request that the court “either require both men and
women to register, or require neither men nor women
to register, for the [Military Selective Service Act].”
Dkt. 90 at 7. Both of these proposed actions would
place inequitable hardship on Defendants as well as
disserve the public interest. At best, both of these
changes would “lead to serious logistical problems, as
well as millions of dollars in potentially wasted resources.” Dkt. 92 at 10–11. At worst, upheaval of the
draft registration system could “compromis[e] the
country’s readiness to respond to a military crisis.” Id.
at 9. “[A]lthough registration imposes material interim obligations . . . [the court] cannot say that the
inconvenience of those impositions outweighs the
gravity of the harm to the United States” should registration be enjoined. Rostker v. Goldberg (Rostker I),
448 U.S. 1306, 1310, 101 S. Ct. 1 (Brennan, Circuit
Justice 1980). The balance of equities requires—and
the public interest is best served by—preserving the
current registration system pending appellate review.
Second, Rostker v. Goldberg (Rostker II), 453 U.S.
57, 101 S. Ct. 2646 (1981), counsels deference. “The
constitutional power of Congress to raise and support
armies and to make all laws necessary and proper to
App-69
that end is broad and sweeping.” Rostker II, 453 U.S.
at 65 (quoting United States v. O’Brien, 391 U.S. 367,
377, 88 S. Ct. 1673 (1968)). While Congress is not “free
to disregard the Constitution” in exercising its military powers, “the Constitution itself” requires judicial
deference to congressional judgment in this area. Id.
at 67.
In this case, judicial deference requires the court to
deny injunctive relief despite the ongoing constitutional violations. The draft has significant foreign policy, as well as national security, implications. See Rostker I, 448 U.S. at 1310 (“[T]he inauguration of registration by the President and Congress was . . . an act
of independent foreign policy significance—a deliberate response to developments overseas.”). The legislative branch is best equipped—and constitutionally
empowered—to reform the draft registration system
in light of these important policy considerations. See
Rostker II, 453 U.S. at 65 (“Not only is the scope of
Congress’ constitutional power in this area broad, but
the lack of competence on the part of the courts is
marked.”). Moreover, Congress has created a commission that is currently studying draft reform and will
make recommendations in the coming years. Dkt. 92
at 9. While these factors do not preclude judicial review entirely, they do strongly suggest that the court
should defer to Congress by denying injunctive relief
at this time.
App-70
Accordingly, Plaintiffs’ motions for relief from judgment (Dkt. 90) and summary judgment (Dkt. 91) are
DENIED.
Signed at Houston, Texas on April 29, 2019.
/s/ Gray H. Miller
Gray H. Miller
Senior United States District Judge
App-71
Appendix H
[Filed: Feb. 22, 2019]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NATIONAL COALITION FOR
MEN, et al.,
Plaintiffs,
v.
SELECTIVE SERVICE
SYSTEM, et al.,
Defendants.
§
§
§
§ CIVIL ACTION
§ H-16-3362
§
§
§
MEMORANDUM OPINION AND ORDER
Pending before the court is: (1) a motion for summary judgment filed by plaintiffs National Coalition
for Men (“NCFM”), Anthony Davis, and James
Lesmeister (“Plaintiffs”) (Dkt. 73); and (2) a cross-motion for summary judgment and motion to stay filed
by defendants Selective Service System (“SSS”) and
Lawrence Romo (collectively, “Defendants”) (Dkt. 80).
Plaintiffs responded to Defendants’ cross-motion. Dkt.
81. Having considered the motions, response, evidence
in the record, and applicable law, the court is of the
opinion that Plaintiffs’ motion for summary judgment
(Dkt. 73) should be GRANTED and Defendants’
App-72
motion for stay and summary judgment (Dkt. 80)
should be DENIED.
I.
BACKGROUND
This case balances on the tension between the constitutionally enshrined power of Congress to raise armies and the constitutional mandate that no person
be denied the equal protection of the laws. U.S. Const.
art. I, § 8; U.S. Const. amend. V; Bolling v. Sharpe,
347 U.S. 497, 74 S. Ct. 693 (1954).
The Military Selective Service Act (“MSSA”) requires males—but not females—to register for the
draft. The MSSA provides that “every male citizen of
the United States, and every other male person residing in the United States . . . between the ages of eighteen and twenty-six,” must register with SSS. 50 U.S.C.
§ 3802(a). After registering, men have a continuing obligation to update SSS with any changes in their address or status. § 3813. Failure to comply with the
MSSA can result in up to $10,000 in fines and five
years of imprisonment. § 3811(a). Males are also subject to other penalties for failing to register, including
denial of federal student loans. § 3811(f).
Plaintiffs challenge the MSSA on equal protection
grounds, arguing that the MSSA’s maleonly registration requirement violates the Fifth Amendment Due
Process Clause. Dkt. 60 at 12. Plaintiffs Lesmeister
and Davis are males subject to the draft
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requirements. 1 Dkt. 73-2 at 1–2. Both have registered
with the SSS, in compliance with the MSSA. Id.
NCFM is a non-profit, 501(c)(3) educational and civil
rights corporation. Id. at 3. Some of NCFM’s members,
including Davis, are males subject to the draft requirements who have already registered or will have
to register under the MSSA. Id. at 3–4.
In 2013, NCFM and Lesmeister filed suit against
Defendants in the Central District of California. Dkt.
1. Initially, Judge Dale S. Fischer, the Central District
of California judge, dismissed the case as not ripe for
review. Dkt. 20. The Ninth Circuit reversed and remanded, holding that the plaintiffs’ claims were “definite and concrete, not hypothetical or abstract, and so
ripe for adjudication.” Nat’l Coal. for Men v. Selective
Serv. Sys., 640 F. App’x 664, 665 (9th Cir. 2016) (citations and quotations omitted). On remand, Judge
Fischer granted Defendants’ motion to dismiss NCFM
without prejudice because the organization lacked associational standing. Dkt. 44 at 4. Further, the court
determined that venue was not proper in the Central
District of California and transferred the case to the
Southern District of Texas, where Lesmeister resides.
Id. at 5.
Upon transfer, Lesmeister amended his complaint
to name NCFM and Davis as plaintiffs. Dkt. 60. This
court subsequently determined that all three
Plaintiffs request judicial notice of certain facts in this case.
Dkt. 73-2. To the extent Plaintiffs request judicial notice of facts
that are not in dispute, the court grants this request.
1
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plaintiffs have standing. Dkt. 59. Both Plaintiffs and
Defendants now move for summary judgment, arguing that current equal protection jurisprudence entitles them to judgment as a matter of law.2
II. ANALYSIS
A. Motion to Stay
“The proponent of a stay bears the burden of establishing its need.” Clinton v. Jones, 520 U.S. 681, 708,
117 S. Ct. 1636 (1997). In their pending motion, Defendants first contend that the court should stay the
current proceedings. Dkt. 80 at 15–21. Defendants argue that the case is not ripe for review because Congress is currently considering whether to add women
to the draft. Id. Defendants also argue that, under
separation-of-power principles, the court should postpone resolution of the case during congressional debate on the issue. Id. Finally, Defendants urge the
court to stay the case using its inherent case-management power because the balance of hardships weighs
in Defendants’ favor. Id.
1.
Ripeness
The justiciability doctrine of ripeness prevents
courts, “through avoidance of premature adjudication,
2 A court shall grant summary judgment when a “movant shows
that there is no genuinedispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.Civ.
P. 56(a). Here, both sides have moved for summary judgment, so
the parties agree that thereare no material fact issues to resolve.
Dkt. 73; Dkt. 80.
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from entangling themselves in abstract agreements.”
Choice Inc. of Tex. v. Greenstein, 691 F.3d 710, 715
(5th Cir. 2012) (quoting Abbott Labs. v. Gardner, 387
U.S. 136, 149, 87 S. Ct. 1507 (1967), abrogated on
other grounds by Califano v. Sanders, 430 U.S. 99, 105
(1977)). A court must dismiss for lack of ripeness when
the case is “abstract or hypothetical.” Id. (quoting New
Orleans Pub. Serv., Inc. v. Council of New Orleans,
833 F.2d 583, 586 (5th Cir. 1987)). “Ripeness ‘requir[es] us to evaluate both the fitness of the issues
for judicial decision and the hardship to the parties of
withholding court consideration.’” Texas v. United
States, 523 U.S. 296, 300–01, 118 S. Ct. 1257 (1998)
(quoting Abbott Labs., 387 U.S. at 149). “A case is generally ripe if any remaining questions are purely legal
ones; conversely, a case is not ripe if further factual
development is required.” Choice Inc. of Tex., 691 F.3d
at 715 (quoting New Orleans Pub. Serv., Inc., 833 F.2d
at 586).
Defendants argue that the case is not currently fit
for judicial decision because Congress recently established the National Commission on Military, National,
and Public Service (“the Commission”) to consider
whether Congress should modify or abolish the current draft registration requirements. Dkt. 80 at 17;
National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, § 551, 130 Stat. 2000, 2130
(2016). Although the Ninth Circuit previously held
that the case was ripe despite ongoing congressional
debate, Defendants contend that the recently created
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Commission now renders Plaintiffs’ claims unripe. Id.
at 19. Defendants request that the court stay proceedings until the Commission has issued its report and
Congress has had the opportunity to act on the Commission’s recommendations. Id. at 21.
However, the existence of the Commission does not
affect the ripeness of Plaintiffs’ claims. The question
of whether the MSSA violates the Constitution is
purely legal; no further factual development is necessary for the court to decide the issue. Plaintiffs’ claims
are not “abstract or hypothetical.” Choice Inc. of Tex.,
691 F.3d at 715 (quoting New Orleans Pub. Serv., Inc.,
833 F.2d at 586)). While the Commission’s recommendations could affect the current proceedings, the Commission is not set to release its final report until 2020.
Dkt. 86-1 at 4 (Commission interim report). There is
no guarantee that the Commission will recommend
amending or abolishing the MSSA—and, even if it
does, Congress is not required to act on those recommendations. Congress has been debating the maleonly registration requirement since at least 1980 and
has recently considered and rejected a proposal to include women in the draft. Rostker, 453 U.S. at 60; Dkt.
80-3 at 11 (Letter to Armed Services Committee
Chairs, Sept. 2016). It is Defendants’ arguments—not
Plaintiffs’ claims—that are too hypothetical for the
court’s consideration. 3
Defendants also argue that deference to Congress is appropriate when pending legislation may render a legal challenge moot,
and that such deference applies here. Dkt. 80 at 19–20 (citing
3
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“However, even where an issue presents purely legal questions, the plaintiff must show some hardship
in order to establish ripeness.” Choice Inc. of Tex., 691
F.3d at 715 (citing Cent. & S. W. Servs., Inc. v. EPA,
220 F.3d 683, 690 (5th Cir. 2000)) (quotations omitted).
Here, Plaintiffs have demonstrated that they are subject to the MSSA. Dkt. 73-2. NCFM’s members include
individuals who will have to register under the MSSA
in the future and will be subject to ongoing requirements to update their personal information. Id. Moreover, “discrimination itself, by perpetuating ‘archaic
and stereotypic notions’ . . . can cause serious non-economic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.”Heckler v. Mathews, 465
U.S. 728, 739–40, 104 S. Ct. 1387 (1984) (citations
omitted). Thus, Plaintiffs have shown “some hardship”
and the case is ripe.
2.
Separation of Powers
Second, Defendants effectively argue that the court
must grant a stay to give Congress proper deference
in the realm of military affairs and avoid violating the
separation of powers. Dkt. 80 at 11–13. Defendants
cite Congress’s broad constitutional power to conduct
military affairs and the Supreme Court’s decision in
Rostker v. Goldberg, 453 U.S. 57, 101 S. Ct. 2646
Schlesinger v. Ballard, 419 U.S. 498, 510 n.13, 95 S. Ct. 572
(1975)). However, Defendants do not cite any pending legislation
that would add women to the draft.
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(1981). Dkt. 80 at 17–19. However, “separation of powers does not mean that the branches ‘ought to have no
partial agency in, or no controul over the acts of each
other.’” Clinton, 520 U.S. at 703 (quoting The Federalist No. 47, at 325–326 (James Madison) (J. Cooke ed.,
1961) (emphasis in original)). Even judicial review
that “significantly burden[s] the time and attention”
of another branch “is not sufficient to establish a violation of the Constitution.” Id. The Supreme Court has
repeatedly affirmed that “concerns of national security . . . do not warrant abdication of the judicial role.”
Holder v. Humanitarian Law Project, 561 U.S. 1, 34
(2010).
Rostker itself expressly acknowledged that Congress does not receive “blind deference in the area of
military affairs.” 453 U.S. at 67. Even though congressional power in this area is “broad and sweeping,”
Congress may not “exceed[] constitutional limitations
on its power in enacting such legislation.” Rumsfeld v.
Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47, 58,
126 S. Ct. 1297 (2006) (citations and quotations omitted). As this court previously reasoned:
The court agrees with Defendants that Congress has broad power to raise and regulate
armies and navies. Rostker, 453 U.S. at 65.
Thus, “a healthy deference to legislative and
executive judgments in the area of military
affairs” should be given by the court. Id. at 66.
Rostker thoroughly explained the reason to
provide deference to Congress when dealing
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with military affairs. See id. at 64–67. But
“[n]one of this is to say that Congress is free
to disregard the Constitution when it acts in
the area of military affairs. In that area, as
any other, Congress remains subject to the
limitations of the Due Process Clause.” Id. at
67.
Dkt. 66 at 6–7 (denying Defendants’ motion to dismiss for failure to state a claim). Rostker explicitly requires Congress to comply with the Constitution in
the area of military affairs, and Plaintiffs allege that
the MSSA violates the Constitution. Rostker, 453 U.S.
at 67; Dkt. 60 at 12. Additionally, as noted above, Congress has been debating the MSSA’s registration requirement for decades with no definite end in sight.
Even constitutionally mandated deference does not
justify a complete and indefinite stay when parties allege that the federal government is presently violating
their constitutional rights.
3.
Inherent Power
Finally, Defendants request that the court exercise
its discretion to stay the case. This court “has broad
discretion to stay proceedings as an incident to its
power to control its own docket.” Clinton, 520 U.S. at
706. Even if the burdens on the government do not violate separation-of-powers principles, “those burdens
are appropriate matters for the District Court to evaluate in its management of the case.” Id. at 707. “[T]he
power to stay proceedings is incidental to the power
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inherent in every court to control the disposition of the
causes on its docket with economy of time and effort
for itself, for counsel, and for litigants.” Qualls v. EOG
Res., Inc., No. H-18-666, 2018 WL 2317718, at *2 (S.D.
Tex. May 22, 2018) (Miller, J.) (alteration in original)
(quoting Landis v. N. Am. Co., 299 U.S. 248, 254, 57
S. Ct. 163 (1936)). The movant must “make out a clear
case of hardship or inequity in being required to go
forward.” Landis, 299 U.S. at 254.
Defendants contend that a court ruling at this time
“could disrupt or distract a process that may ultimately render [the issue] moot” if the Commission recommends “ending registration in its entirety.” Dkt. 80
at 18; see also Dkt. 80 at 21 (“Alternatively, such a
ruling could require the Government to spend millions
of dollars and expend significant resources and effort
changing the system of selective service—a considerable hardship—when Congress may wish to change
the system in a completely different manner following
the Commission’s review.”). However, if the court
stayed the case until Congress acted on the Commission’s recommendations, the case could be stayed indefinitely. The Commission is under no obligation to
recommend certain outcomes to Congress, and Congress is under no obligation to follow or act on those
recommendations. The fact and nature of future congressional action is highly speculative. Thus, the
court’s time and effort is likely best spent on the case
at this stage, rather than at some indefinite time in
the future.
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Moreover, present resolution of the case will not create such a hardship for Defendants that the hardship
justifies a continuous and indefinite violation of Plaintiffs’ constitutional rights. Congressional resolution of
this issue, if it occurs, will not necessarily be less burdensome for Defendants than judicial resolution. Defendants have not made out a “clear case of hardship
or inequity.” Landis, 299 U.S. at 254. Therefore, the
court declines to use its inherent authority to stay the
case.
B. Rostker v. Goldberg and Changing Opportunities for Women in the Military
On substance, Defendants first argue that the Supreme Court’s holding in Rostker v. Goldberg, 453 U.S.
57, 101 S. Ct. 57 (1981), forecloses any challenge to
gender discrimination in the MSSA. Dkt. 80 at 21–22.
However, as this court previously held in denying Defendants’ motion to dismiss, Rostker is factually distinguishable from the current case. Dkt. 66 (order
denying Defendants’ motion to dismiss for failure to
state a claim). The court again declines to resolve the
case on Rostker alone.
1.
The Rostker Opinion
In Rostker, the Supreme Court squarely addressed
the question of whether the male-only registration requirement in the MSSA violated equal protection
principles. 453 U.S. at 83. The Court first noted that
judging the constitutionality of a statute passed by
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Congress is “the gravest and most delicate duty that
this Court is called upon to perform.” Id. at 64 (quoting Blodgett v. Holden, 275 U.S. 142, 148, 48 S. Ct.
105 (1927)). Further, the case arose “in the context of
Congress’ authority over national defense and military affairs, and perhaps in no other area has the
Court accorded Congress greater deference.” Id. at
64–65. Thus, the Rostker Court emphasized that it
owed great deference to Congress’s judgment in passing the MSSA because “the Constitution itself requires such deference to congressional choice.” Id. at
67.
The Court held that the MSSA was constitutional.
Id. at 83. After considering the extensive legislative
history of the MSSA, the Court concluded that “the
decision to exempt women from registration was not
the accidental by-product of a traditional way of
thinking about females.” Id. at 74 (quotations omitted). Instead, the Court acknowledged that women
were not eligible for combat, but that the purpose of
registration was to prepare for a draft of combat
troops. Id. at 76–77. The Court reasoned:
This is not a case of Congress arbitrarily
choosing to burden one of two similarly situated groups, such as would be the case with
an allblack or all-white, or an all-Catholic or
all-Lutheran, or an all-Republican or allDemocratic registration. Men and women,
because of the combat restrictions on women,
are simply not similarly situated for purposes
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of a draft or registration for a draft. Congress’
decision to authorize the registration of only
men, therefore, does not violate the Due Process Clause.
Id. at 78–79. Thus, the Court concluded that
women’s ineligibility for combat “fully justifie[d]” the
MSSA’s male-only registration requirement. Id. at 79.
“The Constitution requires that Congress treat similarly situated persons similarly, not that it engage in
gestures of superficial equality.” Id. Because men and
women were not similarly situated with respect to
combat eligibility, and therefore not similarly situated
with respect to the draft, the Court held that the
MSSA did not violate equal protection principles. Id.
2.
Factual Developments Since Rostker
In the nearly four decades since Rostker, however,
women’s opportunities in the military have expanded
dramatically. In 2013, the Department of Defense officially lifted the ban on women in combat. Dkt. 73-1
at 9. In 2015, the Department of Defense lifted all gender-based restrictions on military service. Dkt. 73-1 at
12. Thus, women are now eligible for all military service roles, including combat positions.
Therefore, although “‘judicial deference . . . is at its
apogee’ when Congress legislates under its authority
to raise and support armies,” Rumsfeld, 547 U.S. at 58
(quoting Rostker, 453 U.S. at 70), the Rostker holding
does not directly control here. The dispositive fact in
Rostker—that women were ineligible for combat—can
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no longer justify the MSSA’s gender-based discrimination. 4 “[A] legislative act contrary to the constitution is not law,” and it is the “province and duty of the
judicial department to say what the law is.” Marbury
v. Madison, 1 Cranch 137, 177, 5 U.S. 137 (1803). The
court will consider the constitutionality of the MSSA
anew.
C. The MSSA and Equal Protection
1.
Standard of Review
Laws differentiating on the basis of gender “attract
heightened review under the Constitution’s equal protection guarantee.” Sessions v. Morales-Santana, 137
S. Ct. 1678, 1689 (2017) (citing Califano v. Westcott,
443 U.S. 76, 84, 99 S. Ct. 2655 (1979)). Typically,
“[t]he defender of legislation that differentiates on the
basis of gender must show ‘at least that the [challenged] classification serves important governmental
objectives and that the discriminatory means employed are substantially related to the achievement of
those objectives.’” Id. at 1690 (quoting United States v.
Defendants argue that under Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917
(1989), this court is bound by Supreme Court precedent regardless of a change in factual circumstances. Dkt. 80 at 21–22. However, Rodriguez de Quijas merely notes that, in the face of two
legally conflicting decisions, lower courts should follow the decision most directly on point instead of attempting to overrule one
of the conflicting decisions. 490 U.S. at 484. Despite Rostker’s undeniable relevance to this case, the Rostker holding is not directly
on point and therefore does not mandate judgment in Defendants’
favor.
4
App-85
Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264 (1996)).
Further, “the classification must substantially serve
an important governmental interest today”—it is insufficient that the law served an important interest in
the past. Id. (citing Obergefell v. Hodges, 135 S. Ct.
2584, 2603 (2015)) (emphasis in original).
Although the MSSA discriminates on the basis of
gender, Defendants argue that a lower, rational-basislike standard of review applies. Defendants contend
that “the Court’s departures—in Rostker and other
military cases—from core aspects of strict or intermediate scrutiny demonstrates that its approach most
closely resembles rational-basis review.” Dkt. 80 at 23.
Defendants emphasize the Rostker Court’s highly deferential approach to reviewing the MSSA and argue
that recent precedent, including Trump v. Hawaii,
138 S. Ct. 2392 (2018), affirms this lower standard of
review in the military context. Id. at 24.
However, Defendants’ reliance on Trump is misplaced. The Trump decision concerned judicial review
of the President’s power over immigration. 138 S. Ct.
at 2420. While the Trump Court acknowledged that a
deferential standard of review applied “across different contexts and constitutional claims,” the Court’s
entire discussion centered on different claims within
the realm of immigration law. Id. at 2419. Certainly,
there are significant similarities between the Court’s
deference to Congress in military affairs and its deference to the President in immigration affairs.
App-86
However, the Trump decision is tangential, at best, to
the issue currently before the court.
Instead, Rostker itself provides the applicable
standard of review when Congress exercises its constitutional power to raise and support armed forces.
In Rostker, as here, the government expressly argued
that the Court should “only [] determine if the distinction drawn between men and women bears a rational
relation to some legitimate Government purpose.” 453
U.S. at 69. However, the Court expressly declined to
adopt this position. Id. at 69–70. Rather, the Court relied on Schlesinger v. Ballard, 419 U.S. 498, 95 S. Ct.
572 (1975), in which the Court upheld naval regulations creating different promotion requirements for female officers. Rostker, 453 U.S. at 71. As the Court
explained, “[Schlesinger] did not purport to apply a
different equal protection test because of the military
context, but did stress the deference due congressional
choices among alternatives in exercising the congressional authority to raise and support armies and make
rules for their governance.” Id. at 71.
The Court emphasized that the judiciary “cannot ignore Congress’ broad authority conferred by the Constitution to raise and support armies when we are
urged to declare unconstitutional its studied choice of
one alternative in preference to another for furthering
that goal.” Id. at 71–72. However, the Court went on
to reason that “the Government’s interest in raising
and supporting armies is an ‘important governmental
interest,’” and that “[t]he exemption of women from
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registration is . . . closely related to Congress’ purpose
in authorizing registration.” Id. at 70, 79 (quoting
Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451 (1976)). The
Rostker Court therefore subjected the MSSA to a
heightened level of scrutiny, even in light of the
Court’s marked deference to Congress’s “studied
choice” between alternatives. Id. at 72.
2.
Analysis
Thus, the dispositive question here is whether the
MSSA both serves important governmental objectives
and is substantially related to the achievement of
those objectives. Morales-Santana, 137 S. Ct. at 1689.
First, “[n]o one could deny” that the governmental objective of raising and supporting armies is an “important governmental interest.” Rostker, 453 U.S. at
70. However, Plaintiffs initially counter that registration, and the draft itself, will not necessarily be used
to draft combat troops in future wars. Dkt. 73 at 20–
21. Plaintiffs contend that the court should analyze
the MSSA with the understanding that registrants
may be drafted into both combat and non-combat roles,
and that Congress’s important objective should be understood in that light. Id.
However, while future wars may require a draft of
non-combat troops, Congress still understands the
draft, as it currently exists, to be for the “mass mobilization of primarily combat troops.” National Defense
Authorization Act, Pub. L. No. 114-328, § 552(b)(4),
130 Stat. at 2131. This determination is well within
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Congress’s constitutional role of governing and maintaining effective armed forces. See Rostker, 453 U.S.
at 68. The court’s inquiry is thus restricted to whether
the MSSA’s male-only registration requirement is
substantially related to Congress’s important objective of drafting and raising combat troops.
Next, Defendants must show that the MSSA’s maleonly registration requirement is “substantially related” to Congress’s objective. See Miss. Univ. for
Women v. Hogan, 458 U.S. 718, 724, 102 S. Ct. 3331
(1982). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Virginia, 518 U.S. at 533;
see also Rostker, 453 U.S. at 67 (noting that the Court
previously struck down gender-based classifications
that were based on “overbroad generalizations”). “[I]f
the statutory objective is to exclude or ‘protect’ members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate.” Mississippi
Univ. for Women, 458 U.S. at 724 (citing Frontiero v.
Richardson, 411 U.S. 677, 691, 93 S. Ct. 1764 (1973)
(plurality opinion)).
Defendants offer two potential justifications for
male-only registration. 5 First, Defendants argue that
In 2016, a Senate-passed version of the National Defense Authorization Act (“NDAA”) would have required women to register
for the draft. Dkt. 80-3 at 11 (Letter to Armed Services
5
App-89
female eligibility to serve in combat roles “does not answer the question of whether women should be conscripted into combat roles” because conscription could
lead to “potential tradeoffs” for the military. Dkt. 80
at 27 (emphasis added). Construed liberally, Defendants appear to be arguing that requiring women to
register for the draft would affect female enlistment
by increasing the perception that women will be forced
to serve in combat roles. Id. at 28; Dkt. 80-3 at 173.
However, this argument smacks of “archaic and
overbroad generalizations” about women’s preferences. Schlesinger, 419 U.S. at 507–08; see also
Committee Chairs, Sept. 2016). The Senate Armed Services
Committee acknowledged that “the ban of females serving in
ground combat units has been lifted by the Department of Defense, and as such, there is no further justification to apply the
selective service act to males only.” S. Rep. No. 114-255, at 150–
51 (2016). However, opposition to this change remained, and the
final version of the NDAA instead created the Commission to explore a number of draft-related topics. National Defense Authorization Act, Pub. L. No. 114-328, § 552, 130 Stat. at 2131; see Dkt.
80-3 at 11 (Letter to Armed Services Committee Chairs). However, based on record before the court, Congress generated very
little documentation on why it ultimately declined to amend the
MSSA. Defendants only offer a 2016 letter from a group of senators formally requesting that the House remove the provision
adding women to the draft. Dkt. 80-3 at 11 (Letter to Armed Services Committee Chairs) (“We should not hinder the brave men
and women of our armed forces by entrapping them in unnecessary cultural issues . . . The provision of the FY17 NDAA requiring women to register for the Selective Service should be removed.”). Defendants do not offer concerns about “unnecessary
cultural issues” as a justification for the MSSA’s continued discrimination. Thus, the court must primarily rely on congressional records from previous debates on the MSSA.
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Virginia, 518 U.S. at 533; Rostker, 453 U.S. at 67. At
its core, Defendants’ argument rests on the assumption that women are significantly more combat-averse
than men. Defendants do not present any evidence to
support their claim or otherwise demonstrate that
this assumption is anything other than an “ancient canard[] about the proper role of women.” Rostker, 453
U.S. at 86 (Marshall, J., dissenting) (quotations and
citations omitted). As the Court reasoned in Schlesinger:
In both Reed and Frontiero[,] the challenged
classifications based on sex were premised on
overbroad generalizations . . . that men would
generally be better estate administrators
than women . . . [and] that female spouses of
servicemen would normally be dependent on
their husbands, while male spouses of servicewomen would not. In contrast, the different treatment of men and women naval officers . . . reflects, not archaic and overbroad
generalizations, but, instead, the demonstrable fact that male and female line officers in
the Navy are not similarly situated with respect to opportunities for professional service.
419 U.S. at 507–08. It is not a “demonstrable fact”
that fewer women will enlist for fear of being conscripted into combat. This justification fails.
Moreover, this justification appears to have been
created for litigation. See Virginia, 518 U.S. at 533.
App-91
Defendants have not produced any evidence that Congress actually looked to this concern in declining to
add women to the draft. Defendants’ evidence establishes only that Congress may have considered a similar issue in evaluating the Department of Defense’s
decision to open combat positions to women. See Dkt.
80-3 at 171–74. Thus, although the court must give
significant deference to Congress’s judgment in military affairs, such deference is not implicated here.
Second, Defendants argue that Congress preserved
the male-only registration requirement out of concern
for the administrative burden of registering and drafting women for combat. Dkt. 80 at 28. Unlike Defendants’ first offered justification, Congress considered
this issue extensively in debates over the MSSA. See
S. Rep. No. 96-826, at 156–61 (1980); Rostker, 453 U.S.
at 81. Thus, the court’s deference to Congress’s “studied choice” is potentially at its height. Rostker, 453
U.S. at 72.
Typically, “any statutory scheme which draws a
sharp line between the sexes, solely for the purpose of
achieving administrative convenience, necessarily
commands ‘dissimilar treatment for men and women
who are . . . similarly situated,’ and therefore involves
the ‘very kind of arbitrary legislative choice forbidden
by the [Constitution].’” Frontiero, 411 U.S. at 691
(quoting Reed v. Reed, 404 U.S. 71, 77, 92 S. Ct. 251
(1971)). However, even in light of this general rule, the
Rostker Court considered and deferred to Congress’s
administrative concerns. See Rostker, 453 U.S. at 81–
App-92
82; accord Schlesinger, 419 U.S. at 507–08. The Court
distinguished past precedent by noting that the previous classifications “were based on overbroad generalizations” but that, in contrast, Congress’s choice to retain the MSSA was based on “judgments concerning
military operations and needs.” Id. at 67–68 (quotations omitted). Thus, Rostker affirms that administrative concerns may justify statutory gender classifications in service of Congress’s broad power over military affairs.
Congress cited several administrative concerns in
its 1980 rejection of adding women to the draft. The
primary concern, again, centered around administrative difficulties caused by the ban on women in combat.
S. Rep. No. 96-826, at 156–61; see also id. at 157 (“The
policy precluding the use of women in combat is, in the
Committee’s view, the most important reason for not
including women in a registration system.”). The
Committee had also expressed concern that “training
would be needlessly burdened by women recruits who
could not be used in combat.” Rostker, 453 U.S. at 81
(quoting S. Rep. No. 96-226, at 9 (1979)). However, as
previously discussed, women are now eligible for and
have been integrated into combat units. Thus, although Congress was previously concerned about
drafting large numbers of people who were categorically ineligible for combat, this concern factually no
longer justifies the MSSA.
However, according to Defendants, Congress also
worried about administrative problems caused by
App-93
“women’s different treatment with regard to dependency, hardship[,] and physical standards.” Id. at 28; S.
Rep. No. 96-826, at 159. Defendants emphasize that
Congress’s concern about the physical readiness of
women for combat has not changed. Dkt. 80 at 28–29.
Defendants point to an acknowledgment by the Department of Defense that “[t]hose who are opposed” to
female mandatory registration believe “it would be inefficient to draft thousands of women when only a
small percentage would be physically qualified to
serve as part of a combat troop.” Dkt. 80 at 28; Dkt.
73-1 at 145–46 (Department of Defense, Report on the
Purpose and Utility of a Registration System for Military Selective Service, 2017). Therefore, “if men will,
for the foreseeable future, comprise the predominant
percentage of persons serving in combat forces, then
the basis for the MSSA has not materially changed.”
Dkt. 80 at 29; see Tuan Anh Nguyen v. INS, 533 U.S.
53, 73, 121 S. Ct. 2053 (2001) (noting that equal protection principles do not prohibit acknowledgment of
biological differences between genders).
Again, however, this argument falls short. At the
outset, concerns about female physical ability do not
appear to have been a significant factor in Congress’s
decision-making process regarding the MSSA. Instead,
Congress mentioned concerns about female physical
ability in passing, within a list, in one sentence of Defendants’ cited report. S. Rep. No. 96-826, at 159. In
contrast, Congress extensively discussed the ban on
women in combat. Id. at 156–61. Congress also
App-94
focused on the societal consequences of drafting
women, such as the perceived impropriety of young
mothers going off to war and leaving young fathers to
care for children. Id. at 159. Defendants’ evidence
simply does not support the argument that Congress
preserved a male-only draft because of concerns about
female physical ability. Again, while the court must
defer to Congress, the court does not have to defer to
proffered justifications that have little, if anything, to
do with Congress’s actual judgment on the matter. See
Morales-Santana, 137 S. Ct. at 1696–97 (quoting Virginia, 518 U.S. at 533, 535–36) (“It will not do to ‘hypothesiz[e] or inven[t]’ governmental purposes for
gender classifications ‘post hoc in response to litigation.’”).
Further, under Rostker, the dispositive issue is
whether men and women are similarly situated in regard to the draft. Rostker, 453 U.S. at 79. Thus, the
relevant question is not what proportion of women are
physically eligible for combat—it may well be that
only a small percentage of women meets the physical
standards for combat positions. However, if a similarly small percentage of men is combat-eligible, then
men and women are similarly situated for the purposes of the draft and the MSSA’s discrimination is
unjustified. Defendants provide no evidence that Congress ever looked at arguments on this topic and then
made a “studied choice” between alternatives based
on that information. Cf. id. at 71–72.
App-95
Had Congress compared male and female rates of
physical eligibility, for example, and concluded that it
was not administratively wise to draft women, the
court may have been bound to defer to Congress’s
judgment. Instead, at most, it appears that Congress
obliquely relied on assumptions and overly broad stereotypes about women and their ability to fulfill combat roles. 6 Thus, Defendants’ second proffered justification appears to be an “‘accidental by-product of a
traditional way of thinking about females,’” rather
than a robust, studied position. Rostker, 453 U.S. at
74 (quoting Califano v. Webster, 430 U.S. 313, 320, 97
S. Ct. 1192 (1977)).
In short, while historical restrictions on women in
the military may have justified past discrimination,
men and women are now “similarly situated for purposes of a draft or registration for a draft.” Rostker,
453 U.S. at 78. If there ever was a time to discuss “the
place of women in the Armed Services,” that time has
passed. Id. at 72. Defendants have not carried the burden of showing that the male-only registration requirement continues to be substantially related to
Congress’s objective of raising and supporting armies.
The average woman could conceivably be better suited physically for some of today’s combat positions than the average man,
depending on which skills the position required. Combat roles no
longer uniformly require sheer size or muscle. Again, Defendants
provide no evidence that Congress considered evidence of alleged
female physical inferiority in combat—either in 1980 or 2016—
and concluded that drafting women was unwise based on that
evidence.
6
App-96
IV. CONCLUSION
Defendants’ motion to stay and motion for summary
judgment (Dkt. 80) is DENIED. Although Plaintiffs’
complaint requests injunctive relief, Plaintiffs have
not briefed the issue and their summary judgment
motion only requests declaratory relief. Dkt. 60 at 13;
Dkt. 73 at 24. Therefore, Plaintiffs’ request for an injunction (Dkt. 60) is DENIED. Plaintiffs’ motion for
summary judgment (Dkt. 73) is GRANTED.
Signed at Houston, Texas on February 22, 2019.
/s/ Gray H. Miller
Gray H. Miller
Senior United States District Judge
App-97
App-98
Appendix I
[Filed: Apr. 6, 2018]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NATIONAL COALITION FOR
MEN, et al.,
Plaintiffs,
v.
SELECTIVE SERVICE
SYSTEM, et al.,
Defendants.
§
§
§
§ CIVIL ACTION
§ H-16-3362
§
§
§
MEMORANDUM OPINION AND ORDER
Pending before the court is a motion to dismiss filed
by defendants Selective Service System (“SSS”) and
Lawrence Romo (collectively, “Defendants”). Dkt. 63.
Plaintiffs National Coalition for Men (“NCFM”),
James Lesmeister, and Anthony Davis (collectively,
“Plaintiffs”) responded. Dkt. 64. Defendants replied.
Dkt. 65. Having considered the complaint, motion, response, reply, and applicable law, the court is of the
opinion that the motion to dismiss should be DENIED.
I.
BACKGROUND
This is a case about the constitutionality of the Military Selective Service Act’s (“MSSA”) requirement for
males—but not females—to register for the draft. 1
For the purposes of a motion to dismiss, the court accepts all
well-pled facts contained in Plaintiffs’ complaint as true. Kaiser
1
App-99
Dkt. 60. Unless otherwise provided by the MSSA,
“every male citizen of the United States[] and every
other male person residing in the United States . . .
between the ages of eighteen and twenty-six” must
register with SSS. 50 U.S.C. § 3802(a); Dkt. 60 at 10.
After registering, men have a continuing obligation to
update SSS with any changes in their address or status. 50 U.S.C. § 3813; Dkt. 60 at 10–11. Failure to
comply with the MSSA can result in fines or imprisonment. 50 U.S.C. § 3811; Dkt. 60 at 11.
Lesmeister and Davis are males subject to the draft
requirements, and both recently registered accordingly. Dkt. 60 at 4–5. NCFM is a non-profit, 501(c)(3)
educational and civil rights corporation. Id. at 2. Davis is a NCFM member. Id. at 3. Like Davis, some of
its members are males subject to the draft requirements and have already registered or will have to register. Id.
On April 4, 2013, NCFM and Lesmeister filed a
complaint in the Central District of California against
Defendants alleging violations of the Fifth and Fourteenth Amendments of the Constitution and violation
of 42 U.S.C. § 1983 for sex-based discrimination in the
draft system. Dkt. 1. Plaintiffs argue that because
women can participate in combat, the Supreme Court
decision upholding the constitutionality of sex-based
discrimination in the draft is no longer applicable. Dkt.
1 (citing Rostker v. Goldberg, 453 U.S. 57, 101 S. Ct.
57 (1981)).
Initially, Judge Dale S. Fischer, the Central District
of California judge, dismissed the case as not ripe for
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677
F.2d 1045, 1050 (5th Cir. 1982).
App-100
review. Dkt. 20. The Ninth Circuit reversed and remanded. Nat’l Coalition for Men v. Selective Serv. Sys.,
640 F. App’x 664, 665 (9th Cir. 2016). Then, Lesmeister and NCFM voluntarily dismissed their Fourteenth
Amendment and § 1983 claims. Dkt. 43. On November
9, 2016, Judge Fischer granted Defendants’ motion to
dismiss NCFM without prejudice because the organization lacked associational standing. Dkt. 44 at 4.
Further, the court determined that venue was not
proper in the Central District of California and transferred the case to the Southern District of Texas,
where Lesmeister resides. Id. at 5. On August 16,
2017, this court granted Lesmeister leave to file an
amended complaint. Dkt. 59. Lesmeister’s amended
complaint named NCFM as a plaintiff and added Davis as a plaintiff. Dkt. 60.
In the instant motion, Defendants move to dismiss
Plaintiffs’ remaining Fifth Amendment claim under:
(1) Rule 12(b)(1) because Plaintiffs do not have standing to sue; and (2) Rule 12(b)(6) because Plaintiffs do
not state a claim upon which relief can be granted.
Dkt. 63 at 2.
II. Legal Standard
A. Rule 12(b)(1) Standard
A motion to dismiss under Rule 12(b)(1) challenges
a federal court’s subject matter jurisdiction. Fed. R.
Civ. P. 12(b)(1). Under Rule 12(b)(1), a claim is
properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the claim. Home Builders
Ass’n v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998). Where, as here, a motion to dismiss for lack of
jurisdiction is limited to a facial attack on the
App-101
pleadings, it is subject to the same standard as a motion brought under Rule 12(b)(6). See Benton v. United
States, 960 F.2d 19, 21 (5th Cir. 1992).
B. Rule 12(b)(6) Standard
Rule 8(a)(2) requires that the pleading contain “a
short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
A party against whom claims are asserted may move
to dismiss those claims when the nonmovant has
failed “to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6).
To survive a Rule 12(b)(6) motion to dismiss, a
plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.” In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S. Ct. 1955 (2007)). “Factual allegations must be
enough to raise a right to relief above the speculative
level on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Twombly,
550 U.S. at 555 (citations omitted). While the allegations need not be overly detailed, a plaintiff’s pleading
must still provide the grounds of his entitlement to relief, which “requires more than labels and conclusions,”
and “a formulaic recitation of the elements of a cause
of action will not do.” Id.; see also Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S. Ct. 1937 (2009). “[C]onclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion
to dismiss.” Blackburn v. City of Marshall, 42 F.3d 925,
931 (5th Cir. 1995). Instead, “[a] claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that
App-102
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Evaluating a motion to dismiss
is a “context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. at 679. “Ultimately, the question for a court
to decide is whether the complaint states a valid claim
when viewed in the light most favorable to the plaintiff.” NuVasive, Inc. v. Renaissance Surgical Ctr., 853
F. Supp. 2d 654, 658 (S.D. Tex. 2012).
III. ANALYSIS
A. Plaintiffs’ Standing
Defendants move to dismiss Plaintiffs’ claim because Plaintiffs do not have standing to sue.Dkt. 63 at
19. Defendants argue that Lesmeister and Davis lack
standing because they have not suffered an injury
from the MSSA’s male-only registration requirement.
Id. at 20. They also argue that because the individual
plaintiffs lack standing, NCFM lacks associational
standing. Id. at 23.
1. Lesmeister/Davis Standing
Under Article III of the Constitution, a plaintiff
must have standing to sue in order for a court to have
jurisdiction. See Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S. Ct.
693 (2000). “[T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed
by a favorable decision.” Id. at 180–81.
App-103
Defendants argue that Lesmeister and Davis lack
standing because: (1) neither can demonstrate an injurious harm; and (2) they cannot assert a de facto injury simply due to the alleged constitutional violation.
Dkt. 63 at 20. Plaintiffs respond that they “are
harmed because they are required to register for military conscription, continually report their whereabouts to the federal government under penalty of fines,
jail, and will be denied federal benefits if they do not.”
Dkt. 64 at 2. Further, they allege they are harmed due
to the sex-based discrimination, which sufficiently
constitutes an injury. Id. Because the court agrees
that Lesmeister and Davis have alleged an injury, the
court need not consider whether the sex-based discrimination alone constitutes an injury.
As Judge Fischer previously found in this case,
Plaintiffs allege that: (1) the MSSA requires males between the ages of 18 and 26 to register with SSS; (2) a
registrant has a continuing obligation to update SSS
with any changes in his address or status; (3) failure
to comply with the MSSA can result in fines or imprisonment; and (4) Lesmeister and Davis have registered
and are subject to the continuing obligation. Dkt. 44
at 3; see also Dkt. 60 at 10–11. Although Defendants
argue that the prospect of being drafted fails to constitute a concrete harm, the court need not decide that
issue because that is not the harm Plaintiffs allege.
Defendants also argue that because Lesmeister and
Davis have complied with the MSSA, neither is subject to any action to enforce its requirements. Id. Regardless, both have a continuing obligation to update
SSS with changes to their information. Dkt. 60 at 10–
11. That obligation, paired with the requirement to
register with SSS, constitutes an injury sufficient for
App-104
Article III standing. See E. Tex. Baptist Univ. v. Sebelius, 988 F. Supp. 2d 743, 758 (S.D. Tex. 2013) (Rosenthal, J.) (“HBU’s injury arises from the fact that the
accommodation requires it to comply with the self-certification steps or face severe penalties. . . . HBU is
harmed when it has to fill out the form authorizing its
TPA to provide coverage and payments for emergency
contraceptives, designating its TPA as the administrator for no-cost-sharing contraceptive benefits, and
informing the TPA of its statutory and regulatory obligations.”), rev’d on other grounds sub nom. E. Tex.
Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir. 2015),
vacated on other grounds sub nom. Zubik v. Burwell,
136 S. Ct. 1557 (2016); see also Goldberg v. Rostker,
509 F. Supp. 586, 590–91 (E.D. Pa. 1980), rev’d on
other grounds, 453 U.S. 57 (1981). Because Lesmeister and Davis have Article III standing, Defendants’
motion is DENIED.
2.
Associational Standing
“It is well-established that an association has Article III standing to bring a suit on behalf of its members when ‘(a) its members would otherwise have
standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief
requested requires the participation of individual
members in the lawsuit.’” Funeral Consumers All., Inc.
v. Serv. Corp. Int’l, 695 F.3d 330, 343 (5th Cir. 2012)
(quoting Hunt v. Wash. State Apple Advert. Comm’n,
432 U.S. 333, 343, 97 S. Ct. 2434 (1977)). Defendants
argue that because NCFM cannot allege that any
members have standing, NCFM also lacks standing.
Dkt. 63 at 24. Because Davis is a member of NCFM
App-105
and has standing to sue in his own right, NCFM does,
too. See Funeral Consumers, 695 F.3d at 343; see also
supra Section III.A.1. Thus, Defendants’ argument
fails, and the motion is DENIED.
B. Failure to State a Claim
Defendants argue that Plaintiffs fail to state a claim
because: (1) entry of the relief sought would impermissibly intrude on Congress’s authority over military affairs; and (2) Rostker binds the court and requires dismissal. Dkt. 63 at 25, 28. The court disagrees with
both arguments. The court agrees with Defendants
that Congress has broad power to raise and regulate
armies and navies. Rostker, 453 U.S. at 65. Thus, “a
healthy deference to legislative and executive judgments in the area of military affairs” should be given
by the court. Id. at 66. Rostker thoroughly explained
the reason to provide deference to Congress when
dealing with military affairs. See id. at 64–67. But
“[n]one of this is to say that Congress is free to disregard the Constitution when it acts in the area of military affairs. In that area, as any other, Congress remains subject to the limitations of the Due Process
Clause.” Id. at 67. Plaintiffs allege that th e MSSA violates the Constitution. Dkt. 60 at 12. Because Rostker explicitly requires Congress to comply with the
Constitution in the area of military affairs, and because Plaintiffs allege Defendants did not, Plaintiffs
state a claim upon which relief can be granted. See
Rostker, 453 U.S. at 67; see also Dkt. 60 at 12.
Regarding Rostker’s applicability, as the court explained, Rostker did not hold that Congress receives
blind deference in the area of military affairs. 453 U.S.
at 67. And regarding Rostker’s holding that the male-
App-106
only draft did not violate the Constitution, the factual
circumstances of this case are different. See id. at 76,
77 (“Women as a group, however, unlike men as a
group, are not eligible for combat. . . . The existence of
the combat restrictions clearly indicates the basis for
Congress’[s] decision to exempt women from registration.”). Now, women can serve in combat roles. Dkt. 60
at 7. Because the alleged factual circumstances of this
case differ from the dispositive facts in Rostker, the
court cannot conclude, at this stage, that Rostker controls the outcome.
IV. CONCLUSION
Because Plaintiffs have standing and assert a claim
upon which relief can be granted, Defendants’ motion
to dismiss (Dkt. 63) is DENIED.
Signed at Houston, Texas on April 6, 2018.
/s/ Gray H. Miller
Gray H. Miller
Senior United States District Judge
App-107
Appendix J
No. 25________
.
In the Supreme Court of the United States
___________
VIKRAM VALAME,
Petitioner,
v.
UNITED STATES OF AMERICA, ET AL
Respondents.
___________
Application of Vikram Valame to the
Honorable Justice Kagan to Extend the Time
to File a Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
___________
VIKRAM VALAME
3700 O Street NW
Washington, D.C. 20057
vik.valame@gmail.com
408-712-4188
Applicant
January 15, 2026
App-108
To: Justice Elena Kagan, Circuit Justice for the
Ninth Circuit
Pursuant to 28 U.S.C. § 2101(c) and Rules 13.5, 30.2,
and 30.3 of the Rules of this Court, Applicant Vikram
Valame respectfully requests a 35-day extension of
time, up to and including Monday, March 9, 2026, to
file his petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for
the Ninth Circuit in this case. The opinion of the court
of appeals (App., infra, 1A-5A) is reported at 157 F.4th
1172. An order of the district court (App., infra, 6A11A) is unreported but available at 2024 WL 251415.
1.
The court of appeals entered its judgment on
July 17, 2025. A petition for panel rehearing was denied on November 4, 2025, at which time the Court of
Appeals issued an amended opinion. Unless extended,
the time within which to file a petition for a writ of
certiorari would expire on February 2, 2026. The jurisdiction of this Court would be invoked under 28
U.S.C. § 1254(1).
2.
In 2023, Applicant Vikram Valame successfully applied for a paid internship at the Nuclear Regulatory Commission. The Nuclear Regulatory Commission revoked his offer upon learning that he was a
man who had failed to register for the Selective Service. The operative complaint in this case alleges that
the NRC’s action was unlawful for two reasons. First,
the male-only draft violates the Fifth Amendment because the integration of the armed forces has undermined the justifications that supported the draft in
Rostker v. Goldberg, 453 U.S. 57 (1981). Second, the
2020 ratification of the Equal Rights Amendmentwhich guarantees equality of rights between men and
App-109
women-invalidated the draft upon taking effect in
2022. See U.S. CONST. Amend. XXVIII §§1, 3.
3.
The Ninth Circuit erroneously upheld the dismissal of Valame’s claims. The court found that it was
bound by Rostker even though the integration of
women into combat positions has eviscerated its rationale. While vertical stare decisis may have justified
that decision, the lack of substantive defense of Rostker only underscores the need for this Court’s review.
The Ninth Circuit also found the Equal Rights
Amendment invalid due to a purported ratification
deadline imposed by Congress. However, the Constitution gives Congress only the power to propose
amendments and decide whether state conventions or
state legislatures will ratify them. The Ninth Circuit’s
recognition of an implicit deadline-setting power directly contradicts the text of Article V and undermines
an essential check on government power.
4.
Vikram Valame intends to seek this Court’s
review on both the Fifth and Twenty-Eighth Amendment questions. Three Justices of this Court have already recognized the tension between Rostker and
modern military practice. Nat’l Coal. for Men v. Selective Serv. Sys., 141 S. Ct. 1815, 210 L. Ed. 2d 897 (2021)
(statement of Justice Sotomayor, joined by Justice
Breyer and Justice Kavanaugh). Additionally, the
Ninth Circuit’s decision to recognize the ERA deadline
as expiring on June 30th, 1982, directly contradicts
State of Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho
1981), which itself warranted certiorari. Nat’l Org. for
Women, Inc. v. Idaho, 455 U.S. 918, 102 S. Ct. 1272,
71 L. Ed. 2d 458 (1982).
5.
Good cause exists for an extension to prepare
a petition for a writ of certiorari in this case.
App-110
Undersigned applicant is a full-time student at
Georgetown University and faced a significant workload due to final exams in the month of December. Due
to the complex issues presented by this case, including
(i) Department of Defense’s policy surrounding armed
forces integration, (ii) the Ninth Circuit’s decision to
recognize the Congressional deadline extension, and
(iii) this Court’s printing requirements for paid petitions, an extension of time is necessary.
6.
The Applicant has not previously requested
an extension. Applicant respectfully requests that the
time to file a petition for writ of certiorari be extended
35 days, up to and including March 9th, 2026.
January 15, 2026
Respectfully Submitted,
/s/ Vikram Valame
VIKRAM V ALAME
Applicant
3700 O Street NW
Washington, D.C. 20057
408-712-4188
vik.valame@gmail.com
App-111
APPENDIX
Order of the United States Court of Appeals for the
Ninth Circuit Denying Petition for Panel Rehearing,
Granting Publication, and Substituting an Amended
Opinion ..................................................................... 1A
Memorandum Opinion of the District Court Granting
Defendants’ Motion to Dismiss ............................... 6A
App-112
Case: 24-369, 11/04/2025, DktEntry: 48.1
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIKRAM VALAME,
Plaintiff-Appellant,
v.
DONALD J. TRUMP; CRAIG T.
BROWN; JOEL C.
SPANGENBERG; STEVEN L.
KETT; UNITED STATES OF
AMERICA, Selective Service
System; ISMAIL RAMSEY,
Defendants -Appellees.
No. 24-369
D.C. No. 5:23-cv03018-NC
ORDER AND
OPINION
Appeal from the United States District Court
for the Northern District of California
Nathanael M. Cousins, Magistrate Judge, Presiding
Submitted July 15, 2025
Filed November 4, 2025
The parties consented to proceed before a magistrate judge. See
28 U.S.C. § 636(c).
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
App-113
Before: Barry G. Silverman, Richard C. Tallman, and
Patrick J. Bumatay, Circuit Judges.
Order;
Per Curiam Opinion
_________________________________________________
SUMMARY
_________________________________________________
Military Selective Service Act
The panel affirmed the district court’s judgment
dismissing for failure to state a claim an action
brought by Vikram Valame challenging the constitutionality of the Military Selective Service Act
(“MSSA”).
The panel rejected Valame’s allegation that the
MSSA’s requirement that men, but not women, register with the Selective Service System violates his
rights under the Equal Rights Amendment (“ERA”),
which Valame contends was ratified as the TwentyEighth Amendment to the Constitution. The panel
noted that the ERA was not ratified by three-fourths
of the States prior to the deadline set by Congress and
the Archivist of the United States did not publish or
certify the ERA. Therefore, the district court properly
dismissed Valan1e’s claims under the ERA for failure
to state a plausible claim.
The panel held that the district court also properly
dismissed, as foreclosed by binding Supreme Court
This summary constitutes no part of the opinion of the court.
It has been prepared by court staff for the convenience of the
reader.
App-114
precedent, Valame’s Fifth Amendment claims challenging the MSSA’s male-only registration requirement.
_________________________________________________
COUNSEL
Vikram Valame, Pro Se, Palo Alto, California, for
Plaintiff-Appellant.
Michael S. Raab, Thomas G. Pulham, and Simon C.
Brewer, Attorneys, Appellate Staff; Michael J. Gerardi, Senior Trial Counsel, Federal Programs Branch;
Ismail J. Ramsey, United States Attorney, Civil Division; Brian M. Boynton, Principal Deputy Assistant
Attorney General; United States Department of Justice, Washington, D.C.; for Defendants-Appellees.
_________________________________________________
ORDER
The petition (Docket Entry No. 46) for panel rehearing is denied.
The request (Docket Entry No. 47) for publication is
granted.
The memorandum disposition filed on July 17, 2025,
is withdrawn. A replacement opinion will be filed concurrently with this order.
No further petitions for rehearing will be entertained in this closed case.
App-115
OPINION
PERCURIAM:
Vikram Valame appeals pro se from the district
court’s judgment dismissing his action challenging the
constitutionality of the Military Selective Service Act
(“MSSA”). We have jurisdiction under 28 U.S.C. §
1291. We review de novo a dismissal under Fed. R. Civ.
P. 12(b)(6). Wilson v. Lynch, 835 F.3d 1083, 1090 (9th
Cir. 2016). We affirm.
Valame alleges that the MSSA’s requirement that
men, but not women, register with the Selective Service System violates his rights under the Equal Rights
Amendment (“ERA”), which Valame contends was
ratified as the Twenty-Eighth Amendment to the Constitution. However, the ERA was not ratified by threefourths of the States prior to the deadline set by Congress, June 30, 1982, and the Archivist of the United
States did not publish or certify the ERA. See Illinois
v. Ferriera, 60 F.4th 704, 710-13 (D.C. Cir. 2023).
Therefore, the district court properly dismissed
Valame’s claims under the ERA for failure to state a
plausible claim. See Somers v. Apple, Inc., 729 F.3d
953, 959 (9th Cir. 2013) (explaining that dismissal
“under Rule 12(b)(6) is proper when the complaint either (1) lacks a cognizable legal theory or (2) fails to
allege sufficient facts to support a cognizable legal
theory”).
The district court also properly dismissed as foreclosed by binding Supreme Court precedent Valame’s
Fifth Amendment claims challenging the MSSA’s
male-only registration requirement. See Rostker v.
Goldberg, 453 U.S. 57, 83 (1981) (upholding the
MSSA’s gender-based registration requirement
App-116
against a Fifth Amendment challenge); Newman v.
Wengler, 790 F.3d 876, 880 (9th Cir. 2015) (explaining
that ‘‘we do not engage in anticipatory overruling of
Supreme Court precedent”).
All pending motions and requests are denied.
AFFIRMED.
App-117
[Filed: Jan. 20, 2024]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
VIKRAM VALAME,
Plaintiff,
v.
JOSEPH ROBINETTE
BIDEN, et al.,
Defendants.
Case No. 23-cv-03018-NC
ORDER GRANTING
DEFENDANTS’
MOTION TO DISMISS;
DENYING
PLAINTIFF’S MOTION
FOR TEMPORARY
RESTRAINING
ORDER
Re: ECF 30, 38, 39, 57
Plaintiff Vikram Valame alleges the government’s
military draft registration requirements discriminate
against him on the basis of sex. At the core of his argument, Valame contends the States ratified the
Equal Rights Amendment (“ERA”) as the 28th
Amendment to the Constitution. Defendants counter
there is no 28th Amendment and Valame cannot state
a claim for relief. Finding no 28th Amendment at the
end of the Constitution, this Court agrees with Defendants. Accordingly, this Court finds Valame cannot
state a claim for relief and DISMISSES his claims
with prejudice. This Court DENIES Valarne’s motion
for a temporary restraining order on the same
grounds.
I.
BACKGROUND
A. Military Selective Service Act
App-118
Valame challenges the registration provisions of the
Military Selective Service Act, 50 U.S.C. §§ 3801-3820
(“MSSA’’). Generally, the MSSA requires male citizens and residents of the United States between the
ages of 18 and 26 to register with the Selective Service
System (“SSS’’). 50 U.S.C. §§ 3802(a), 3809. Those who
fail to register may face penalties or denial of federal
benefits. See§§ 381 l(a), 381 l(f). Women are not required to register. See 50 U.S.C. § 3802(a). Registrants
must keep SSS informed of their current address. See
32 C.F.R. § 1621.l(a).
B. Factual History
Valame is an 18-year-old male. ECF 51 (“FAC”), ¶
1. He is a US citizen residing within this District. Id.
Under the MSSA, Valame is required to register with
the SSS. See id.; 50 U.S.C. §§ 3802(a), 3809. Valame
“has knowingly and willfully refused to register for
the draft, despite his obligation to do so.” FAC. ¶ 23.
Generally, Valame “does not wish to spend time,
postage money, cellular data, or other limited resources registering for the military draft.” Id. ¶ 20.
Nor will Valame “obey the [change in address] notification requirement.” Id. ¶ 25. According to Valame,
this notification requirement harms him because it
‘‘requires the expenditure of time and money to pay
for communications to the SSS.” Id. ¶ 25.
Valame also states he “suffers serious stigmatic injury from the implicit view that he is expendable and
required to defend his county on an unequal basis
with his fellow citizens.” Id. ¶39. Overall, Valame
claims the MSSA requirements cause him to “suffer[]
frustration and significant anxiety about his role in
society.” Id. ¶ 25.
App-119
Valame claims to experience further harm “because
these provisions deny him job opportunities provided
by the federal government.” Id. ¶ 40 (cleaned up).
These harms form the basis of his motion for a temporary restraining order. See ECF 75 (“TRO”). Valame
states he applied for a summer internship with the
Nuclear Regulatory Commission. TRO at 2. According
to Valame, the NRC tentatively selected him for an
internship, before informing him it would revoke his
offer if he did not register with the SSS. TRO at 2.
Valame asks this Court to restrain Defendants from
“taking adverse employment action against” him.
TRO at 8.
C. Procedural History
Valame filed his complaint pro se on June 20, 2023.
ECF 1. He followed with a motion for summary judgment on September 15, 2023. ECF 30. Defendants
countered on September 29, 2023, with an opposition
to Valame’s motion and cross motion to dismiss. ECF
38. Valame filed his own opposition on October 13,
2023. ECF 39.
After a hearing on the parties’ cross motions,
Valame filed an amended complaint on December 19,
2023. See FAC. Valame brings five claims against Defendants: three for declaratory relief under the Administrative Procedures Act; a Bivens claim; and a
California Bane Act claim. See id. at ¶¶ 52-81. Each
claim relies on Valame’s “constitutional rights under
the 28th Amendment.” See id. at ¶¶ 54, 58, 66, 75, 80.
Valame realleges these same claims with reference to
the 5th Amendment, though he concedes those
App-120
“claims are foreclosed by binding precedent.” 1 Id. ¶
82-83.
Per this Court’s request, the parties also filed supplemental briefing on the issue of standing. 2 ECF 52,
54. Defendants “incorporate[d] all of the arguments
for dismissal contained in their motion to dismiss”
into their supplemental brief. See ECF 54 at 1 n.1.
This Court finds Defendants’ incorporated arguments
sufficiently address Valame’s FAC without need for
further briefing.
Before this Court issued a ruling, Valame moved for
a temporary restraining order. See TRO.
Both parties have consented to magistrate judge jurisdiction. ECF 3, 25.
II. LEGAL ST AND ARD
A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.
2001). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.”‘ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). When reviewing a 12(b)(6) motion, a court
“must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of
the non-moving party.” Retail Prop. Trust v. United
Bd. of Carpenters & Joiners of Am., 768 F.3d 938, 945
1 This Court agrees and DISMISSES with prejudice Valame’s
claims referencing the 5th Amendment.
2 Though this Court thanks the parties for their thoughtful brief-
ing on the issue of standing, it decides this matter on other
grounds and does not reach that issue.
App-121
(9th Cir. 2014). A court, however, need not accept as
true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”
In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th
Cir. 2008). A facially plausible claim “allows the court
to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
If a court grants a motion to dismiss, leave to amend
should be granted unless the pleading could not possibly be cured by the allegation of other facts. Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).
III. DISCUSSION
Valame’s claims depend on the existence of a 28th
Amendment. This Court finds no such amendment in
the Constitution. Defendants convincingly cite to persuasive authority supporting this finding. On the
other hand, Valame has not provided any court authority indicating otherwise. Accordingly, this Court
DISMISSES Valame’s claims. Because it relies on the
same failed legal theory, this Court also DENIES his
TRO.
A. History of the ERA
Though not necessary to our analysis, this Court
quotes a brief history of the ERA:
The Equal Rights Amendment D was introduced in Congress [in 1923]. . . . [B]ut it took
until 1970 for the proposal to make it to the
House Floor. By a vote of 352 to 15, the body
proposed its ratification as the [then]
Twenty-seventh Amendment to the United
States Constitution. Illinois v. Ferriera, 60
F.4th 704, 711-12 (D.C. Cir. 2023). The
App-122
Senate, however, did not take it up and it
lapsed. Two years later, both chambers
passed the resolution proposing the Amendment for ratification and submitted it to the
50 states. Contained within the resolution,
although not the text of the ERA, was a
seven-year deadline within which threequarters of the states, 38 of them, were required to vote affirmatively for the Amendment to be ratified. Id. at 712.
As of 1982 only 35 states had voted to ratify, even though the deadline had been extended by three years. For the next 30 years,
the ERA was presumably considered dead,
but in 2018, Nevada ratified it, followed
quickly by Illinois and Virginia. Id. at 713.
Since then, a battle to accord vitality and validity to the ERA has been fought . . . .
Elizabeth Cady Stanton Tr. v. Neronha, No. 22-cv00245-MSM, 2023 WL 6387874, at *1 (D.R.I. Sept. 8,
2023) (footnotes omitted).
B. Valame Cannot State a Claim Under a
Non-Existent Amendment.
Valame argues a 28th Amendment protects him
against discrimination on the basis of sex. See FAC ¶
12. The Constitution does not agree. Nor does persuasive authority. See, e.g., Ferriera, 60 F.4th at 719.
1. The Constitution Does Not Include a
28th Amendment.
As an initial matter, no 28th Amendment appears
in the Constitution. See generally Constitution.
App-123
Valame does not cite to any court authority finding
otherwise. See generally ECF 30, 39. “The United
States Constitution provides a pathway for adding
new Amendments, and Congress has determined that
the last step on that path is certification and publication by the National Archivist.” Elizabeth Cady Stanton Tr., 2023 WL 6387874, at *7. The Archivist has
not taken those necessary steps. See Ferriera, 60 F.4th
at 713 (recounting how “the Archivist refused to certify and publish the amendment”). This Court finds
the 28th Amendment’s lack of publication convincing
evidence it does not now exist. See id.; see also Constitution (concluding at 27th Amendment).
Beyond the 28 Amendment’s current state of nonbeing, the Ferriera court took up the question of whether
the Archivist owed a duty to bring it to life. Ferriero,
60 F.4th 704. The court walked through the ERA’s storied history, id. at 711-13, and the certification requirements imposed on the Archivist, id. at 713-19. At
bottom, the court concluded the Archivist did not have
a duty to certify and publish the ERA. Id. at 719. This
Court finds Ferriero persuasive. Thus, not only does
the Amendment granting Vala
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