MPIRG v. Selective Service System

• Decision Date: 24 January 1983
• Docket Number: No. 3-82 Civ. 1670.,3-82 Civ. 1670.
• Parties: MINNESOTA PUBLIC INTEREST RESEARCH GROUP (MPIRG), Plaintiff, and John Doe, Richard Roe and Paul Poe, Intervening Plaintiffs, v. SELECTIVE SERVICE SYSTEM, Major-General Thomas K. Turnage, Director; and United States Department of Education, Terrel H. Bell, Secretary, Defendants.
• Court: U.S. District Court — District of Minnesota

557 F. Supp. 925

MINNESOTA PUBLIC INTEREST RESEARCH GROUP (MPIRG), Plaintiff and John Doe, Richard Roe and Paul Poe, Intervening Plaintiffs, v. SELECTIVE SERVICE SYSTEM, Major-General Thomas K. Turnage, Director; and United States Department of Education, Terrel H. Bell, Secretary, Defendants.

No. 3-82 Civ. 1670.

United States District Court, D. Minnesota.

January 24, 1983.

E. Gail Suchman and Daniel W. Lass, Minneapolis, Minn., for plaintiff.

Neil H. Koslowe, Dept. of Justice, Washington, D.C., for defendants.

William J. Keppel, Minneapolis, Minn., for intervening plaintiffs John Doe, Richard Roe and Paul Poe.

MEMORANDUM ORDER

ALSOP, District Judge.

This matter comes before the court upon the motion of defendants Selective Service System and United States Department of Education for judgment on the pleadings. Plaintiff Minnesota Public Interest Research Group (MPIRG) has moved for a preliminary injunction to enjoin the enforcement of Section 1113 of the Department of Defense Authorization Act of 1983, Pub.L. No. 97-252, 96 Stat. 748 (1982) amending the Military Selective Service Act, 50 U.S.C.App. §§ 451-471a (1981). A copy of the amendment is attached as "Exhibit A" to this order.

Plaintiff MPIRG is a college student-directed, nonprofit Minnesota corporation qualified to do business in Minnesota. Plaintiffs John Doe, Richard Roe and Paul Poe are all male residents of Minnesota, 19 to 21 years old, subject to Section 3 of the Selective Service Act who intend to apply for financial aid under Title IV of the Higher Education Act of 1965, 20 U.S.C. §§ 1070-1089 for the 1983-84 school year, who will be unable to complete their educations without financial aid, and who cannot file a truthful statement of compliance with Section 3 and regulations thereunder. Defendant Selective Service System is an agency of the United States. Defendant Major-General Thomas Turnage is the Director of the Selective Service System. Defendant United States Department of Education is an agency of the United States. Defendant Terrel H. Bell is the Secretary of the United States Department of Education. Defendants have opposed plaintiff MPIRG's motion and have moved for judgment on the pleadings, alleging that the suit is not justiciable under U.S. Const. art. 3 because plaintiffs lack standing to sue and because the suit does not raise a "case or controversy." Since significant challenges to this court's jurisdiction have been made, the court must examine those issues before considering the merits of the case.

Defendants' motion for judgment on the pleadings will be treated as a motion for summary judgment pursuant to Fed.R. Civ.P. 12(c) because matters outside the pleadings were presented to and considered by the court. In addition, since defendants' challenges to the intervenors' standing and the ripeness of their suit parallel defendants' challenges to the original plaintiff's standing and the ripeness of its suit, those issues will be treated together.¹ Finally, this memorandum constitutes the findings of fact and conclusions of law of the court.

I. The Case or Controversy Requirement

Federal courts are courts of limited jurisdiction. They are not to decide abstract, hypothetical or contingent questions but instead must focus on a specific live case or controversy. This ripeness doctrine has both a constitutional component based on Article III limitations on judicial power and a prudential component based on the discretionary power of the courts to refuse review for policy reasons.² This reluctance to invoke the power of the courts is:

derived from the historically defined, limited nature and function of courts and from the recognition that, within the framework of our adversary system, the adjudicatory process is most securely founded when it is exercised under the impact of a lively conflict between antagonistic demands, actively pressed, which make resolution of the controverted issue a practical necessity.³

Ripeness determinations require balancing the need for present adjudication and the hardship of withholding review against the impact of contingency in making the issues unsuitable for review at this time.⁴ That general rule is easy to state but difficult to apply as the United States Supreme Court recently observed: "the difference between an abstract question and a `case or controversy' is one of degree ... and is not discernible by any precise test."⁵ Difficult as that exercise may be, it is one in which this court must engage; defendants are correct when they note that the case or controversy requirement is not a mere technicality.

Defendants contend that MPIRG does not allege a specific live grievance based on concrete facts but instead raises a hypothetical chain of events. Since MPIRG cannot point to any student who has actually been denied financial assistance under Title IV of the Higher Education Act of 1965, 20 U.S.C. §§ 1070-1089, for failure to meet the registration requirement, defendants argue, the suit is premature. Defendants cite the following contingencies:

1. a person required to register must fail to do so;

2. that person must apply for assistance or benefits under Title IV;

3. that person must be found otherwise eligible to receive such assistance or benefits;

4. that person, after notice of proposed denial and opportunity for a hearing, must fail to establish compliance with the registration requirement; and 5. that person must be denied assistance or benefits.

Until this sequence of events actually occurs, defendants claim, MPIRG presents only a nonjusticiable abstract and contingent question. Similarly, defendants contend that the intervenors do not allege a case or controversy for the same reasons.

The court is not persuaded by defendants' argument. "Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect." Regional Rail Reorganization Act Cases, 419 U.S. 102, 143, 95 S.Ct. 335, 358, 42 L.Ed.2d 320 (1974). In that case, plaintiffs challenged the constitutionality of the Regional Rail Reorganization Act of 1973, 87 Stat. 985, 45 U.S.C. §§ 701-794, alleging it worked an unconstitutional "taking" of property without due process. The district court had found the so-called "conveyance taking" issue not ripe for adjudication because the statutory scheme required several decisional steps before the final conveyance. The district court cited three possible contingencies,⁶ one of which was resolved before the case reached the Supreme Court. The Supreme Court, however, found the issue ripe despite the two remaining alleged contingencies. It found, first, that implementation of the Rail Act would lead "inexorably" to the final conveyance, although the exact date of that conveyance could not be presently determined. While it was true that Congress could reject the first reorganization plan presented, the court read the Rail Act to contemplate continued presentation of plans until one was approved. Thus, the court said, it must assume there would be compliance with the Act's mandatory terms at some time. Id. at 140, 95 S.Ct. at 356.

Similarly, in the case at bar, defendants argue that the statutory scheme contemplates several steps before any student would be denied assistance or need to invoke the fifth amendment privilege against self-incrimination. Only after a student had first applied and second met eligibility requirements would he, under regulations not yet promulgated, probably be required to submit a certificate of compliance with registration requirements. Only then would a student face self-incrimination problems, defendants argue. Furthermore, assistance would not be denied until the above steps, as well as a notice of proposed denial, a hearing and a failure to cure the noncompliance, occurred.

Section 1113, however, by its terms imposes a mandatory system linking availability of financial aid to draft registration. Section 1113(f)(1) provides that any person required to register who fails to do so shall be ineligible for any form of assistance or benefit under Title IV. Subsection (2) provides that "in order to receive any ... assistance under Title IV a person required to register shall file ... a statement of compliance with section 3 and regulations issued thereunder." Subsection (3) requires the Secretary of Education, in agreement with the Director of the Selective Service, to prescribe methods for verifying such statements and provides that the Secretary of Education "shall issue regulations to implement the requirements ...." It must therefore be presumed that the Secretary will comply with the mandatory terms of Section 1113 and that implementation of the Section will lead inexorably to the denial of financial assistance, although the exact date of that denial cannot be presently determined.

The court in Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), also found that no court was empowered to prevent the final conveyance and thus the occurrence of the alleged taking was in no way hypothetical or speculative. Id. at 143, 95 S.Ct. at 358. "One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough" the court said, id. (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923)). In the case now before this court, there is also no provision for judicial review that would prevent the denial of assistance or the alleged burden on fifth amendment rights. Students should not have to risk denial of benefits or jeopardize their privilege against self-incrimination before they can seek judicial redress. If defendants' views were correct, no allegedly unconstitutional law could be challenged on its face. Instead, persons...