# Petition for Writ of Certiorari — Bowman v. United States (No. 08-1184) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0322%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2009 ## Text Supreme Court, U.S. FILED soeeecneianiidelitellchas 2"? Jn CheOFFice OF THE CLERK Supreme Court of the Gnited States LINDEN D. BOWMAN, Petitioner, ¥, UNITED STATES OF AMERICA AND ROBERT M. GATES, SECRETARY OF DEFENSE OF THE UNITED. STATES OF AMERICA, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit PETITION FOR A WRIT OF CERTIORARI John W. Whitehead Robert T. Lynch Douglas R. McKusick Counsel of Record THE RUTHERFORD INSTITUTE LYNCH LEGAL SERVICES 1440 Sachem Place 2900 Fairmount Boulevard Charlottesville, VA 22961 Cleveland Heights, OH 44118 (434) 978-3888 (216) 771-0999 Counsel for the Petitioner LANTAGNE LEGAL PRINTING 801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477 QUESTIONS PRESENTED In 1993, Congress enacted legislation to encourage members of the armed services to retire early from the military. As an incentive, the legislation allowed early retirees to attain credit for twenty years of military service, and a full military pension, by engaging in employment for “public and community service” organizations. However, the Secretary of Defense adopted a regulation that precluded credit for work for “organizations engaged in religious activities, unless such activities are unrelated to religious instructions, worship services, or any form of proselytization.” This case challenges the validity of that regulation and presents the following questions: Z Is the exclusion of religious organizations invalid as contrary to the intent of Congress in enacting the community service program? 2 Does the exclusion constitute a religion-based classification that violates the guarantee to equal protection embodied in the Due Process Clause of the Fifth Amendment to the United States Constitution? ll PARTIES TO THE PROCEEDINGS The Petitioner, Linden W. Bowman, was the sole Plaintiff-Appellant in the proceedings in the United States Court of Appeals for the Sixth Circuit. The Appellees in the Court of Appeals were the Respondent United States of America and Donald Rumsfeld, Secretary of Defense of the United States of America. Respondent Robert M. Gates, current Secretary of Defense of the United States of America, is substituted for Secretary Rumsfeld pursuant to Fed. R. Civ. P. 25(d). TABLE OF CONTENTS ev syednsnoswseneacesenneetstoasvens i Parties to the Proceedings...... Sea V Epi auae a skass talib wee bontn il I ccc acersssassavansoscccssecnssnevcnssncessavecsess ill ns... cavccesessevavenseoereowssseosceesrceusas Vv Nas va ccenddcassaynbvecaveusardaversesne 1 , 1 Constitutional and Statutory Provisions.................... 1 NINN, OE UNIT CMO oo... soc ccnccessvcseccsccesrscesccccesecscesess 2 Reasons for Granting the Writ..................cc.cccceeeeeeeeeee 9 I. The Exclusion of Employment With Organizations Engaged in Religious Activities is Contraty to the Purpose and Intent of the Legislation Establishing the Community Service aac ucalivaubaievalcnscesnvesesessess 9 Il. The Religious Organizations Activities Exclusion in the Community Service Program Regulation Violates the Fifth Amendment's Guarantee to Equal Protection of the Law ........... 17 lV A. The exclusion is subject to strict scrutiny because it is a classification based upon religion and burdens the exercise of religion .................. 18 B. The exclusion of religious activities from the Community Service Program is not rationally related to any conceivable governmental MIN piaiduxasecssd voss vec eaecencee ease eel ceseuna ero e 25 Oe REEL e TORI REP ERE EE NP NPE T Re TAT 28 Appendix Opinion of the United States Court of Appeals for the Sixth Circuit filed December 18, 2008....1a Order of the United States District Court for the Northern District of Ohio entered TIES BG HN eet idectntlasdasneecucens ceases 25a Pub. L. 102-484, § 4462(a)(1), Codified at Pe Te sei Gl ees aces 56a Pub. L. 102-464, © €6G664..........ciscecceceescsscoess inne 59a Code of Federal Regulations, Title 32, §§ 77.1-77.6 Program to Encourage Public and Community Service..............cccccsssesesceeceresees 62a TABLE OF AUTHORITIES Cases Adarand Constructors v. Pena, ee ee ND sacnd ps cdr cera ekcdavev neces oxcndpnancsdsevenes 17 Bowman v. United States, 512 F. Supp. 2d 1056 Be ace creiy top iexa pavoesn casas exersediceesoews 1.7 Chevron, U.S.A., Inc. v. NRDC, Inc., A irendrncententr incre nkcatccconcsazcqnenses passim City of Cleburne v. Cleburne Living Ctr., re I vserispenic cide sses sssmsseidcsdomesicceeiees 25 Dolfi v. Pontesso, 156 F.3d 696 (6th Cir. 1998)........ 14 General Electric Co. v. Southern Construction Co., Oe © ee BOO COE Cit. TBGT) «0. cccccisesecdeccsosecessscesacess 12 Johnson v. Robinson, 415 U.S. 361 (1974) ...23, 25, 28 Locke v. Davey, 540 U.S. 712 (2004)... 9, 23 McDaniel v. Paty, 435 U.S. 618 (1978)............. passim New Orleans v. Dukes, 427 U.S. 297 (1976) ............. y+ Brome @. Fea, BOE US. 72 CEB) ociiccccccscscscasisesescccens, 25 Richerson v. Jones, 551 F.2d 918, 928 ace Ceca Su he sain cvaun ned naaevoindaekees 12 Scheuer v. Rhodes, 416 U.S. 232 (1974)................008 11 Sherbert v. Verner, 374 U.S. 398 (1963) ...9, 20, 21, 22 United States v. Mead Corp., ee Oe. ee OD ois vccidcssecescacdconccapecnesasedcesves 15, 16 United States v. Shimer, 367 U.S. 374, 382 (1961) ..14 vl Village of Willowbrook v. Olech, 528 U.S. 562 (2000)................ ada uate a tances aaa 18 Statutes I occ ccuvcdannsinenvebesoonssavenessaaioes passim 28 U.S.C. § 1254 (1)...... rai caics sbebusnsbenaadesanearecuvecer eas 1 cy acy tvasjunuivaveevsednaisincnvanacaeanesiin 2 5 caiscsnvsssoveneveneeecvevavscccsnvesesoracsaes 2 so rricsasciuetchedvuxbishenessnesatassesvenseteeses 2 es D0 ssicunsnesénavenseascesateoensscavavnvevaecs 12 CD a... eanecccnsashensedeccassrnesonancescuvanyie 12 RN cass iascnaesesnsancsscavecsencvevscedetessvencens 12 NN SE WE cadevcscccsrervercsecseess ss bases bcaiakebunieauvanidaes 2 Ue Wh IY MG oc cocssccensscecasenessnccncovsccencens 2,18 Pub. L. No. 102-484, § 4462(a)(1)...... cece eee ee a Other Authorities 59 Fed. Reg. 15673 (April 4, 1993)... eee 27 Rules I EN RD oo ns5cnssascevscecses ousvewssveeussevasaves ae Regulations oe Se ve ef Ser dudugteaduenascauensaneens passim I WD ok sc casacnnsssentsvcancvacheccavsscernaes 4,18, 27 yy 0 See ee 2,4 V1 Constitutional Provisions U.S. Const. Amend. I, Establishment Clause 1, 15, 25 ? et CI vc ccuccuuciucscavavccecceiesess passim PETITION FOR WRIT OF CERTIORARI OPINIONS BELOW The opinion of the Court of Appeals for the Sixth Circuit is unreported and is set forth in Appendix at la-24a. The order and opinion of the United States District Court for the Northern District of Ohio denying the government’s motion to dismiss under Fed. R. Civ. P. 12(b)(1) and granting the government’s motion to dismiss under Fed. R. Civ. P. 12(b)(6)) is reported as Bowman v. United States, 512 F. Supp. 2d 1056 (N.D. Ohio 2007), and is set forth in the Appendix at 25a-55a. STATEMENT OF JURISDICTION The judgment and opinion of the United States Court of Appeals for the Sixth Circuit, which is the subject of the instant petition, was entered on December 18, 2008. This Court has jurisdiction to review the judgment below under 28 U.S.C. § 1254 (1). CONSTITUTIONAL AND STATUTORY PROVISIONS The First Amendment to the United States Constitution provides, in relevant part: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof].] The Fifth Amendment to the United States Constitution provides, in relevant parts: No person shall be held to answer for a capital, or otherwise infamous offense, unless on a presentment or indictment of a grand jury, .. .; nor be deprived of life, liberty, or property, without due process of law[.] The provisions of Pub. L. 102-484, §§ 4462(a)(1) and 4464, codified at 10 U.S.C. § 1143a, are set forth in the Appendix beginning at 56a. The provisions of 32 C.F.R. §§ 77.1-77.6, are set forth in the Appendix beginning at 62a. STATEMENT OF THE CASE This case is a civil action seeking declaratory and injunctive relief brought by the Petitioner, Linden Bowman, against the Respondents, United States of America and the Secretary of Defense, that was filed in the United States District Court for the Northern District of Ohio. That Court had jurisdiction over this action under 28 U.S.C. §§ 1331, 1346(a)(2), 1361, and 5 U.S.C. § 702 The complaint set forth claims against the United States of America and then-Secretary of Defense Donald Rumsfeld arising out of the implementation of a program’ established by Congress in 1993 to “encourage members and former members of the armed forces to enter into public and community service jobs after discharge or release from active duty.” Pub. L. No. 102-484, § 4462(a)(1), 106 Stat. 2702, 2741 (1992). The . legislation establishing the Community Service Program is codified at 10 U.S.C.§ 1143a (56a-58a). Part of the legislation provided that service members who retired before they achieved 20 years of service could perform community service after their retirement from the military and have years of community service employment credited toward their years of military service for purposes of calculating the service member’s military pension (First Amended Complaint, pgs. 2-3). The legislation establishing this Community Service Program defines “public service and community service organizations” as organizations providing school services and administration, law enforcement, public health care, social services, and “any other public or community service.” 10 U.S.C. § 1148a(g) (58a). The legislation also instructed the Secretary of Defense to implement the program to encourage former members of the armed services to enter into public and community service jobs. 10 U.S.C. § 1143a(a). Pursuant to this direction, the Secretary of Defense promulgated regulations for the Community Service Program, which are set forth at 32 C.F.R. §§ 77.1-77.6 (62a-70a). Under the regulations, creditable community service employment includes work for organizations that provide “social services” and other public and community service consistent with the kind of work otherwise identified in the regulations. 32 C.F.R. § 77.3(d) (5) and (12). However, the regulations also specifically prohibit giving retired service members credit toward retirement for employment with “organizations engaged in religious activities, unless such activities are unrelated to religious instructions, worship services, or any form of proselytization.” 32 C.F.R. § 77.3(a) (63a). This exclusion of work for religious organizations applies, even though the work a retired service member performs constitutes social services or otherwise constitutes “public and community service” as defined in 10 U.S.C. § 1143a(g) and 32 C.F.R. § 77.3(d). From September 1977 until January 1996, Petitioner Bowman served in the United States Air Force, achieving a final rank of Technical Sergeant (First Amended Complaint, pg. 5). Upon retirement from the Air Force in January 1996, Bowman accepted employment with the People’s Church of C & MA in Geneva, Ohio. The complaint alleged that this employment constituted “public and community service” as defined in 10 U.S.C. § 1148a(g) and 32 C.F.R. § 77.3(d), and was otherwise performed at a time which would qualify the employment for credit in computing his military retirement under the Community Service Program (First Amended Complaint, pgs. 5-6). Bowman submitted to the Department of Defense a Validation of Public or Community Service Employment form respecting his employment with the People’s Church of C & MA in the latter part of 1998, seeking credit for that employment under the Community Service Program. However, Bowman never received any response to this application (First Amended Complaint, pg. 6). On or about November 2002, Bowman submitted another Validation of Public. or Community Service Employment form to _ the Director, Defense Manpower Data Center (hereafter DMDC), in Fort Ord, California. Bowman never received any response from the DMDC respecting his request for credit for creditable service under the Community Service Program (First Amended Complaint, pg. 6). In October 2004, Bowman, with the assistance of an attorney, again submitted the Validation of Public or Community’ Service Employment form to the DMDC, requesting a response about the status of the application and asking whether the inaction on the application should be considered a denial. Neither Bowman nor his attorney who wrote the letter received a response to his letter (First Amended Complaint, pgs. 6-7) Bowman’s complaint alleged that the reason his request for creditable service under the Community Service Program was neithér granted nor processed is that the work shown on his Validation of Public or Community Service Employment form is religious in nature (First Amended Complaint, pg. 7). Bowman also alleged that but for the provisions of 32 C.F.R. § 77.3(a) excluding employment with “organizations engaged in religious activities” from the Community Service Program, Bowman would be entitled to and granted credit toward his military retirement benefits for the years of employment with People’s Church of C & MA (First Amended Complaint, pg. 7). Such credit would result in Bowman receiving, upon reaching the age of 62, 50 percent of his base military pay as opposed to 42 percent of that pay without that credit (First Amended Complaint, pgs. 7-8). The complaint went on to allege as follows: 31. The exclusion of employment with organizations engaged in religious activities from qualification for creditable early retirement public or community service employment under the Community Service Program is facially violative of the guarantee to equal protection of the law of the Fifth Amendment to the United States Constitution. 32. The exclusion of employment with organizations engaged in religious activities from qualification for creditable early retirement public or community service employment under the Community Service Program is violative of the guarantee to equal protection of the law of the Fifth Amendment to the United States Constitution as applied to the Plaintiff. 33. The exclusion contained in 32 C.F.R. § 77.3(a) of employment with organizations engaged in_ religious activities from qualification for creditable early retirement public or community service employment under the Community Service Program is not authorized by the provisions of 10 J.S.C. § 1143a(g) and is contrary to the purpose and intent of Congress in enabling the Defendant Secretary of Defense to promulgate regulations encouraging community service by early retirees from the armed services. (First Amended Complaint, pg. 8). In response to the Complaint, the Defendants filed a motion to dismiss the Complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(1) and (6). The District Court granted the Defendants’ motion to dismiss the Amended Complaint for failure to state a claim, Bowman v. United States, 512 F. Supp. 2d 1056 (N.D. Ohio 2007) (54a-55a), and Bowman timely appealed. On appeal, the Court of Appeals for the Sixth Circuit affirmed. That Court first held that the exclusion set forth in 32 C.F.R. § 77.3(a) of employment with organizations engaged in religious activities is not inconsistent with the enabling legislation, 10 U.S.C. § 1143a. Although recognizing that the enabling legislation does not mention an exclusion of religious organizations (9a), the Court determined that the enabling legislation gave the Secretary “broad discretion to adopt eligibility criteria” for the Community Service Program, and so the Secretary’s decision to include the exclusion should be granted deference (10a-lla). Because “{fnlothing in the legislative history suggests that Congress intended to encourage retirees to accept positions which would involve “religious instructions, worship or proselytization” and “nothing in the text of the statute itself suggests that Congress intended to benefit this kind of activity,” the Court concluded that the Secretary’s decision to include the exclusion should be upheld (13a). The Court of Appeals also determined that the exclusion did not violate Bowman’s right to equal protection of the law as guaranteed by the Fifth Amendment. It first found that the exclusion was not subject to strict judicial scrutiny because Bowman had “not shown that his fundamental right to free exercise of religion had been violated.” (19a). The Court held that this Court’s ruling in McDaniel v. Paty, 435 U.S. 618 (1978), applying strict scrutiny to a state law disqualifying clergy from participating in state constitutional conventions was not apposite because McDaniel involved a clergyman’s “right to participate in the political affairs of the community.” (15a). It also held that this Court’s rulings applying strict scrutiny to denials of public benefits to persons because of the person’s religious beliefs, see, e.g., Sherbert v. Verner, 374 U.S. 398 (1963), were not apposite because “any loss of an incremental ircrease in his retirement pay burdened him much less than losing unemployment compensation altogether.” (17a). Instead, the Court of Appeals determined that this case was controlled by Locke v. Davey, 540 U.S. 712 (2004), in that the Secretary’s regulations merely evinced a decision not to fund a category of public service work. It reasoned that “[t]he breadth of the exclusion suggests that the Secretary was not discriminating along religious lines.” (19a). Applying “rational basis” scrutiny, the Court of Appeals upheld the Secretary’s exclusion. It accepted the government’s argument that the exclusion was “necessary to comport with Congressional intent to limit community service credit to those serving in education, law enforcement, and public health.” (23a). REASONS FOR GRANTING THE WRIT I. THE EXCLUSION OF EMPLOYMENT WITH ORGANIZATIONS ENGAGED IN RELIGIOUS ACTIVITIES IS CONTRARY TO THE PURPOSE AND INTENT OF THE LEGISLATION ESTABLISHING THE COMMUNITY SERVICE PROGRAM. The Community Service Program under which Bowman seeks credit toward his military service in determining his retirement benefits was authorized by Congress when it enacted 10 U.S.C. § 1143a(g). The authorizing legislation unambiguously defines “public service and community service organizations” as follows: (1) Any organization that provides the following services: (A) Elementary, secondary, or postsecondary school teaching or administration. (B) Support of such teaching or schoo] administration. (C) Law enforcement. (D) Public health care. (E) Social services. (F) Any other’ public or community service. (2) Any nonprofit organization that coordinates the provision of services described in paragraph (1). 10 U.S.C. § 1143a(g). Congress included no language excluding work for religious organizations and institutions in determining what post-retirement employment should be eligible as creditable service. When reviewing the authority to promulgate a regulation, “[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously 11 expressed intent of Congress.” Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842-843 (1984). The provisions of 32 C.F.R. § 77.3(a), which prohibit giving retired service members credit toward retirement for employment with “organizations engaged in religious activities, unless such activities are unrelated to religious instructions, worship services, or any form of proselytization,” clearly is not authorized by the legislation. Indeed, the exclusion disqualifies work, such as that performed by Bowman in his capacity as a youth pastor, that constitutes “social services” and “public. or community service” that is specifically within the ambit of qualifying work under the plain terms of 10 U.S.C. § 1143a(g).! The exclusion fails to give effect to the plain terms used by Congress and must be found to be manifestly contrary to the statute. That the exclusion is contrary to the intent of Congress is supported by the fact that where 1 The Amended Complaint specifically alleged that Bowman’s work as a youth pastor constituted “public and community service” within the meaning of 10 U.S.C. § 1143a(g) (First Amended Complaint, pg. 6). See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader). 12 Congress has intended to impose such a restriction or exclusion, it has done so explicitly. See, eg., 42 U.S.C. § 300x-65(i) (“[n]o funds provided through a grant or contract to a religious organization to provide services under any substance abuse program under this title or title V shall be expended for sectarian worship, instruction, or proselytization.”), 29 U.S.C. § 2938(a)(3) (“[plarticipants shall not be employed under this title to carry out the construction, operation, or maintenance of any part of any facility that is used or to be used for sectarian instruction or as a place for religious worship”), and 42 U.S.C. § 9920(c) (“[nlo funds provided directly to a religious organization to provide assistance under any program described in subsection (a) shall be expended for sectarian worship, instruction, or proselytization.”). This serves only to emphasize that when Congress intended such a restriction to exist, it expressly imposed or authorized the restriction. Although the Court of Appeals wrote that “too much should not be made of Congressional silence,” (10a), “where a statute with respect to one subject contains a given provision, the omission of such provision from a similar statute is significant to show a different intention existed.” Richerson v. Jones, 551 F.2d 918, 928 (3d Cir. 1977) (quoting General Electric Co. v. Southern Construction Co., 383 F.2d 135, 138 n. 4 (5th Cir. 1967)). The absence of a religious organization restriction from 10 U.S.C. § 1143a(g) speaks volumes in this case. 13 In upholding the exclusion as authorized and consistent with 10 U.S.C. § 1143a, the Court of Appeals repeatedly cited to the “broad power” (8a) and “broad discretion” (10a) granted by the legislation to the Secretary of Defense to determine what organizations qualify under the community service program. But one must search in vain for any language in 10 U.S.C. § 1148a granting broad discretion or power to the Secretary. Indeed, the statute provides simply that the Secretary “shall implement a program to encourage” service members to enter into community service. The section of the legislation defining “public service and community service organizations,” 10 U.S.C. § 1143a(g), does not contain any additional language authorizing the Secretary to limit or define the organizations that qualify under the program. To the extent the Court of Appeals determined that it must assume such “broad discretion” because of this Court’s decision in Chevron, U.S.A. v. NRDC, Inc., supra, regarding the deference courts are to afford agencies in the interpretation of statutes, it also plainly erred. The deference required under Chevron is inapplicable when the agency action does not involve the exercise of any agency expertise in the implementation of stated Congressional policy. Thus, this Court pointed out that the principle of deference to administrative interpretations “has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. See, e g., National Broadcasting Co. v. United States, 319 U.S. 190; Labor Board v. Hearst Publications, Inc., 322 U.S. 111; Republic Aviation Corp. v. Labor Board, 324 U.S. 793; Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194; Labor Board v. Seven-Up Bottling Co., 344 U.S. 344. Chevron, U.S.A., Inc., 467 U.S. at 844-45 (quoting United States v. Shimer, 367 U.S. 374, 382, 383 (1961)) (emphasis added). “The special deference required by Chevron is based on the expertise of an administrative agency in a complex field of regulation with nuances perhaps unfamiliar to the federal courts.” Dolfi v. Pontesso, 156 F.3d 696, 700 (6th Cir. 1998). While the Secretary of Defense certainly has special knowledge relating to the execution of military operations and the administration and operation of the armed services, there is nothing to support the idea that the Secretary or the Department of Defense has any particular expertise in public service organizations, which organizations provide social, public or community service, or what areas of community service need _ particular assistance. Indeed, it is evident that the exclusion of religious organizations was included not because of the conclusion that religious organizations do not provide “public or community service” but because of the mistaken conclusion that the exclusion was required by the Establishment Clause.? Moreover, judicial deference to the regulation promulgated by the Secretary is not warranted under Chevron because the legislation at issue here did not leave it to the Secretary to fill gaps or elucidate general standards. In United States v. Mead Corp., 533 U.S. 218 (2001), this Court made clear that not all administrative actions are entitled to the deference articulated in Chevron, but the degree of deference varies with the circumstances of each case. Mead Corp. held that “administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Id. at 226-27. Such authority is generally found when the agency acts through notice-and-comment rulemaking or adjudication. “It is fair to assume . . . that *In the District Court, the Respondents argued only that the purpose of the exclusion was to avoid Establishment Clause problems, but conceded on appeal that the exclusion was not required by the Establishment Clause. Congress contemplates administrative action with the effect of law when it provides for relatively formal administrative procedure[.]” Mead Corp., 533 U.S. at 230. The regulation at issue here did not result from any formalized administrative process, nor was it the result of Congressional legislation delegating to the Secretary of Defense the task of “filling gaps” left by the legislation. The community service program legislation simply instructed the Secretary of Defense to “implement” the program, 10 U.S.C. § 1143a(a), and defined the characteristics of “public service and community service organizations.” 10 U.S.C. § 1143a(g). Congress did not instruct the Secretary to implement the program through rulemaking or adjudication, nor was it actually implemented through those processes. Thus, this is not a case where Congress intended any regulations of the Secretary to “speak with the force of law,” Mead Corp., 533 U.S. at 229, such that Chevron-type deference is required. Congress clearly meant for the program to be broadly available for public or community service work because 10 U.S.C. § 1143a(g) lists not only “teaching,” “[llaw enforcement,” and “[p]ublic health care,” but also “[slocial services” and “la]ny other public or community service” as the kind of services an organization may provide in order to qualify under the Community Service Program. The exclusion of religious organizations set forth in 32 C.F.R. § 77.3(a) is unnecessary and not even hinted at by any provision of the legislation. It is contrary to the plain intention of the enabling legislation not to allow persons retiring from the military credit for all “community” or “social services” performed within the established time limits after leaving the military. Therefore, the judgment of the Court of Appeals upholding the regulation should be reversed. IT. THE RELIGIOUS ORGANIZATIONS ACTITIVITIES EXCLUSION IN THE COMMUNITY SERVICE PROGRAM REGULATION VIOLATES THE FIFTH AMENDMENT’S GUARANTEE TO EQUAL PROTECTION OF THE LAW. The exclusion contained in 32 C.F.R. § 77.3(a) prohibiting Bowman and other retired service members from receiving credit toward retirement for employment with “organizations engaged in religious activities, unless such activities are unrelated to religious instructions, worship services, or any form of proselytization” establishes a classification that is subject to scrutiny under the guarantee to equal protection of the law contained in the Fifth Amendment. See Adarand Constructors v. Pena, 515 U.S. 200, 217 (1995) (Fifth Amendment’s Due Process Clause embodies equal _ protection guarantee equivalent to the Fourteenth Amendment’s Equal Protection Clause). Bowman’s allegations in the Amended Complaint set forth facts showing that the exclusion treats similarly situated persons differently and that such disparate treatment is not justified. Village of Willowbrook v. Olech, 528 U.S. 562, 564-65 (2000). The Court of Appeals determined that the classification set up by the exclusion does not violate the Fifth Amendment’s guarantee, ruling (1) that the classification was not subject to strict scrutiny even though it is based upon religion (2la), and (2) the distinction drawn survives rational] basis scrutiny because the exclusion is “necessary to comport with Congressional intent to limit community service credit to those serving in education, law enforcement and public health” (23a). Each of these rulings is erroneous and requires that the judgment below be reversed. A. The exclusion is subject to _ strict scrutiny because it is a classification based upon religion and _ burdens the exercise of religion. Bowman alleged in his Amended Complaint that the work he performed as a youth pastor at the People’s Church of C & MA between January 1996 and February 2001 constituted public and community service of the kind described in 10 U.S.C. § 11438a(g) and 32 C.F.R. § 77.3(d) (First Amended Complaint, pg. 6). The legislation (Pub. L. 102-484, § 4464 and 10 U.S.C. § 1043) and regulations allow military retirees to obtain credit for work for organizations that provide “social services” and other public and community service consistent with the kind of work otherwise identified in the regulations. 19 32 C.F.R. § 77.3(d)(5) and (12). It was only because Bowman’s work was for a religious organization and had a religious component to it that he is not eligible for the benefit granted to other retirees under the Community Service Program (First Amended Complaint, pg. 7). Where a classification affecting the eligibility for benefits is based upon religion, the classification burdens the exercise of religion and is subject to strict scrutiny in an equal protection challenge. Thus, in McDaniel v. Paty, 435 U.S. 618 (1978), this Court unanimously struck down a Tennessee statute that disqualified clergymen from participation in state constitutional conventions, writing as follows: [Tlhe right to the free exercise of religion unquestionably encompasses the right to preach, proselyte, and perform other —_ similar religious functions, or, in other words, to be a minister of the type McDaniel wes found to be. Murdock v. Pennsylvania, 319 U.S. 105 (1943); Cantwell uv. Connecticut, 310 U.S. 296 (1940). Tennessee also acknowledges the right of its adult citizens generally to seek and hold office as_ legislators or delegates to the state constitutional convention. ... Yet under the clergy- disqualification provision, McDaniel cannot exercise both rights simultaneously because the State has 20 conditioned the exercise of one on the surrender of the other. Or, in James Madison’s words, the State is “punishing a religious profession with the privation of a civil right.” 5 Writings of James Madison, supra, at 288. In so doing, Tennessee has encroached upon McDaniel’s right to the free exercise of religion. “[To] condition the availability of benefits [including access to the ballot] upon this appellant’s willingness to violate a cardinal principle of [his] religious faith [by surrendering his religiously impelled ministry] effectively penalizes the free exercise of [his] constitutional liberties.” Sherbert uv. Verner, 374 U.S. 398, 406 (1963). McDaniel, 435 U.S. at 626. In a concurring opinion, Justice Brennan wrote that the law _ established a_ religious classification that was absolutely prohibited and that “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits.” Jd. at 639 (Brennan, J., concurring). The exclusion at issue here makes precisely the kind of religious classification that was found to burden the free exercise of religion in McDaniel. Under equal protection jurisprudence, strict scrutiny applies where a classification trammels fundamental 21 personal rights or is drawn upon inherently suspect distinctions such as race or religion. New Orleans v. Dukes, 427 U.S. 297, 303 (1976). See also Employment Div. v. Smith, 494 U.S. 872, 886 n. 3 (1990) (courts are required to strictly scrutinize governmental classifications based on religion). The Court of Appeals should have applied strict scrutiny and demanded that the Defendants identify a compelling interest justifying the exclusion. Instead, the lower courts’ distinguished McDaniel, indicating that the principle enunciated there applies only where a religious classification affects a person’s right to participate in the political affairs of the community (15a, 45a). But McDaniel is not so limited; both the plurality opinion and Justice Brennan’s concurrence in McDaniel indicated that religion cannot be the basis for a classification affecting the receipt of government benefits (except where there is some compelling government interest supporting the classification). Indeed, the McDaniel plurality cited Sherbert v. Verner, supra, which held that a denial of unemployment benefits to a person because her religious beliefs prevented her from working on Saturdays constituted a burden on the exercise of religion that must be supported by a compelling interest in order to survive a legal challenge. This Court rejected the state’s defense that the ability to collect unemployment is a privilege, not a right, writing that “[i]t is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.” 22 Sherbert, 374 U.S. at 404. Thus, the fundamental right to free exercise is burdened where religion is the basis for a classification affecting the receipt of benefits. The Court of Appeals also distinguished Sherbert, asserting that “any loss of an incremental increase in his retirement pay burdened him much less than losing unemployment compensation altogether” (17a). But it cited no support for the idea that the protections of the Fifth Amendment against facially discriminatory classification traditionally subject to strict scrutiny are triggered only by discrimination with “severe” economic consequences. Moreover, the Court had no grounds for concluding that the actual loss Bowman will suffer from his retirement pay, which he is to receive for the remainder of his lifetime once he reaches age 62, would be marginal. The lower court also erred in ruling that Bowman was not put to the choice between exercising his religious beliefs and receiving a government benefit. His beliefs led him to choose the ministry, and by doing so he forfeited any chance of receiving public and community service credit toward his retirement. See Sherbert, 374 U.S. at 405 (conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms). Again, McDaniel, 435 U.S. at 626 (quoting Sherbert, 374 U.S. at 406), pointed out that conditioning a benefit on a person’s “willingness to 23 violate a cardinal principle of [his] religious faith [by surrendering his religiously impelled ministry] effectively penalizes the free exercise of [his] constitutional liberties.” Indeed, the concurring opinion authored by Justice Brennan and joined by Justice Marshall stressed that “Tennessee’s political exclusion [cannot] be distinguished from the Sherbert’s welfare disqualification[.]” McDaniel, 435 U.S. at 634 (Brennan, J., concurring). The courts below also placed great reliance upon Locke v. Davey, 540 U.S. 712 (2004), but Locke is distinguishable on numerous grounds. In that case, this Court found that the state scholarship program at issue was not sufficiently hostile to religion because it did not require persons to choose between their religious beliefs and receiving a government benefit. Jd. at 720-21. As pointed out above, a classification requiring one to forego the ministry as a condition of receiving a government benefit does compel such a choice. Additionally, this is not a case where the program “goes a long way toward including religion in its benefits.” Locke, 540 U.S. at 724. Under the regulation at issue, any work for an organization that engages in religious instruction, religious services or proselytization is disqualified. Thus, this case is unlike Locke, where the program was sufficiently neutral toward religion. The Court of Appeals’ reliance on Johnson v. Robinson, 415 U.S. 361 (1974), to sustain the exclusion also is_ misplaced. Johnson upheld legislation that did not extend veteran educational 24 benefits to conscientious objectors who performed alternative service during wartime. This Court found that the classification was not subject to strict scrutiny because the legislation did not evinec an intention to exclude persons on the basis of religion. Johnson, 415 U.S. at 385. By contrast, the regulation at issue here specifically bases the exclusion on religion and so clearly intentionally discriminates on the basis of religion. Moreover, Johnson found no constitutional problem with denying benefits to conscientious objectors because of the government’s “substantial interest” in raising and supporting armies justified the burden on conscientious objectors religious rights. Jd. As discussed, infra, there is no similar substantial interest justifying the exclusion set forth in 32 C.F.R. § 77.3(a). Under 32 C.F.R. § 77.3(a), employment in the service of a religious organization is disqualified from eligibility in the Community Service Program, even though that employment otherwise constitutes public or community service. This classification on the basis of religion is inherently suspect and subject to strict scrutiny. The lower courts’ failure to apply strict scrutiny and require the Defendants to articulate a compelling interest for the exclusion was error requiring reversal of the judgment below. For the reasons discussed infra, the exclusion must be found to fail strict scrutiny because the sole basis for the exclusion articulated by the Defendants does not survive even rational basis scrutiny. The Defendants abandoned any claim that the exclusion 25 was required to comport with the Establishment Clause. B. The exclusion of religious activities from the Community Service Program _is_ not rationally related to any conceivable governmental purpose. Even if the classification made by 32 C.F.R. § 77.3(a) is judged under the rational basis standard test of equal protection, the Defendants’ request that Bowman’s claim be dismissed still must fail. Although the government is generally allowed to make classifications of persons, the constitutional guaraniee to equal protection denies the government “the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).” Johnson, 415 U.S. 374-375 (quoting Reed v. Reed, 404 U.S. 71, 75-76 (1971)). The government may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985). 26 The Defendants and Court of Appeals articulated a single justification for the exclusion of religion-related employment from the Community Service Program; because Congress intended to limit public and community service credit to persons serving in education, law enforcement and public health, the exclusion was necessary to comport with this legislative intent (23a). However, the plain terms of 10 U.S.C. § 1043a refute the idea that Congress limited retirement credit eligibility to work for education, law enforcement, and health care _ organizations. Congress specifically defined “public and community service organizations” as including, in addition to the categories listed by the Defendants, organizations providing “social services” and “any other public or community service.” 10 U.S.C. § 1043a(g)(1) (E) and (F). Congress clearly meant for the program to be broadly available for public or community service work because 10 U.S.C. § 1143a(g) lists not only “teaching,” “(llaw enforcement,” and “[p]Jublic health care,” but also “[slocial services” and “[a]lny other public or community service” as the kind of services an organization may provide in order to qualify under the Community Service Program. If anything, the statutory language demonstrates that the scope of qualifying organizations was intended to be broader than simply those involved in education, health care, and law enforcement. Moreover, the Defendants’ contention that the regulation reflects the supposed Congressional intent 27 to limit the Community Service Program to so-called “critical need” organizations is similarly refuted by the terms of the regulation. Eligible organizations under 32 C.F.R. § 77.3(d) include not only those providing education, law enforcement, and health care, but also include “social services,” “public safety,” “emergency relief,” “public housing,” “conservation,” “environment,” “job training,” and “other public and community service . . ., consistent with or related to services described in paragraphs (d)(1) through (11) of this section.” Jd., § 77.3(d) (5)- (12). The Secretary of Defense’s actual regulation clearly reflects an understanding of the scope of 10 U.S.C. § 1043a that is far broader than the limited scope now professed as a justification for the religious organization exclusion. The Defendants’ arguments concerning Congressional] intent appear disingenuous, given the fact that the actual scope of the regulation does not coincide with the supposed legislative intent to limit the program to education, law enforcement, and health care organizations. See also 59 Fed. Reg. 15673 (April 4, 1993) (noting in the notice of proposed rulemaking that the purpose of community service registry is “to encourage separating Service members to enter into public and community service job vacancies, such as in education, conservation, environmental protection, law enforcement, and public health care after separation from active duty) (emphasis added). 28 The guarantee to equal protection requires that when a law or regulation singles out a particular class for different treatment, there must be some real distinction justifying the different treatment. Johnson, 415 U.S. at 374-375. Simply because Bowman worked for a religious organization in a religious capacity is no basis for the conclusion that his service was distinguishable in any relevant respect from other social, public, and community service that qualifies for credit under the Community Service Program. Therefore, the exclusion is irrational and should be struck down. CONCLUSION For the reasons set forth above, the Petitioner, Linden S. Bowman, respectfully requests that the instant Petition be granted and that the judgment of the Court of Appeals be reversed. Respectfully submitted, Robert T. Lynch LYNCH LEGAL SERVICES 2900 Fairmount Boulevard Cleveland Heights, OH 44118 (216) 771-0999 Counsel of Record for the Petitioner Participating Attorney On Behalf of The Rutherford Institute 29 John W. Whitehead Douglas R. McKusick THE RUTHERFORD INSTITUTE 1440 Sachem Place Charlottesville, VA 22901 Counsel for the Petitioner No. 08- In The Supreme Court of the Gunited States LINDEN D. BOWMAN, Petitioner, V — UNITED STATES OF AMERICA AND ROBERT M. GATES, SECRETARY OF DEFENSE OF THE UNITED STATES OF AMERICA, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit APPENDIX John W. Whitehead Robert T. Lynch Douglas R. McKusick Counsel of Record THE RUTHERFORD INSTITUTE LYNCH LEGAL SERVICES 1440 Sachem Place 2900 Fairmount Boulevard Charlottesville, VA 22901 Cleveland Heights, OH 44118 (434) 978-3888 (216) 771-0999 Counsel for the Petitioner LANTAGNE LEGAL PRINTING 801 East Main Street Surte 100 Richmond, Virginia 23219 (800) 847-0477 la NOT RECOMMENDED FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 07-4322 FILED DEC 18 2008 LEONARD GREEN, LINDEN BOWMAN, ) ) ) v. ) CLERK ) ) ) Plaintiff-Appellant, UNITED STATES, Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO BEFORE: GIBBONS and COOK, Circuit Judges; and STEEH, District Judge.” GEORGE CARAM STEEH District Judge. This lawsuit arises from plaintiff Linden Bowman's early retirement from the United States Air Force and his failed attempt to participate in a program that would allow him to have community service work count toward his years of service needed to obtain a full twenty-year military retirement. The Secretary of Defense failed to process his request for military service credit for his work as a youth " The Honorable George Carem Steeh, United States District Judge for the Eastern Distnct of Michigan, sitting by designation. 2a minister on grounds that the regulations specifically prohibit credit for employment with “religious organizations engaged in religious activities, unless such activities are unrelated to religious instruction, worship services, or any form of proselytization.” Bowman claims the regulation violates the express language of the enabling legislation and is unconstitutional on its face and as applied to him in violation of his Fifth Amendment Equal Protection rights. The district court dismissed his complaint for failure to state a claim. Bowman now appeals that dismissal.! Because we find the regulation is consistent with the enabling statute and does not violate Bowman's equal protection rights, we AFFIRM. BACKGROUND Bowman served in the United States Air Force from September, 1977 until January, 1996, when he took an early retirement as part of a reduction in force. Bowman received a final rank of Technical Sergeant. Because Bowman was just a few years shy of the twenty-years required for a full retirement, he was eligible to participate in a program (“Program”) allowing him to perform community service that would be counted toward his years of military service for retirement. The Program was provided by the 1 Two amicus briefs have been filed. Americans United for Separation of Church and State (AUSCS) has filed an amicus brief in support of the government. The National Legal Foundation (NLF) has filed an amicus brief in support of Bowman. National Defense Authorization Act for Fiscal Year 1993 which directed the Secretary of Defense to “implement a program to encourage members and former members of the armed forces to enter into public and community service jobs after discharge or release from active duty.” See Pub.L. No. 102-484, § 4462(a)(1), 106 Stat. 2702, 2741 (1992), codified at10 U.S.C. § 1143a (“Statute”). Section 1143a is entitled “Encouragement of postseparation public and community service.” The Statute defines “public service organizations” as organizations providing school services and education administration, law enforcement, public health care, social services and “{alny other public or community service.”10 U.S.C § 1143a(g). The Secretary of Defense promulgated regulations for the Community Service Program. 32 C.F.R. §§ 77.1-77.6. The Program authorized service members who retired from active duty with at least 15 but fewer than 20 years of service to accrue additional retirement credit for work in a qualified public or community service organization. 32 C.F.R. § 77.3(c). The regulations permit qualified former military personnel to accrue additional service credit for retirement through employment with “public or community service organization(s] that provide the services listed in sections 77.3(d)(1) through (d)(12).” 32 C.F.R. § 77.4(b)(2). Section 77.3(d) paints with a 2 Section 1143a is a section of the Defense Conversion, Reinvestment, and Transition Assistance Act of 1992 (the “Act”), which was Division D of the National Defense Authorization Act for Fiscal Year 1993.Pub.L. 102-484 4a very broad brush the types of public and community service organizations for which retirement credit is allowed: (d) Public and community service organization. Government or private organizations that provide or coordinate the provision of the following services|[:] (1) Elementary, secondary, or post secondary school teaching or administration. (2) Support of teachers or schoo] administrators. (3) Law enforcement. (4) Public health care. (5) Social services. (6) Public safety. (7) Emergency relief. (8) Public housing. (9) Conservation. (10) Environment. (11) Job training. (12) Other public and community service not listed previously, but consistent with or related to services described in paragraphs (d)(1) through (11) of this section. 32 C.F.R. § 77.3(d)(1)-(12). The regulations bar credit toward retirement for employment with “organizations engaged in religious activities, unless such activities are unrelated to religious instructions, worship services, or any form of proselytization.”32 C.F.R. § 77.3(a). The regulations also exclude “businesses organized for profit, labor unions, [and] partisan political organizations.” Id. 5a At the time of his retirement, Bowman had 17 years and three months of service in the Air Force. After retiring from the Air Force, Bowman began employment with the People's Church of C & MA (“Church”) in Geneva, Ohio, first as a lay intern, and later as a youth minister. He does not dispute that his duties included religious instructions, worship services, or proselytization. The complaint does not elaborate on what his duties were either as a lay intern or as a youth minister. Bowman was employed with the Church continuously from his retirement until February, 2001. Bowman contends that this employment should be counted toward his years of service so that he is entitled to a full retirement. According to his complaint, if he were granted the retirement credit for his work as a youth minister, he would be entitled to receive 50 percent of his base military pay upon reaching the age of 62, as opposed to receiving only 42 percent of his base military pay. The complaint does not quantify the money difference. Bowman alleges that he filed for military service credit under the Program “late in the year 1998,” again in November, 2002, and again in October, 2004, this time with the assistance of counsel, by submitting a Validation of Public or Community Service Employment Form to _ the Defense Manpower Data Center. Neither plaintiff nor his counsel has ever received a response. Plaintiff alleges that his request for creditable service has not been granted or even processed because the form shows that his employment was with a religious 6a organization. Bowman alleges that the exclusion of employment with organizations engaged in religious activities from qualification for creditable early retirement under the Program conflicts with the broadly drafted enabling legislation, 10 U.S.C. § 1143a, and is unconstitutional on its face and as applied to him in violation of his Fifth Amendment Equal Protection rights. ANALYSIS A. Standard of Review Whether or not a district court properly dismissed a complaint for failure to state a claim under Rule 12(b)(6) is subject to de novo review. Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir.2007). Under the Supreme Court's recent articulation of the Rule 12(b)(6) standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65 (2007), the Court must construe the complaint in favor of the plaintiff, accept the allegations of the complaint as true, and determine whether plaintiffs factual allegations present plausible claims. To survive a Rule 12(b)(6) motion to dismiss, plaintiff's pleading for relief must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Ass'n of Cleveland Fire Fighters, 502 F.3d at 548 (quoting Twombly, 127 S.Ct. at 1964- 65). 7a An agency must interpret its implementing legislation in a reasonable manner and may not “promulgate regulations in a manner that are arbitrary or capricious in substance, or manifestly contrary to the statute.” Clark Reg'l Med. Ctr. v. United States Dep't of Health & Human Res., 314 F.3d 241, 244-45 (6th Cir.2002). Where Congress empowers an agency to enact rules and regulations necessary to carry out an Act, those regulations are to be upheld “so long as [they are] reasonably related to the purposes of the enabling legislation.“ Jackson v. Richards Med. Co., 961 F.2d 575, 585 (6th Cir.1992) (quoting Mourning v. Family Publ'ns Serv., Inc., 411 U.S. 356, 369 (1973)). B. The regulation comports with the statute and Congressional intent Bowman argues that the regulatory exclusion in 32 C.F.R. § 77.3(a) is not authorized by the enabling legislation, 10 U.S.C. § 1143a, and is contrary to the purpose and intent of Congress in establishing the Program. The government, on the other hand, argues that the regulatory exclusion is authorized by § 1143a, is supported by the legislative history, and is entitled to substantial deference under Chevron U.S.A., Inc. v. Nat'l Res. Def. Council Inc., 467 U.S. 837, 844 (1984). For the reasons discussed below, the district court properly held that the regulatory exclusion contained in 32 C.F.R. § 77.3(a) is consistent with the authorization provision of 10 U.S.C. § 1143a. 8a In deciding whether the regulatory exclusion conflicts with the statutory enactment, 10 U.S.C. § 1143a(g), the proper starting point is the enabling legislation itself. 10 US.C. § 1143a(a) provides: 1143a. Encouragement of postseparation public and community service (a) In general. The Secretary of Defense shall implement a program to encourage members’ and _é$ former members of the armed forces to enter into public and community service jobs after discharge or release from active duty. Id. This enabling legislation gives the Secretary broad power to implement the Program. Congress defined community service organizations as set forth below: (g) Definitions.-In this section, the term “public service and community service organization” includes’ the following organizations: (1) Any organization that provides the following services: (A) Elementary, secondary, or postsecondary school teaching or administration. (B) Support of such teaching or school administration. 9a (C) Law enforcement. (D) Public health care. (EF) Social services. (F) Any other public or community service. (2) Any nonprofit organization that coordinates the provision of services described in paragraph (1). The statute is silent on the issue of whether or not work for a religious organization is exempt. The Secretary's challenged regulation, 32 C.F.R. § 77.3(a), allows early retirees to participate in the Program when they work for nonprofit organizations engaged in religious activities “if the activities are unrelated to religious instructions, worship services, or any form of proselytization.” Bowman contends that Congress would have spoken on the issue if it had intended to exclude certain work in religious activities as it has done so explicitly in other legislation. For example, Bowman cites to three statutes that the district court relied upon in its analysis that the regulatory exclusion was needed to avoid a viclation of the Establishment Clause of the First Amendment. Bowman v. United States, 512 F.Supp.2d 1056, 1069 (N.D.Ohio 2007). In each of those Acts, Congress specifically prohibited government funds from being used for sectarian purposes. See 42 U.S.C. § 300X-65(i) (“No funds provided through a grant or contract to a religious organization to provide services under any substance abuse program under this subchapter or subchapter 10a III-A of this chapter shall be expended for sectarian worship, instruction, or proselytization”); 29 U.S.C. § 2938(a)(3) (“Participants shall not be employed under this chapter to carry out the construction, operation, or maintenance of any part of any facility that is used or to be used for sectarian instruction or as a place for religious worship”); and 42 U.S.C. § 9920(c) (“No funds provided directly to a religious organization to provide assistance under any program described in subsection (a) of this section shall be expended for sectarian worship, instruction, or proselytization”). Bowman argues that because Congress has explicitly forbidden using public funds to support a religious organization for sectarian worship, instruction, or proselytization in other instances, the fact that it did not do so under § 1143a must be construed to mean that Congress did not intend for any restriction to apply. Bowman makes too much of Congressional silence. Congress endowed the Secretary with broad discretion to adopt’ eligibility critena for participation. The government contends that drawing an inference from Congressional _ silence is inappropriate because the Secretary's regulations reasonably construe statutory terms left undefined by Congress in a manner supported by the legislative history. The government argues that an inference may not be drawn from Congressional silence where the inference “is contrary to all other textual and contextua] evidence of congressional] intent.” Burns v. United States, 501 U.S. 129, 136 (1991). The government contends that since the enabling statute lla specifically allows the Secretary to define the activities which qualify for a retirement credit, the Secretary is entitled to substantial deference for those regulations. In Chevron, the Court held that where Congress has explicitly given an agency the power to elucidate a specific provision of a statute by regulation, the regulation must be upheld unless it is “arbitrary, capricious, or manifestly contrary to the statute.” 467 U.S. at 844. The first question for the Court in deciding whether or not the Secretary's interpretation of § 1143a as set forth in 36 C.F.R. § 77.3(a) is permissible is “‘whether Congress has directly spoken to the precise question at issue’ by employing precise, unambiguous statutory language.” Alliance for Cricy. Media v. F.C.C., 529 F.3d 763, 776-77 (6th Cir.2008) (quoting Chevron, 467 U.S. at 842). Where Congress has spoken in unambiguous terms, the inquiry ends and the court must “give effect to the unambiguously expressed intent of Congress.” Jewish Hosp., Inc. v. Sec'y of Health & Human Servu's, 19 F.3d 270, 273 (6th Cir.1994). Congress's definition of “public and community _ service organization” is vague and leaves a gap for the Secretary to fill. This is especially true given the myriad of organizations, public and private, offering various services of value to the community. Since § 1143a(g) is ambiguous, the second prong of the Chevron analysis comes into play, and the Court must determine if the Secretary's interpretation of the statute is reasonable. Alliance 12a for Cmty. Media, 529 F.3d at 778. The Court is guided by the specific language of the provision at issue and its legislative history. Jd. The second Chevron prong requires the court to decide if the regulation represents a “permissible construction of the statute,” and substantial] deference is given to the agency's interpretation. Estate of Gerson v. Comm'r of Internal Revenue, 507 F.3d 435, 438 (6th Cir.2007), cert. denied, --- U.S. ----, 128 S.Ct. 2502 (2008) (quoting Chevron, 467 U.S. at 842-43); Harris v. O!szewski, 442 F.3d 456, 466 (6th Cir.2006). The government argues that the exemption is compelled by Congressional intent to benefit only a very narrow’ class of community _ service organizations, namely, those involved in education, law enforcement, and health care. The district court based its decision on this. distinction. The government relies on the Senate Report which specifically provides that the purpose of the legislation is to “authorize active duty personnel who are approved for early retirement to accrue additional military retirement credit if they take critical jobs, such as in education, law enforcement, and health care.*"Senate Committee on Armed Services, National Defense Authorization Act for Fiscal Year 1993, S.Rep. No. 102-352, at 202 (1992). The government contends that the emphasis on “critical job vacancies” in “education, law enforcement, and health care,” is in harmony with the Secretary's exclusion of work for a religious organization if it involves “religious instructions, worship services, or any form of proselytization.” l3a Bowman, however, asserts that the exclusion is at odds with the expansive language of § 1143a(g) which includes credit for organizations involved in “social services” and “any other public or community service.” Nothing in the legislative history suggests that Congress intended to encourage retirees to accept positions which would involve “religious instructions, worship or proselytization.” Similarly, nothing in the text of the statute itself suggests that Congress intended to benefit this kind of activity. Under these circumstances, deference is owed to the Secretary of Defense who, through his regulations, has excluded from § 1143a(g)'s definition of service all activities involving “religious instructions, worship or proselytization.” Accordingly, the district court properly held that the regulatory exclusion contained in 32 C.F.R. § 77.3(a) does not violate 10 U.S.C. § 1143a(g).3 C. The regulation does not violate Bowman's right to equal protection 3 Bowman argues, by way of a footnote, that his allegation that his work as a youth minister constituted “public and community service” within the meaning of 10 U.S.C. § 1143a(g) must be taken as true for purposes of a Rule 12(b)(6) motion. Bowman is incorrect. His allegation is not a factual assertion but a legal conclusion which we need not accept. See e.g., Gahafer v. Ford Motor Co., 328 F.3d 859, 861 (6 Cir. 2003); Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6t» Cir. 1987). l4a The district court also dismissed Bowman's complaint on the grounds that 32 C.F.R. § 77.3(a) did not violate his equal protection claim both on its face and as applied to him. Since Bowman did not set forth any facts challenging the application of the statute to him, the district court properly found that his as-applied and facial claims were one and the same and analyzed them as such. The district court correctly recognized that equal protection applies to the federal government through the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 500 (1954). The Equal Protection Clause “protects against arbitrary classifications, and requires that similarly situated persons be treated equally.” Jackson v. Jamrog, 411 F.3d 615, 618 (6th Cir.2005) (quotations omitted). 1. Strict Scrutiny Bowman argues that his challenge of the constitutionality of the exclusion is subject to strict scrutiny because the exclusion is a classification based on religion and burdens his free exercise of religion. To survive strict scrutiny analysis, the regulation must be narrowly tailored to advance a compelling governmental interest. An _ equal protection claim is subject to rational basis review unless it involves infringement of a fundamental right or application to a suspect class. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Unless the Program violates Bowman's fundamental right to exercise his religion, it must be upheld as long as it bears a “rational relationship to 15a a legitimate state interest.” Jamrog, 411 F.3d at 618. Strict scrutiny applies where the classification affecting eligibility for benefits is based on religion or burdens the exercise of religion. See McDaniel v. Paty, 435 U.S. 618, 628 (1978). The First Amendment provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. CONST. amend. I. Laws intended to advance or inhibit religion, or having either effect, generally violate the Establishment Clause. Agostini v. Felton, 521 U.S. 203, 222-23 (1997). On appeal, Bowman relies primarily on two Supreme Court cases in support of his argument that strict scrutiny analysis applies to his equal protection claim. First, he relies on McDaniel, in which the Supreme Court struck down a law prohibiting ministers from participating as delegates. or representatives in state constitutional conventions. The Court applied strict scrutiny analysis because the law prohibiting ministers from serving as delegates and legislators at state constitutional conventions pitted plaintiff's constitutional right to the free exercise of his religion against his constitutional mght to seek and hold public office. See Id. at 626.The district judge ruled that McDaniel did not apply because the regulation in dispute does not involve Bowman's right to participate in the political affairs of the community. 512 F.Supp.2d at 1066. In fact, the Supreme Court's recent decision in Locke v. Davey, 540 U.S. 712, 720 (2004), supports this interpretation. In Locke, the Court upheld the State 16a of Washington's constitutional prohibition against using a state scholarship toward a degree in devotional theology and distinguished McDaniel on the basis that the prohibition at stake was much less onerous than denial of a minister's right to participate in the political affairs of the community. Id. at 720, 725. Bowman also relies on Sherbert v. Verner, 374 U.S. 398 (1963) to support his argument that strict scrutiny analysis applies to his constitutional challenge to 32 C.F.R. § 77.3(a). In Sherbert, the Court held that the denial of unemployment benefits to a person because her religious beliefs prevented her from working on Saturday constituted a burden on the exercise of religion that must be supported by a compelling state interest. Jd. at 403-06.Since Sherbert was decided, the Supreme Court has held that the government cannot deny a public benefit based on a worker's religious beliefs in a number of employment cases. See Hobbie v. Unemployment Appeals Comm'n. of Florida, 480 U.S. 136 (1987) (strict scrutiny test applied to Florida's refusal to award unemployment compensation to claimant who was discharged for refusing to work on her Sabbath); Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707 (1981) (strict scrutiny test applied to Indiana's refusal to pay unemployment compensation to Jehovah Witness who quit his job after his employer required him to make armaments). The facts of this case are markedly distinct from the situation presented in Sherbert and its progeny. Here, Bowman need not choose between exercising his religious beliefs and receiving a governmental benefit. He worked as a youth minister for pay and any loss of an incremental increase in his retirement pay burdened him much less than losing unemployment compensation altogether. In Locke, the Supreme Court addressed the question of whether Washington's constitution, which prohibits public funding for any religious worship, exercise or instruction, as applied to bar state scholarships for degrees in devotional theology, violated the Free Exercise Clause. Jd. at 719. In addressing this question, the Supreme Court noted that if the State of Washington chose to allow private recipients to use their state scholarship to pursue a degree in devotional theology, there would be no violation of the Federal Constitution. Jd. at 719.The Ninth Circuit had ruled that the exclusion of scholarships for devotional theology degrees was subject to strict scrutiny because the state had singled out religion for unfavorable treatment. 7d. at 718. Under strict scrutiny analysis, the Ninth Circuit ruled that the exclusion must be “narrowly tailored to achieve a compelling state interest.” Id. The Ninth Circuit determined that the state's interest in avoiding a violation of the Establishment Clause was not compelling and held that the scholarship program was unconstitutional. 7d. 18a The Supreme Court reversed, finding that prohibiting the funding of devotional degrees did not evince any religious animus toward religion. Jd. at 725.The rationale for this conclusion is that the exclusion did not prohibit students from attending religious schools or even from taking devotional theology courses, but only barred students from pursuing a vocation in the clergy. Jd. at 721.The Supreme _ found that excluding state funding of training for a religious profession is in keeping with the state's antiestablishment interests. Jd. at 723- 25.In reaching this conclusion, the Court reviewed several of its prior decisions in which it found laws in violation of the Free MLxercise Clause and distinguished them. 7d. at 725 (citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (criminalizing religious ritual of animal sacrifice violates Free Exercise clause); McDaniel, supra (law denying ministers the right to participate in political affairs of the community unconstitutional). The Locke Court further ruled that the exclusion did not require students to choose between exercising their religious beliefs and receiving a government benefit, as the students were free to pursue a secular degree while obtaining a religious degree. Jd. at 720-21 (distinguishing Hobbie, supra; Thomas, supra; and Sherbert, supra ). The Supreme Court ruled that the “State has merely chosen not to fund a distinct category of instruction” and found that decision permissible. Jd. at 721. Although the Washington Constitution drew “a more stringent line than that drawn by the United 19a States Constitution,” id. at 722, the Court still found the State of Washington's interest in avoiding the establishment of religion and its concomitant interest in avoiding funding for devotional degrees, to be “historic and substantial.” Jd. at 725. In Locke, the Supreme Court found that Washington's “historic and substantial” interest in avoiding an establishment of religion allowed it to choose not to fund training for religious professions, even where such funding would not violate the Establishment Clause. Id. at 725. As in Locke, Bowman has not shown that his fundamental right to the free exercise of his religion has been violated. He was free to work as a youth minister but could not have that work count toward his military retirement. The regulation at issue here, 32 C.F.R. § 77.3(a), not only excludes work for religious organizations that “are unrelated to religious instructions, worship services, or any form of proselytization,” but also excludes all work for “businesses organized for profit, labor unions, and partisan political organizations.” The breadth of the exclusion suggests that the Secretary was not discriminating along religious lines. As AUSCS points out in its amicus brief, this case is most analogous to the Supreme Court's opinion in Johnson v. Robison, 415 U.S. 361 (1974). In Johnson, a religiously-motivated conscientious objector to the Vietnam War sought but was denied educational benefits for veterans. Jd. at 362-64. By statute, the government provided educational 20a funding to veterans who had served on “active duty” in Vietnam. Id. at 363.The conscientious objector was able to avoid the draft pursuant to a regulation which allowed him to perform “alternative civilian service.” Id. at 366, n. 1. He completed two years of alternative civilian service work at a hospital. Jd. at 364.He then brought suit alleging that his hospital service work should be counted as “active duty” toward the educational benefits and that its exclusion violated his First Amendment right to the free exercise of his religion and violated his right to equal protection under the Fifth Amendment. 7d. at 365. The Supreme Court addressed the question of whether the law limiting the class of persons entitled to veterans’ educational benefits to those individuals who actually served in the Armed Forces, and not to those who performed “alternative civilian service” as conscientious objectors, violated the appellee's equal protection rights. Jd. at 374.The Court applied the rational-basis test, over appellee's argument that strict scrutiny should apply, and ruled that Congress had a legitimate interest in treating those men and women who served their country through active duty in the military differently from those who served in civilian life as alternative service performers. Jd. at 374 n. 13, 381-82. The Court identified Congress's legitimate public interest in attracting men and women to serve in the military, to provide them with incentives to give up educational and employment opportunities to do so, and to assist them in their return to civilian life, as a sufficient reason to satisfy the rational-basis test. Id. at 376-82. 2la The conscientious objector argued that denying his claim to veterans’ educational benefits amounted to a violation of his right to exercise his religion freely because it increased the price he must pay to adhere to his religious beliefs. Jd. at 383.The Court disagreed, finding that the “withholding of educational benefits involves only an incidental burden upon appellee's free exercise of religion-if, indeed, any burden exists at all.” Jd. at 385.The Court then looked at Congressional intent, which was aimed at rewarding those who served in active duty and assisting them in returning to civilian life, not to any legislative purpose to interfere with the free exercise of religion. Id. Similarly, in this case, the Secretary's exclusion of different types of work from the definition of “community service” was not intended to interfere with the free exercise of religion. The withholding of a retirement credit for Bowman's work as a youth minister does not burden his right to practice or adhere to his religious beliefs. The district court properly held that strict scrutiny did not apply because the regulation did not interfere with Bowman's fundamental right to exercise his religion and was not motivated by animosity against religion. 2. Rational Basis Scrutiny Having found that 32 C.F.R. § 77.3(a) does not interfere with Bowman's right to freely exercise his religious beliefs and that he is not a member of a 22a suspect class, the rational basis test applies to the question of whether the exclusion may be upheld. Jamrog, 411 F.3d at 618 (citing Cleburne Living Ctr., 473 U.S. at 500). Rational basis review is extremely deferential. “[A] statutory classification that neither proceeds along suspect lines nor _ infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993). Under the rational-basis test, the question is whether the regulation at issue is “rationally related to legitimate government interests.” Doe v. Michigan Dep't of State Police, 490 F.3d 491, 501 (6th Cir.2007) (quoting Washington v. Glucksberg, 521 U.S. 720, 728 (1997)). “[Clourts hold statutes unconstitutional under this standard of review only in rare or exceptional circumstances.” Jd. Although the standard is quite liberal, a classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Johnson, 415 U.S. at 374-75 (quoting F-S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920), and citing Reed v. Reed, 404 U.S. 71, 75-76 (1971)). For the reasons set out below, the regulation withstands the deferential rational-basis test. The government argued before the district court that the regulation in dispute, 10 C.F.R. § 77.3(a), met the rational basis test for two reasons. 23a First, the government argued that the regulation comports with the alleged sole purpose of the statute, 10 U.S.C. § 1143a(g), to fill critical needs in public service organizations limited to those involving law enforcement, education, and public health. Secondly, the government argued that the regulation was rationally related to the government's interest in avoiding an Establishment Clause violation. The district court held that the exemption of 32 C.F.R. § 77.3(a) withstood rational basis scrutiny under both arguments. The government has now abandoned the Establishment Clause violation argument; thus, this court need not address it. The district court did not err in holding that the regulatory exclusion was necessary to comport with Congressional intent to limit community service credit to those serving in education, law enforcement, and public health. The government posits that the regulations easily pass scrutiny under the rational- basis test since they limit the class of activities that can support a group of a PACs retirement credit to the group Congress identified. Nothing in the statute itself or the legislative history suggests that a retirement credit should be given for a retiree whose work for a religious organization involves religious instructions, worship or proselytization. As the district court properly found, the regulation is rationally related to limiting the retirement credit to jobs which fill “critical needs” in the community, such as in education, law enforcement, and health care. CONCLUSION 24a The regulation, 32 C.F.R. § 77.3(a), conforms with the definition of “community service” set forth in the statute, 10 U.S.C. § 11438a(g), and with Congressional intent. Accordingly, the district court's dismissal of plaintiff's complaint is AFFIRMED. The regulation easily survives rational basis review. It is not arbitrary and capricious in its exclusion of certain’ religious activities. The exemption serves the legitimate governmental interest of avoiding the mere appearance of excessive governmental entanglement with religion. Thus, the district court’s ruling that the regulation does not violate Bowman's equa! protection rights hereby is AFFIRMED. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION LINDEN D. BOWMAN, } Case No.: 1:06 CV 1323 Plaintiff ) JUDGE SOLOMON ) OLIVER, JR. V. ) UNITED STATES OF ) AMERICA, et al. ) Defendants ) ORDER Pending before the court is Defendants United States of America, et al. (collectively, “Defendants”) Motion to Dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No. 12.) For the foregoing reasons, the Fed.R.Civ.P. 12(b)(1) motion to dismiss is denied, and the Fed.R.Civ.P. 12(b)(6) motion is granted. I. FACTS AND PROCEDURAL HISTORY On October 23, 1992, Congress passed Pub.L. 102-484, codified in 10 U.S.C. § 1143a, directing the Secretary of Defense to “implement a program to encourage members and former members of the armed forces to enter into public and community service jobs after discharge or release from active duty.” 10 U.S.C. § 1148a(a). Pursuant to this authority, the Secretary of Defense promulgated 32 C.F.R. §§ 77.1-.6, the Program to Encourage Public and Community Service (“Program”). Section 26a 77.4(b)(2) permits qualified former military personnel to accrue additional service credit for retirement through employment with “public or community service organization[s] that provide the services listed in sections 77.3(d)(1) through (d)(12).”!. The Program, however, excludes “organizations engaged in religious activities, unless such activities are 132 C.F.R. § 77.3(d), (e) defines a “public and community service organization” as follows: Government or private organizations that provide or coordinate the provision of the following services: (1) Elementary, secondary, or post secondary school teaching or administration. (2) Support of teachers or school administrators. (3) Law enforcement. (4) Public health care. (5) Social services. (6) Public safety. (7) Emergency relief. (8) Public housing. (9) Conservation. (10) Environment. (11) Job training. (12) Other public and community service not listed previously, but consistent with or related to services described in paragraphs (d)(1) through (11) of this section. (e) Public service employment. Work in a Federal, state or local government organization which provides or coordinates’ services. listed in paragraphs (d)(1) through (12) of this section. 27a unrelated to religious instructions, worship services, or any form of proselytization.” 32 C.F.R. § 77.3(a). It also excludes “businesses organized for profit, labor unicns, {and} partisan political organizations.” 7d. Plaintiff served in the United States Air Force from September, 1977, until he retired in January, 1996. (Am. Compl. 4 18, 20, ECF No. 21.) Plaintiff maintains that he retired with approximately seventeen years and three months of service. (Ud. { 20.) Plaintiff further states that he began employment with the People's Church of the C & MA (“Church”) in Geneva, Ohio in January, 1996, as a lay intern and later as a youth minister and that he was continuously employed with the Church until February, 2001. dd. J 21-22.) Plaintiff filed this lawsuit on May 30, 2006. (Comp., ECF No. 1.) In his Amended Complaint,? 2 On December 27, 2007, Plaintiff filed a Motion to Amend the Compiaint (ECF No. 15), together with a proposed First Amended Complaint. (ECF No. 15-1.) In Plaintiff's Motion to Amend, he sought to add the following paragraph: Late in the year 1998, the Plaintiff prepared and submitted to the Director, Defense Manpower Data Center ..., in Fort Ord, California a Validation of Public or Community Service Employment form requesting his employment with the People's C & MA Church starting January 1, 1996, be credited toward his years of service with the military under the 28a Plaintiff alleges that he filed for military service credit under the Program “late in the year 1998,” again in November 2002, and once more in October, 2004, by submitting a Validation of Public or Community Service Employment Form (“Validation Form”) to the Defense Manpower Data Center (“DMDC”). (Am.Comp.{]J 24-26.) Plaintiff alleges that “the reason his request for creditable service under the [Program] has not been granted and/or processed is because the form shows on its face that the Plaintiff's employment was with a religious organization and so the employment does not qualify under [32 C.F.R. § 77.3(a)j.” (Am.Comp.{ 27.) Plaintiff also cursorily alleges that he “engaged in public and community service of the kind described in 10 U.S.C. § 1143a(g) and 32 C.F.R. S 77.3(d).”. (Am.Compl.J 23.) Plaintiff, however, acknowledges that “because of the provisions of 32 C.F.R. § £°.77.3(a) providing that nonprofit organizations ‘engaged in religious activities' may not be considered a qualifying organization under the [Program], any application ... for creditable service based upon his employment by [the Church] between Community Service Program. The Plaintiff never received any response to this 1998 application for service credits under the Community Service Program. (Mot. to Amend at 1.) The court granted Plaintiff's Motion to Amend on July 20, 2007. (See Order, ECF No. 20.) Plaintiff filed the Amended Complaint on July 2, 2007. (Am. Comp., ECF No. 21). 29a from [sic] January 1, 1996 and February 28, 2001 would be denied because the activities of the church were related to religious instruction and worship services.” (Am.Comp.{{ 28.) Plaintiff states that the exclusion contained in 32 C.F.R. § 77.3(a)“is not authorized by 10 U.S.C. § 1148a(g) and is contrary to the purpose and intent of Congress.” (id. ¥ 33.) Additionally, Plaintiff alleges that the regulation's provision barring an early retiree from earning credit toward military service if he works for a religious organization and performs activities related to religious instructions, worship services, or proselytization is unconstitutional on its face and as applied to Plaintiff. (Jd. ] 31-32.) Plaintiff asks that the court declare that the exclusion contained in 32 C.F.R. § 77.3(a) is unconstitutional on its face and as applied to Plaintiff. Ud. at 9.) Plaintiff also asks that Defendants be permanently enjoined from enforcing or applying the exclusion contained in 32 C.F.R. § 77.3(a). Ud. at 9.) Finally, Plaintiff asks the court to issue a mandatory injunction directing Defendants to amend Plaintiff's records to indicate he performed public and community service creditable toward his military retirement pension and benefits, based on twenty years of service (Jd. at 9.) On November 21, 2006, Defendants filed the pending Motion to Dismiss. (ECF No. 12.). In its Motion, Defendants argue: (1) this court lacks subject matter jurisdiction because Plaintiff lacks Article III and prudential standing; (2) this court lacks subject matter jurisdiction because Plaintiff's as-applied and facial Equal Protection challenges to 32 C.F.R. $ 77.3(a) are barred by the statute of limitations; and (3) Plaintiff fails to state a claim upon which relief can be granted because the regulation would violate the Establishment Clause if it did not contain language excluding an early military retiree from earning retirement credit if he works for a religious organization and performs activities related to religious instructions, worship services, or any form of proselytization. (Mot. to Dismiss at 7, 8, 11.). Plaintiff filed an Opposition to Defendants’ Motion to Dismiss on December 26, 2006. (PI.'s Mot. Opp'n, ECF No. 14.). In his Opposition, Plaintiff argues: (1) he has Article III and prudential standing because he timely submitted his application for benefits; (2) his claim is not barred by the statute of limitations because his cause of action never accrued as there was never a final agency action rendered on his application; and (3) the regulation would not violate the Establishment Clause if it allowed an early retiree to earn military retirement credit for working at a religious organization and performing religious activities related to religious instructions, worship services, and proselytization. (Jd. at 4-9.) Il. STANDARD FOR DISMISSAL A defendant may challenge the court's subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). The plaintiff has the burden of proving the 3la court's subject matter jurisdiction. Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir.1986). In the context of a Rule 12(b)(1) motion, “[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson 355 U.S. 41, 45-46 (1957). Furthermore, a “Rule 12(b)(1) motion to dismiss will be granted only if, taking as true all facts alleged by the plaintiff, the court is without subject matter jurisdiction to hear the claim.” Nawar Omeiri v. Dist. Dir., Bureau of Citizenship and Immigration, No. 07-11757, 2007 WL 2121998, 2007 U.S. Dist. LEXIS 53235, at *3 (E.D.Mich. July 24, 2007) citing Hishon, 467 U.S. at 73). Under Fed. R. Civ. P. 12(b)(6) the court examines the legal sufficiency of a plaintiff's claim. See Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993). Courts reviewing a 12(b)(6) motion must accept the well-pled factual allegations of the complaint as true and construe all reasonable inferences in favor of the plaintiff. See Muller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). The court, however, need not accept “conclusions of law or unwarranted inferences cast in the form of factual allegations.” Czupih v. Card Pak, Inc., 916 F.Supp. 687, 689 (N.D.Ohio 1996). Ultimately, a complaint may be dismissed only if “the plaintiff undoubtedly can prove no set of facts in support of his claim that would entitle him to relief.” Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.1995). 32a Ill. LAW AND ANALYSIS A. Standing. In its Motion to Dismiss, Defendants argue that this court lacks subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) because Plaintiff does not have standing to bring this action (Defs.' Mot. to Dismiss at 7.) In order to establish standing, a plaintiff must satisfy both Article III of the U.S. Constitution and prudential standing requirements. 1. Article III Standing. Standing under Article III requires a plaintiff to demonstrate: “(1) an injury in fact that is actual or threatened; (2) a causal connection between the defendants' conduct and the alleged injury; and (3) a substantial likelihood that the injury will be redressed by a favorable decision.” Huish Detergents Inc. v. Warren County Ky., 214 F.3d 707, 710 (6th Cir.2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). In his Amended Complaint Plaintiff alleges: (b]ut for the provision of 32 C.F.R. § 77.3(a) excluding employment with “organizations engaged in_ religious activities” from the Community Service Program, the Plaintiff would be entitled to credit toward his military retirement benefits.... [and] Plaintiff would be 33a entitled to receive 50% of his base military pay upon reaching the age of 62. (Am.Comp.J 28, 29.). These two paragraphs themselves satisfy Article III as they state: (1) that Plaintiff is injured because he did not receive benefits as a result of the classification drawn in the statute; (2) that Defendants are responsible as the creator of the regulation; and (3) that invalidating the statute would permit Plaintiff to receive benefits. Therefore, taking these allegations as true, Plaintiff satisfies Art. ITI requirements. 2. Prudential Standing. Under the Administrative Procedures Act (“APA”) “all parties ‘adversely affected or aggrieved’ by a final agency action [have] prudential standing to bring suit in federal court. 5 U.S.C. § 702. A person is ‘adversely affected or aggrieved’ within the meaning of the APA if his or her claim meets the ‘zone of interest’ test.” Bangura v. Hansen, 434 F.3d 487, 498-99 (6th Cir.2006) (citing NCUA v. First Nat'l Bank & Trust Co., 522 U.S. 479, 487-90 (1998)). Prudential standing merely requires that Plaintiff show that “the interest he or she seeks to protect, ‘is arguably within the zone of interests to be protected by the statute’ under which the plaintiff sues.” /7d. at 499 (quoting NCUA, 522 US. at 492). The zone of interest test is a two-part inquiry: “(flirst, the court must determine what interests the 34a statute arguably was intended to protect, and second, the court must determine whether the ‘plaintiff's interests affected by the agency action in question are among them.’ ” ZId. (quoting NCUA, 522 U.S. at 492). The Sixth Circuit has held that the prudential standing test “is not meant to be_ especially demanding.” Jd. (quoting Courtney v. Smith, 297 F.3d 455, 461 (6th Cir.2002)). Defendants do not contest the first prong of the prudential standing test. Defendants, however, argue that Plaintiff fails to satisfy the second prong of the prudential standing test because “[nJo final [agency] action was taken because DMDC never received a proper timely application to participate in the [Program] from Plaintiff.” (Mot. to Dismiss at 7.) Specifically, Defendants contend that Plaintiff did not complete “all required reporting within 1 year of the end of the enhanced retirement qualification period as required by DODI 1340.19, 7 5.3.3.” (Id.) As a result of Plaintiff's alleged untimely application, Defendants contend that “[n]o final action was taken because DMDC never received a proper, timely application to participate in the [Program] from Plaintiff.” (/d.). Where, as here, a party seeks review of agency action, the APA provides that the party must demonstrate they have been “ ‘adversely affected or aggrieved’ by a final agency action.” Bangura, 434 F.3d at 498-99 (emphasis added). For the purpose of the APA, “adversely affected” and “zone of interest” are equivalent, and “an action is final where it: (1) marks the ‘consummation of the agency's decision- making process; and (2) determines rights and obligations or occasions legal consequences.” Id. at 500-01 (quoting Bennett v. Spear, 520 U.S. 154, 177- 78 (1997)). However, delay or inaction by the agency may also constitute final action permitting an applicant to seek review. See Natural Res. Def. Council v. Fox, 93 F.Supp.2d 531, 538 (S.D.N.Y.2000) (“The APA itself includes ‘failure to act’ in its definition of ‘agency action.’”) (citing 5 U.S.C. § 551(3)); see alsoS5 U.S.C § 701(b)(2) (“ ‘agency action’ [has] the meaning [ ] given [to it] by section 551 of this title”); Sierra Club v. Thomas, 828 F.2d 783, 793 (C.A.D.C.1987) (“Agency inaction may represent effectively final agency action that the agency has not frankly acknowledged”); Pub. Citizens Health Research Group v. Com'r, FDA, 740 F.2d 21, 32 (D.C.Cir.1984) ( “At some point administrative delay amounts to a refusal to act, with sufficient finality and ripeness to permit judicial review.”). Here, Plaintiff satisfies the second prong of the prudential standing test because he has alleged Defendants' inaction in his Amended Complaint as well as the fact that he was adversely affected or aggrieved by Defendants' inaction.? Specifically, 3 Plaintiff also argues that DoDI 1340.19 does not have the force of law and consequently has no bearing on whether his application was timely. (P].'s Mot. in Opp. at 4.) Finally, Plaintiff argues it is a reasonable inference that the DMDC received his application “especially in light of the common law ‘Mailbox Rule’ that the proper 36a Plaintiff states in his Amended Complaint that he filed a Validation Form with DMDC “late in the year 1998.” (Am.Comp.{ 24.) Plaintiff filed the Validation Form again in November, 2002, and October, 2004. (Am.Comp.] 25, 26.) Moreover, Plaintiff alleges that he sent a letter with the Validation Form in October, 2004, requesting clarification as to whether his application was denied. (Am.Compl.] 26.) Since on a 12(b)(1) motion to dismiss the court must “takl[e] as true all facts alleged by the plaintiff,” Omeiri, 2007 WL 2121998 at *1, 2007 U.S. Dist. LEXIS 53235, at *3 (citing Hishon, 467 U.S. at 73), it finds that Plaintiff has complied with DoDI 1340.19 ¥ 5.3.3 because he submitted the necessary paperwork prior to October 1, 1999, one year after his twenty-year retirement. Plaintiff therefore fulfills the second prong of the prudential standing testing because he alleges in his Amended Complaint that he was mailing of a document raises a rebuttable presumption that it is received by the addressee.” (Jd.) First, this court need not rule on Plaintiffs argument that DoDI do not have the force of law because, in light of the court's Order granting Plaintiffs Motion to Amend Complaint (ECF No. 20), the issue of timeliness is moot. Second, this court need not address Plaintiff's mailbox rule argument because DoDI 1340.19 7 5.3 only requires that Plaintiff “submit” a completed Validation Form; it does not require that DMDC “receive” the Validation Form. Accordingly, Defendant's contention that Plaintiff failed to state a claim by failing to aver that DMDC received the Validation Form is unavailing because DoDI 1340.19 ¥ 5.3, which Defendants argues is controlling here, does not require Plaintiff to make such a claim. 37a adversely affected or aggrieved by Defendants’ inaction. Accordingly, Defendants' argument based on Plaintiff's lack of prudential standing is not well- taken. B. Statute of Limitations. In its Motion to Dismiss, Defendants argue that the court lacks subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b\(1) because Plaintiff has exceeded the statute of limitations. First, Defendants assert that Plaintiffs as-applied [qual Protection claim in regard to 32 C.F.R. § 77.3(a) fails because the claim is time-barred under 28 U.S.C. § 2401(a). Second, Defendants charge that Plaintiff's facial challenge to 32 C.F.R. § 77.3(a) fails because Plaintiff failed to bring suit within six years after the publication of the regulation. For the foregoing reasons, Defendants’ arguments are not well-taken. First, Defendants assert that Plaintiff's as- applied claim is barred by 28 U.S.C. § 2401(a), which states that “[e]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” Defendant argues that Plaintiff failed to submit a timely application pursuant to DoDI 1340.19 7 5.3.3, which required Plaintiff to file for military service credit no later than one year after the end of the enhanced retirement qualification period that is synonymous with the twenty year- point. (Defs.' Mot. to Dismiss at 10) (citing DoDI 1340.19 J 5.3.3). Defendants argue that because 38a Plaintiffs twenty-year point is October 1, 1998, the statute of limitations on his cause of action accrued on October 1, 1999. (Def. Mot. To Dismiss at 10). Defendants therefore assert that the statute of limitations expired on October 1, 2005, and Plaintiff's suit is time-barred because he filed this cause of action on May 30, 2006. (/d. at 11.). Plaintiff contends that the statute of limitations has not yet expired because DMDC never acknowledged his application or rendered a decision on its merits. (Pl.'s Opp'n at 6-7, ECF No. 14.) Plaintiff alleges that a claim “accrues at the time of the final agency decision, or the exhaustion of all administrative remedies.” (Jd. at 6.) Plaintiff concludes that until there is a final agency decision, his cause of action does not accrue, nor does the six- year statute of limitations begin to run. (/d.) As noted previously, Plaintiff has alleged that he properly filed his application within one year of his twenty-year point pursuant to DoDI 1340.19 J 5.3.3. Additionally, the court has determined that eight years of inaction constitutes a final agency action. Although the court will not specify an exact date on which the agency action was final, the court finds that his cause of action accrued at least after the date he submitted his final application in 2004. Therefore, even assuming that Plaintiff's cause of action accrued the day he filed his last application, the six-year statute of limitations would not expire until 2010. Taking Plaintiff's allegations as true, and construing all reasonable inferences in his favor, the 39a court finds that the statute of limitations on his cause of action has not expired. Second, citing Dunn-McCampbell Royalty Interest, Inc. v. National Park Service, 112 F.3d 1283, 1287 (5th Cir.1997), Defendant argues that Plaintiff's facial Equal Protection challenge is time-barred because Plaintiff failed to file within six years after 32 C.F.R. § 77.3 appeared in the Federal Register. (Defs.' Mot. To Dismiss at 11.) The Defendants claim that “[sJince 32 C.F.R. § 77.3 appeared in the Federal Register on August 10, 1994[,]” the statute of limitations ran on August 10, 2000. (/d.) In Dunn-McCampbell, the plaintiff brought facial and as-applied challenges against the defendants' oil and gas right regulations promulgated in 36 C.F.R. § 9B. The court stated that “[o]n a facial challenge to a regulation, the limitations period begins to run when the agency publishes the regulation in the Federal Register.” Jd. at 1287 (citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947)). However, the court noted that “it is possible ... to challenge a regulation after the limitations period nas expired, provided that the ground for the challenge is that the issuing agency exceeded its constitutional or statutory authority.” Id. (emphasis added). Furthermore, the court posited that “an agency's application of a rule to a party creates a new, six-year cause of action to challenge the agency's constitutional or statutory authority.” Id. The plaintiff in Dunn-McCampbell, however, could not prove that there was any application of the 40a statutes in order to restart the six-year period. /d. at 1287-88. In contrast to Dunn-McCampbell, Plaintiff here has alleged that the DMDC applied 32 C.F.R. § 77.3(a) to him by pleading that his application was not considered “because the form shows on its face that Plaintiffs employment was with al[n] [organization engaged in religious activities] and so fit would] not qualify under ...32 C.F.R. § 77.3(a).” (Am.Compl.] 27.) Taking Plaintiffs allegations as true and applying the rule set forth in Dunn- McCampbell, the court finds that the application of the regulation to Plaintiff restarts the six-year statute of limitations. Consequently, Defendants’ argument is not well-taken. C. Authorization of 32 C.F.R. § 77.3(a). As a preliminary matter, the court must address Plaintiffs contention that the regulatory exclusion in 32 C.F.R. § 77.3(a) is not authorized by 10 U.S.C. § 1143a and is contrary to the purpose and intent of Congress in establishing the Program. (P1.'s Opp'n at 13). Defendants argue that the regulatory exclusion is authorized by 10 U.S.C. § 1143a. For the foregoing reasons, Plaintiff's arguments are not well- taken. 10 U.S.C. § 1143a(g) states as follows: 4la (g) Definitions. In this section, the term “public service and community service organization” includes the following organizations: (1) Any organization that provides the following services: (A) Elementary, secondary, or postsecondary school teaching or administration. (B) Support of such teaching or school administration. (C) Law enforcement. (D) Public health care. (E) Social services. (F) Any other public or community service. (2) Any nonprofit organization that coordinates the provision of services described in paragraph (1). Defendants acknowledge that the challenged regulation, 32 C.F.R. § 77.3(a), “allows early retirees to participate in the [Program] when they work for nonprofit organizations engaged in_ religious activities if the activities are unrelated to religious instructions, worship services, or any form of proselytization.” (Defs.' Reply at 7.) Accordingly, and contrary to Plaintiffs assertion otherwise, the regulatory exclusion contained in 32 C.FR § 77.3(a) is therefore consistent with the authorization provision of 10 U.S.C. § 1143a(g). 42a D. Equal Protection. Defendants contend that Plaintiff fails to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) because the Program does not violate Plaintiffs Equal Protection rights. Defendants argue that the purpose of the Program is to benefit community and_ public _ service organizations and, as such, religious activities are excluded. Defendants also argue that, if the government provided funding for early retirees to participate in religious activities such as religious instructions, worship services, and proselytization to religious organizations, the regulation would violate the Establishment Clause. (Defs.' Mot. to Dismiss at 11-18.) Defendants argue that rational basis is the appropriate level of scrutiny. (Defs.' Reply at 6.) Plaintiff, however, responds that 32 C.F.R. § 77.3(a) violates his Equal Protection rights, as applied and facially,4 because the Establishment Clause would not be violated if the exclusion were not present, and that strict scrutiny is the appropriate level of scrutiny. Plaintiff confines his challenge to the constitutionality of the regulation and does not argue that his activities as a youth minister qualify him for military retirement credit under the _ existing 4 Beyond alleging that he has performed public and community services (Am. Comp. J 23, Pl.'s Opp'n at 11- 12), Plaintiff has not set forth any facts to call into question the application of the statute to him. Therefore, the court finds that there is no difference in this case between Plaintiff's as-applied and facial Equal Protection claims. 43a regulation. (Am.Comp.{ 28.) For the foregoing reasons, Plaintiff's arguments are not well-taken. 1. Applicable Level of Scrutiny. The Establishment Clause of the _ First Amendment of the United States Constitution provides: “Congress shall make no law respecting an establishment of religion.” The Equal Protection Clause of the Fourteenth Amendment forbids any state from denying “to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend XIV. Equal protection applies to the federal government through the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 500 (1954). It is well-settled that the requirements of Equal Protection are the same whether the challenge is to the federal government under the Fifth Amendment or to state and local actions under the Fourteenth Amendment. Buckley v. Valeo, 424 U.S. 1, 93 (1976). The Equal Protection Clause “protects against arbitrary classifications, and requires that similarly situated persons be treated equally.’ Jackson uv. Jamrog, 411 F.3d 615, 618 (6th Cir.2005). If the government action does not implicate either a fundamental right oor _ single out suspect classifications, statutes “must bear only a rational relationship to a legitimate state interest.” Id. (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)). Therefore, strict scrutiny applies in Equal Protection cases when a plaintiff's 44a fundamental] right to the free exercise of religion is implicated. Locke v. Davey, 540 U.S. 712, 720 n. 3, (2004) (applying rational basis scrutiny to the plaintiffs Equal Protection claim because the plaintiff's free exercise rights were not violated and holding that the Washington state program excluding students from pursuing theology degrees with state scholarship funds passes such rational basis review); Teen Ranch v. Udow, 389 F.Supp.2d 827, 841 (W.D.Mich.2005), aff'd 479 F.3d 403 (6th Cir.2007) (determining that since the plaintiff, who claimed the provision in the state appropriations bill excluding funding to sectarian programs violated her Equal Protection rights, “do not have a meritorious Free Speech or Free Exercise claim, their Equal Protection claim is subject to rational basis_ scrutiny.”); Wirzburger v. Galvin, 412 F.3d 271, 283 (lst Cir.2005) (citing Locke and applying rational basis scrutiny to the plaintiff parents' claims that the Massachusetts Const. amend. art. 18, which prohibited public financial support for private schools, violated their Equal Protection rights). Strict scrutiny also applies in Establishment Clause cases when a state disfavors religion on its face or has been motivated by animosity against religion. Locke, 540 U.S. at 725 n. 10, citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 532 (1993) (applying strict scrutiny and holding that the statute prohibiting animal sacrifice was motivated by religious animus toward a particular religious sect). Here, strict scrutiny is inappropriate because Plaintiff does not allege that 32 C.F.R. § 77.3(a) 45a interfered with his fundamental right to freely exercise his religion or that the statute was motivated by animosity against religion or disfavors religion. First, Plaintiff does not contend that 32 C.F.R. § 77.3(a) interferes with his fundamental right to freely exercise his religion. Plaintiff does not contend that 32 C.F.R. § 77.3(a) imposes criminal or civil sanctions on any type of religious service or right in which Plaintiff participated. See Locke, 540 U.S. at 720 (citing Hialeah, 508 U.S. at 532). Plaintiff does not maintain that 32 C.F.R. § 77.3(a) denies Plaintiff the right to participate in the political affairs of the community. Locke, 540 U.S. at 720, 124 S.Ct. 1307. (citing McDaniel v. Paty, 435 U.S. 618 (1978)). Plaintiff does not argue that 32 C.F.R. § 77.3(a) requires Plaintiff to choose between his religious beliefs and receiving a religious benefit. Locke, 540 U.S. at 720-21 (citing Hobbie ov. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987); Thomas uv. Review Ba. Of Indian Employment Sec. Div., 450 U.S. 707 (1981); Sherbert v. Verner, 374 U.S. 398 (1963)). Plaintiff therefore has not alleged facts that his fundamental right to exercise his religion has been curtailed by 32 C.F.R. § 77.3(a). Additionally, the regulation does not disfavor religion or display animus toward religion. Like the State of Washington in Locke that chose not to allow students to use state scholarship funding to obtain a theology degree, Defendants here have also “merely chosen not to fund a distinct category,” Locke, 540 U.S. at 720, of Program recipients. As the court in 46a Locke concluded, such a statutory exclusion does not disfavor religion. Notably, the regulation here excludes a number of different types of organizations. 32 C.F.R. § 77.3(a) (“These programs shall not be administered by businesses organized for profit, labor unions, partisan political organizations, or organizaticns engaged in religious activities ...”). Yet far from disfavoring or evincing hostility to religion, Defendants acknowledge that the Program credits military personnel for their work at religious organizations, so long as the activities performed by the early retiree “are unrelated to _ religious instructions, worship services, or any form of proselytization.” (Defs.' Reply at 7) (quoting 32 C.F.R. § 77.3(a)). Significantly, the regulation does not make any such accomodations for businesses organized for profit, labor unions, or partisan political activities. Consequently, Plaintiff has failed to allege that 32 C.F.R. § 77.3(a) disfavors or shows animus toward religion. Accordingly, rational basis scrutiny iS appropriate here because 32 C.F.R. § 77.3(a) does not interfere with Plaintiff's fundamental right to freely exercise his religion, the statute was not motivated by animosity against religion, and it does not disfavor religion. To satisfy rational basis scrutiny, the burden of proof is on Plaintiff to show that 32 C.F.R. § 77.3(a) does not bear “a rational relationship to a legitimate state interest.” Jackson v. Jamrog, 411 F.3d 615, 618 (6th Cir.2005) (citing Cleburne Living Ctr., 473 U.S. at 440). Significantly, the “rational basis test is enormously deferential to the government, and only rarely have laws been declared unconstitutional for failing to meet this level of review.” ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 9.1 (2002) (citations omitted). Under rational basis scrutiny, “statutory discrimination will not be set aside if any set of facts reasonably may be conceived to justify its discrimination.” McGowan v. Maryland, 366 U.S. 420, 426 (1961). 2. Applying Rational Basis Scrutiny. Defendants claim two purposes for the classification in 32 CFR § 77.3(a) excluding an early retiree from working at a religious organization and performing religious instructions, worship services, and proselytization, and Defendants argue both purposes withstand rational basis scrutiny. First, Defendants argue that the Program's classification excluding religious activities is rationally related to its purpose of providing benefits only to community and public service organizations. Second, Defendants argue that the Program's classification excluding religious activities is also rationally related to Defendants' purpose of avoiding an Establishment Clause violation. For the foregoing reasons, the court concludes that the Program withstands rational basis scrutiny. a. Providing Benefits to Community and Public Service Organizations. 48a Defendants note that “the purpose of the [Program] is to utilize the experience and skills of those individuals in the 15 to 20-year category ‘to fill critical needs in our communities’ such as ‘in education, law enforcement, and health care that are underserved.” ” (Defs.' Reply at 8) (citing Senate Committee on Armed Services, 102 S. REP. NO. 92- 352). The plain meaning of 32 C.F.R. § 77.1(b) also confirms Defendants' assertion that the primary purpose of the Program is to benefit public and community organizations, not, as Plaintiff asserts, military retirees. (The “purpose” of the Program is to “[e]ncourage and assist Service members requesting retirement with fewer than 20 years of service to register for public and community _ service employment.”) (Id.) (emphasis added). Since funding religious activities is not a purpose of the Program, Defendants argue, the classification excluding such activities is a rational means to serve the legitimate interest of filling critical needs in public and community service organizations. (Jd. at 8-9). Moreover, the Equal Protection Clause does not require Defendants to fund religious organizations in the same way that it funds secular organizations in any given program. Teen Ranch, 389 F.Supp.2d at 838 (Locke v. “Davey confirms that the Free Exercise Clause's protection of religious’ beliefs and _ practices from _ direct government encroachment does not translate into an affirmative requirement that public entities fund religious activity simply because they choose to fund the secular equivalents of such activity.”) (quoting 49a Eulitt v. Maine, Dept. of Educ., 386 F.3d 344, 354 (1st Cir.2004)). Defendants' argument is well-taken. Since Plaintiff has not shown that Defendant fails to set forth any set of facts that could reasonably justify the religious exclusion in 32 CFR § 77.3(a) based on the Program's purpose of only benefitting community and public service organizations, the statute withstands rational basis scrutiny. b. Avoiding Establishment Clause Violation. Second, Defendants argue that the purpose of the classification in 32 C.F.R. § 77.3 excluding religious organizations that are engaged in religious activities is Defendants' desire to avoid a violation of the Establishment Clause. The Supreme Court adopted a three-pronged test in Lemon v. Kurtzman, 403 U.S. 602, 612 (1971), to determine whether a government statute or practice complies with the Establishment Clause. First, the statute must have a secular legislative purpose. Jd. Second, the statute's principal or primary effect must neither advance nor inhibit religion. Jd. Third, the statute must not foster an excessive entanglement with religion. /d. The “entanglement” prong has been folded into the “effect” prong. See Zelman v. Simmons-Harris, 536 U.S. 639, 648-49 (2002) (“The Establishment Clause ... prevents a State from enacting laws that have the ‘purpose’ or ‘effect’ of adwancing or inhibiting religion.”). Here, Defendants do not dispute that the Program complies with the first prong of the Lemon 50a test. As discussed above, Defendants acknowledge that the Program has the secular purpose of encouraging military service personnel to fill critical needs in community and public service organizations by offering retirement credit to military personnel. (Defs.' Reply at 8, ECF No. 17). Such a purpose is clearly secular under the first prong of the Lemon test. Defendants argue, however, that were this federal program to provide increased retirement pay benefits for Plaintiff to work at a _ religious organization and perform religious services such as religious instructions, worship services, or proselytization, the statute would fail the second prong of the revised Lemon test. (Mot. to Dismiss at 18.) Defendants argue that doing so would have the principal or primary effect of advancing religion because it would be funding “specifically religious activities” at a “pervasively sectarian” organization in violation of Establishment Clause precedent. See Steele v. Indus. Dev. Bd., 301 F.3d 401, 407-09 (6th Cir.2002) (stating that the Roemer v. Bd. of Publ. Works of Maryland, 426 U.S. 736, 755 (1976) rule that “no state aid at all shall go to institutions that are so ‘pervasively secular’ that secular activities cannot be separated from. sectarian ones” is controlling until the Supreme Court specifically overrules it). Defendants also argue that the Program would “result in an excessive government entanglement with religion as the government would have to monitor Plaintiffs sectarian work at the 5la church to determine whether it constituted public or community service.” (Mefs.' Mot. to Dismiss at 18). Defendants argue that the classification in 32 C.F.R. § 77.3(a) limiting the Program to religious organizations that are not engaged in religious activities such as religious instructions, worship services, and proselytization allows the government to avoid violating the “effect” prong of the revised Lemon test, and that this exclusion is permissible under federal law. Defendants note that the restriction against funding activities related to religious instructions, worship services, or any form of proselytizaticn in 32 C.F.R. § 77.3(a) is consistent with “charitable choice” provisions that have been applied to a range of government grant programs in recent years to prohibit government funds from being used for sectarian purposes. (Defs.' Mot. to Dismiss at 15-17) (citing 42 U.S.C. § 300x-65(i); 29 U.S.C. § 2938(aX(3); 42 US.C. § 9920(c)). Moreover, Defendants correctly points out that the Supreme Court upheld the general grant program in Roemer, 426 U.S. at 740-41, which prohibited grantee private colleges from using such money for “sectarian purposes,” and the school aid program in Mitchell, 530 U.S. at 831, which prohibited any aid for any activity that was not “secular, neutral, and nonideological.” (Mot. to Dismiss at 17). The Supreme Court in Locke, 540 U.S. at 720 n. 3, applied rational basis scrutiny to a state statute excluding state funding of sectarian schools and held the exclusion did not violate students' Equal 52a Protection rights. Applying federal precedent in the wake of Locke, the Supreme Court of Maine interpreted federal Establishment Clause precedent and applied rational basis scrutiny to hold that Me.Rev.Stat. Ann. Tit. 20-A, § 2951(2), which excluded sectarian schools from payment of public fun [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0322%3A1. Public record. Not legal advice.