Equal Means Equal v. Ferriero

• Decision Date: 06 August 2020
• Docket Number: Case No. 20-cv-10015-DJC
• Parties: EQUAL MEANS EQUAL, the Yellow Roses and Katherine Weitbrecht, Plaintiff, v. David S. FERRIERO, in his Official Capacity as Archivist of the United States, Defendant.
• Court: U.S. District Court — District of Massachusetts

478 F.Supp.3d 105

EQUAL MEANS EQUAL, the Yellow Roses and Katherine Weitbrecht, Plaintiff,

v.David S. FERRIERO, in his Official Capacity as Archivist of the United States, Defendant.

Case No. 20-cv-10015-DJC

United States District Court, D. Massachusetts.

Filed August 6, 2020

Wendy J. Murphy, New England Law Boston, Boston, MA, for Plaintiff.

Liam C. Holland, Vinita B. Andrapalliyal, United States Department of Justice, Washington, DC, Rayford A. Farquhar, United States Attorney's Office, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

CASPER, J.

I. Introduction

Plaintiffs Equal Means Equal, The Yellow Roses (together, the "Organizational Plaintiffs") and Katherine Weitbrecht ("Weitbrecht" or "Individual Plaintiff") have filed this lawsuit against David S. Ferriero in his official capacity as Archivist of the United States ("Defendant" or the "Archivist") alleging constitutional violations and seeking, among other things, an order compelling the Archivist to record all states’ ratification of the Equal Rights Amendment (the "ERA") and otherwise prohibiting removal of previously recorded ratifications and an order declaring the Equal Rights Amendment ratified. D. 5 at 3, 25. The Archivist has moved to dismiss for lack of jurisdiction and failure to state a claim under both Fed. R. Civ. P. 12(b)(1) and 12(b)(6). D. 11. For the reasons stated below, namely that Plaintiffs lack standing, the Court ALLOWS the motion to dismiss, D. 11.

II. Standard of Review

Pursuant to Fed. R. Civ. P. 12(b)(1), a defendant may move to dismiss an action for lack of subject matter jurisdiction. "[T]he party invoking the jurisdiction of a federal court carries the burden of proving its existence." Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (quoting Taber Partners, I v. Merit Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993) ). To determine if the burden has been met, the Court "take[s] as true all well-pleaded facts in the plaintiffs’ complaints, scrutinize[s] them in the light most hospitable to the plaintiffs’ theory of liability, and draw[s] all reasonable inferences therefrom in the plaintiffs’ favor." Fothergill v. United States, 566 F.3d 248, 251 (1st Cir. 2009).

A defendant may also move to dismiss for a plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege "a plausible entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although detailed factual allegations are not necessary to survive a motion to dismiss, the standard "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555, 127 S.Ct. 1955. "The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint." Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2011).

III. Background¹

Unless otherwise noted, the following factual summary is taken from the allegations in the operative complaint and the Court assumes them to be true for the purposes of resolving the motion. McCloskey v. Mueller, 446 F.3d 262, 265 (1st Cir. 2006) (noting that under either rule applicable here that the court "accept[s] the plaintiffs’ well-pleaded facts as true and indulging all reasonable inferences in their behoof").

A. The Parties

David S. Ferriero is the Archivist of the United States and as such is responsible for the National Archives and Records Administration including the recording of states’ ratification of constitutional amendments and the amendments themselves. D. 5 ¶ 9; 1. U.S.C. § 106b. Equal Means Equal is a national 501(c)(4) organization whose sole purpose is to advocate for women's equality, ratification of the ERA and equal rights for women and girls. D. 5 ¶ 10. Specifically, its goal "is to eradicate sex/gender inequality and advocate for sex/gender equality and fully equal rights for women and men." D. 5 ¶ 59. In 2016, Equal Means Equal produced a documentary film titled "Equal Means Equal" which examined the status of American women who experienced discrimination and considered whether the ERA would mitigate this pattern of discrimination. D. 5 ¶ 60. Equal Means Equal's executive director, Kamala Lopez ("Lopez"), testified in front of the Illinois legislature in support of the ERA. D. 5 ¶ 61. Equal Means Equal has been advocating for state and federal officials to begin the process of examining their laws and regulations, and to take steps "to repair all sex discriminatory provisions," but officials have declined, citing the Archivist's refusal to recognize the ERA as ratified. D. 5 ¶ 62. Equal Means Equal further alleges that because the Archivist has refused to recognize the ERA as ratified, women attorneys and other advocates have been reluctant to demand repair work and Equal Means Equal has had to expend significant resources educating its members and members of the general public about why the ERA is duly ratified despite the Archivist's opinion to the contrary. D. 5 ¶ 63. The diversion of these resources, Equal Means Equal asserts, has reduced the amount of resources available to Equal Means Equal that would otherwise be used to assist in the repair work of sex discrimination provisions in anticipation of the ERA taking effect. D. 5 ¶ 63.

The Yellow Roses is an organization of Massachusetts high school students, founded in 2016, for the sole purpose of advocating for ratification of the ERA. D. 5 ¶ 11. The Yellow Roses’ mission is to advocate for and raise public awareness about the ratification of the ERA. D. 5 ¶ 66. The Yellow Roses engages in numerous activities including circulating a petition for the ratification of the ERA, interviewing and being interviewed by the media, meeting with state and federal officials to advocate for the equal treatment of women and ratification of the ERA, collaborating with activists and making public appearances to advocate for and teach young people to be activists in their communities. D. 5 ¶ 67. The Yellow Roses asserts that its mission is impaired by the refusal of government officials to begin the process of examining and repairing sex discriminatory laws, regulations and policies and because they cannot effectively advocate on behalf of the ERA so long as the ERA is perceived by government officials as not valid. D. 5 ¶ 69.

Individual Plaintiff Katherine Weitbrecht is a female resident of Norfolk County, Massachusetts. D. 5 ¶ 12. Weitbrecht personally suffered a violent act because she is female when she was strangled in Massachusetts for wearing a rape whistle. D. 5 ¶ 71. Weitbrecht reported the perpetrator to law enforcement and he was charged with a single count of assault and battery, but Plaintiffs allege that he could not be charged under the Massachusetts hate crime statute, Mass. Gen. L. c. 265 § 39, because sex is not a protected class under that statute. D. 5 ¶¶ 72-73 (citing Mass. Gen. L. c. 265 § 39 ). Weitbrecht is now reluctant to report any sex-based criminal activity because of that experience. D. 5 ¶ 74. She fears that reporting crimes committed against her because she is female will lead to inadequate charges and unjust treatment by law enforcement and the legal system. D. 5 ¶ 74. Weitbrecht alleges that her rights and well-being are threatened and violated by her lack of full constitutional equality and, as a result, she has been subjected to needless increased risk of violence because of her sex. D. 5 ¶¶ 75, 77.

B. The ERA

In March 1972, Congress approved a resolution proposing an Amendment to the Constitution, the Equal Rights Amendment, by a supermajority of each house and submitted it for ratification to the state legislatures. H.J. Res. 208, 86 Stat. 1523 (1972). The resolution includes the text of the proposed amendment and set a seven-year deadline from the date of submission for ratification. The resolution states:

JOINT RESOLUTION

Proposing an amendment to the Constitution of the United States relative to equal rights for men and women.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:

"ARTICLE-

"SECTION 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

"SEC. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

"SEC. 3. This amendment shall take effect two years after the date of ratification.

H.J. Res. 208, 86 Stat. 1523 (1972). States considered the ERA and thirty-five states ratified it, including Massachusetts, before the seven-year deadline passed. D. 5 ¶ 18. Five states also passed resolutions seeking to rescind their prior ratification, see Ratification of the Equal Rights Amendment, U.S. Dep't of Justice, Office of Legal Counsel, 44 Op. O.L.C. at *18–21 (Jan. 6, 2020).

In 1978, as the seven-year deadline approached, Congress passed a joint resolution by the majority of both houses extending the ERA's deadline to June 30, 1982. H.R.J. Res. 638, 95th Cong., 2d Sess., 92. Stat. 3799 (1978). No new states ratified the ERA between 1979 and 1982. D. 5 ¶ 18. One of these five states attempting to rescind the ERA was Idaho, whose rescission, along with Congress's 1978 extension, became the subject of a lawsuit, Idaho v. Freeman, 529 F. Supp. 1107, 1146-50 (D. Idaho 1981). The district court in Freeman held that Congress's 1978 extension was unsuccessful and states may rescind their ratification. Id. at...