National Coalition for Men v. Selective Service System, 022219 TXSDC, C. A. H-16-3362

Docket Nº:Civil Action H-16-3362
Opinion Judge:Gray H. Miller Senior United States District Judge.
Party Name:National Coalition for Men, et al., Plaintiffs, v. Selective Service System, et al., Defendants.
Case Date:February 22, 2019
Court:United States District Courts, 5th Circuit, Southern District of Texas

National Coalition for Men, et al., Plaintiffs,


Selective Service System, et al., Defendants.

Civil Action No. H-16-3362

United States District Court, S.D. Texas, Houston Division

February 22, 2019


Gray H. Miller Senior United States District Judge.

Pending before the court is: (1) a motion for summary judgment filed by plaintiffs National Coalition for Men (“NCFM”), Anthony Davis, and James Lesmeister (“Plaintiffs”) (Dkt. 73); and (2) a cross-motion for summary judgment and motion to stay filed by defendants Selective Service System (“SSS”) and Lawrence Romo (collectively, “Defendants”) (Dkt. 80). Plaintiffs responded to Defendants' cross-motion. Dkt. 81. Having considered the motions, response, evidence in the record, and applicable law, the court is of the opinion that Plaintiffs' motion for summary judgment (Dkt. 73) should be GRANTED and Defendants' motion for stay and summary judgment (Dkt. 80) should be DENIED.

I. Background

This case balances on the tension between the constitutionally enshrined power of Congress to raise armies and the constitutional mandate that no person be denied the equal protection of the laws. U.S. Const. art. I, § 8; U.S. Const. amend. V; Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693 (1954).

The Military Selective Service Act (“MSSA”) requires males-but not females-to register for the draft. The MSSA provides that “every male citizen of the United States, and every other male person residing in the United States . . . between the ages of eighteen and twenty-six, ” must register with SSS. 50 U.S.C. § 3802(a). After registering, men have a continuing obligation to update SSS with any changes in their address or status. § 3813. Failure to comply with the MSSA can result in up to $10, 000 in fines and five years of imprisonment. § 3811(a). Males are also subject to other penalties for failing to register, including denial of federal student loans. § 3811(f).

Plaintiffs challenge the MSSA on equal protection grounds, arguing that the MSSA's male-only registration requirement violates the Fifth Amendment Due Process Clause. Dkt. 60 at 12. Plaintiffs Lesmeister and Davis are males subject to the draft requirements.1 Dkt. 73-2 at 1-2. Both have registered with the SSS, in compliance with the MSSA. Id. NCFM is a non-profit, 501(c)(3) educational and civil rights corporation. Id. at 3. Some of NCFM's members, including Davis, are males subject to the draft requirements who have already registered or will have to register under the MSSA. Id. at 3-4.

In 2013, NCFM and Lesmeister filed suit against Defendants in the Central District of California. Dkt. 1. Initially, Judge Dale S. Fischer, the Central District of California judge, dismissed the case as not ripe for review. Dkt. 20. The Ninth Circuit reversed and remanded, holding that the plaintiffs' claims were “definite and concrete, not hypothetical or abstract, and so ripe for adjudication.” Nat'l Coal. for Men v. Selective Serv. Sys., 640 Fed.Appx. 664, 665 (9th Cir. 2016) (citations and quotations omitted). On remand, Judge Fischer granted Defendants' motion to dismiss NCFM without prejudice because the organization lacked associational standing. Dkt. 44 at 4. Further, the court determined that venue was not proper in the Central District of California and transferred the case to the Southern District of Texas, where Lesmeister resides. Id. at 5.

Upon transfer, Lesmeister amended his complaint to name NCFM and Davis as plaintiffs. Dkt. 60. This court subsequently determined that all three plaintiffs have standing. Dkt. 59. Both Plaintiffs and Defendants now move for summary judgment, arguing that current equal protection jurisprudence entitles them to judgment as a matter of law.2

II. Analysis

A. Motion to Stay

“The proponent of a stay bears the burden of establishing its need.” Clinton v. Jones, 520 U.S. 681, 708, 117 S.Ct. 1636 (1997). In their pending motion, Defendants first contend that the court should stay the current proceedings. Dkt. 80 at 15-21. Defendants argue that the case is not ripe for review because Congress is currently considering whether to add women to the draft. Id. Defendants also argue that, under separation-of-power principles, the court should postpone resolution of the case during congressional debate on the issue. Id. Finally, Defendants urge the court to stay the case using its inherent case-management power because the balance of hardships weighs in Defendants' favor. Id.

1. Ripeness

The justiciability doctrine of ripeness prevents courts, “through avoidance of premature adjudication, from entangling themselves in abstract agreements.” Choice Inc. of Tex. v. Greenstein, 691 F.3d 710, 715 (5th Cir. 2012) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977)). A court must dismiss for lack of ripeness when the case is “abstract or hypothetical.” Id. (quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 833 F.2d 583, 586 (5th Cir. 1987)). “Ripeness ‘requir[es] us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.'” Texas v. United States, 523 U.S. 296, 300-01, 118 S.Ct. 1257 (1998) (quoting Abbott Labs., 387 U.S. at 149). “A case is generally ripe if any remaining questions are purely legal ones; conversely, a case is not ripe if further factual development is required.” Choice Inc. of Tex., 691 F.3d at 715 (quoting New Orleans Pub. Serv., Inc., 833 F.2d at 586).

Defendants argue that the case is not currently fit for judicial decision because Congress recently established the National Commission on Military, National, and Public Service (“the Commission”) to consider whether Congress should modify or abolish the current draft registration requirements. Dkt. 80 at 17; National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 551, 130 Stat. 2000, 2130 (2016). Although the Ninth Circuit previously held that the case was ripe despite ongoing congressional debate, Defendants contend that the recently created Commission now renders Plaintiffs' claims unripe. Id. at 19. Defendants request that the court stay proceedings until the Commission has issued its report and Congress has had the opportunity to act on the Commission's recommendations. Id. at 21.

However, the existence of the Commission does not affect the ripeness of Plaintiffs' claims. The question of whether the MSSA violates the Constitution is purely legal; no further factual development is necessary for the court to decide the issue. Plaintiffs' claims are not “abstract or hypothetical.” Choice Inc. of Tex., 691 F.3d at 715 (quoting New Orleans Pub. Serv., Inc., 833 F.2d at 586)). While the Commission's recommendations could affect the current proceedings, the Commission is not set to release its final report until 2020. Dkt. 86-1 at 4 (Commission interim report). There is no guarantee that the Commission will recommend amending or abolishing the MSSA-and, even if it does, Congress is not required to act on those recommendations. Congress has been debating the male-only registration requirement since at least 1980 and has recently considered and rejected a proposal to include women in the draft. Rostker, 453 U.S. at 60; Dkt. 80-3 at 11 (Letter to Armed Services Committee Chairs, Sept. 2016). It is Defendants' arguments-not Plaintiffs' claims-that are too hypothetical for the court's consideration.3

“However, even where an issue presents purely legal questions, the plaintiff must show some hardship in order to establish ripeness.” Choice Inc. of Tex., 691 F.3d at 715 (citing Cent. & S. W. Servs., Inc. v. EPA, 220 F.3d 683, 690 (5th Cir. 2000)) (quotations omitted). Here, Plaintiffs have demonstrated that they are subject to the MSSA. Dkt. 73-2. NCFM's members include individuals who will have to register under the MSSA in the future and will be subject to ongoing requirements to update their personal information. Id. Moreover, “discrimination itself, by perpetuating ‘archaic and stereotypic notions' . . . can cause serious non-economic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.” Heckler v. Mathews, 465 U.S. 728, 739-40, 104 S.Ct. 1387 (1984) (citations omitted). Thus, Plaintiffs have shown “some hardship” and the case is ripe.

2. Separation of Powers

Second, Defendants effectively argue that the court

must grant a stay to give Congress proper deference in the realm of military affairs and avoid violating the separation of powers. Dkt. 80 at 11-13. Defendants cite Congress's broad constitutional power to conduct military affairs and the Supreme...

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