Serv. Women's Action Network v. Mattis

• Citation: 352 F.Supp.3d 977
• Decision Date: 29 November 2018
• Docket Number: Case No. 12-cv-06005-EMC
• Court: U.S. District Court — Northern District of California
• Parties: SERVICE WOMEN'S ACTION NETWORK, Plaintiff, v. James N. MATTIS, Defendant.

352 F.Supp.3d 977

SERVICE WOMEN'S ACTION NETWORK, Plaintiff,

v.James N. MATTIS, Defendant.

Case No. 12-cv-06005-EMC

United States District Court, N.D. California.

Signed November 29, 2018

Rosemarie T. Ring, Rosemarie Theresa Ring, Munger, Tolles & Olson LLP, Christine Patricia Sun, Elizabeth O. Gill, Shilpi Agarwal, American Civil Liberties Union of No. Calif., San Francisco, CA, Gillian L. Thomas, Pro Hac Vice, Lenora Michelle Lapidus, American Civil Liberties Union, New York, NY, Steven McCall Perry, Munger Tolles & Olson LLP, Los Angeles, CA, for Plaintiff.

Andrew Evan Carmichael, U.S. Department of Justice, Washington, DC, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

Docket No. 127

EDWARD M. CHEN, United States District Judge

Plaintiff is Service Women's Action Network ("SWAN") a nonprofit "to support, connect and advocate for all military women, including current service members, but also veterans and future enlisted women." Docket No. 122 ¶ 13. Defendant is the Secretary of the Department of Defense, James N. Mattis. Id. ¶ 25. SWAN challenges as unconstitutional the "Leaders First" policy for the Army and Marines Corps, as well as the segregated training for the Marine Corps. Id. ¶ 6, 8. The Secretary moved for a motion to dismiss arguing that SWAN lacked both organizational and associational standing, and that SWAN has not stated a claim upon which relief can be granted. Docket No. 127.

The Court finds that SWAN has organizational standing to challenge both these policies. However, SWAN has failed to plead facts to establish associational standing to bring a claim on behalf of its members to challenge the "Leaders First" policy. SWAN has pled facts to establish associational standing to challenge the Marine Corps' segregated basic training. SWAN is granted leave to amend its Third Amended Complaint ("TAC") to allege factual allegations that it has a member who would have standing to challenge the "Leaders First" policy.

The Court also finds that SWAN has stated a claim upon which relief may be granted.

I.FACTUAL & PROCEDURAL BACKGROUND

The original complaint in this matter was filed on November 11, 2012. Docket No. 1. The original complaint challenged the Department of Defense's 1994 policy that excluded women from ground combat. Docket No. 1 ¶ 1. On January 24, 2013, the Secretary of Defense at the time rescinded the 1994 policy, and stated that the integration of women into combat positions and units must be completed by January 1, 2016. Docket No. 66 at 1. However, on April 28, 2016, the parties in this matter filed a joint case management statement indicating that the "Leaders First" policy would be implemented; this policy requires establishing women leaders into the previously closed units before junior enlisted women are able to join those units. Docket No. 75 at 9-17. The Leaders First policy, adopted by the Army and Marine Corps, "preclude the assignment of women soldiers and Marines to a company-level unit until two or more women ‘leaders’ are assigned to the unit." Id. ¶ 34. The Armed Services assert that the " ‘Leaders First’ policy furthers the goal of gender integration." Id. SWAN pleads that this policy

(1) deprives junior enlisted servicewomen access to the full range of positions available to their male colleagues, because they are only able to be assigned to combat units in which women "leaders" are installed; (2) deprives women "leaders" access to the full range of positions in combat units because they are assigned based on the needs of the "Leaders First" policy; (3) communicates to male servicemembers and leaders in combat units that they have little or no responsibility for the development and advancement of servicewomen; (4) places unusual and unnecessary burdens on junior enlisted women, who are often required to ignore chain of command norms in order to seek counsel from their designated female "leaders"; (5) places unusual and unnecessary burdens on women "leaders," who are required to divert attention from their own professional development in their new roles in combat units to mentor and supervise junior enlisted women; and (6) causes resentment among male soldiers in combat units.

Id. ¶ 6.

Similarly, the Marine Corps "continue to segregate recruits for basic training into same-gender platoons. The Marine Corps is the only service branch that separates training along gender lines." Id. ¶ 7. SWAN claims that this policy is unconstitutional because it:

(1) is premised on stereotypes about women's aptitude for military service; (2) deprives women of equal opportunity for training and mentorship, thus impairing their ability to successfully meet gender-neutral physical standards for their contracted MOSs and thereby to continue their training in those specialties; and (3) teaches male recruits and leaders to regard servicewomen as in need of protection, incapable of competing on equal footing with men, and otherwise as second-class members of the Marine Corps.

Id. ¶ 8.

On December 18, 2017, SWAN filed a Second Amended Complaint. Docket No. 107. On February 2, 2018, the Secretary filed a motion to dismiss for improper venue, lack of justiciability, and lack of standing. Docket No. 110. The Court granted the motion to dismiss on the grounds that SWAN lacked standing, but rejected the Secretary's arguments as to improper venue and lack of justiciability. Docket No. 118. Following the Court's order granting the Secretary's motion to dismiss, SWAN filed the TAC. Docket No. 122.

The TAC states that SWAN's goals include the empowerment and promotion of servicewomen. Id. ¶ 14. SWAN describes its main areas of focus as:

(1) unifying servicewomen as a nationwide community, through in-person events and online engagement; (2) connecting servicewomen with the resources they and their families need, primarily through building partnerships with other organizations; and (3) amplifying the voices of servicewomen by advocating for them on a wide range of issues, by participating in coalitions, conducting a national survey on the needs of women in the military, and educating members of Congress as to those needs.

Id. ¶ 15.

In furtherance of its goals, SWAN engages in the following activities: (a) fielding on average ten phone calls, Facebook posts, and emails per month from servicewomen looking for assistance with legal services and other issues; (b) seeking partnerships and coalition building with other organizations that assist women veterans; (c) creating a database of services for women in the military; (d) keeping Congress informed on issues related to women in the military by having educational Hill visits for its members; (e) developing a three-year strategic plan which includes "establishing a 501(c)(4) arm, increase and diversify funding sources, to create an online Resource Portal, to develop strategic partnerships with other organizations that can provide resources to servicewomen, and to develop a prioritized engagement plan that sets forth how SWAN will educate and mobilize key stakeholders and members to support professional growth." Id. ¶ 16.

SWAN asserts that the policies at issue have forced it to "divert its resources from direct advocacy promoting servicewomen and their needs during and after active service to engagement and advocacy regarding the gender segregation policies and practices that are the subject of this suit." Id. ¶ 14. SWAN contends that it has been forced to redirect "its limited resources and limited staff hours to answering questions from women who seek to enter combat roles, who are entering these roles under the ‘Leaders First’ policy, or who are experiencing or who have experience the segregated Marine Corps training." Id. ¶ 19.

SWAN pleads that its servicewomen members describe concerns about career advancement and opportunities because of "Leaders First" and the Marine Corps segregated training. Id. SWAN claims that these two policies have led to harassment from male counterparts. Id. The TAC states that to cope with these inquiries and concerns, it must devote many hours of limited staff time. Id.

Additionally, "in direct response to concerns raised through SWAN's Facebook page, SWAN staff held (and sponsored) a one-day ‘Trailblazers Workshop’ in Fort Hood, Texas in order to support the first class recruits trained for Army infantry roles at Fort Hood." Id. ¶ 20. This workshop was to "support and connect these infantry women in their day-to-day struggles, and to brainstorm how to deal with the ramifications of the ‘Leaders First’ policy and the continuing barriers and stigmatizations it creates."Id. ¶ 20. SWAN expressed an intention to hold another workshop in Fort Bragg, North Carolina. Id.

SWAN claims that approximately 15% of its staff's work hours have been spent addressing concerns regarding the policies at issue in this matter. Id. ¶ 21. SWAN has been forced to divert resources for "reaching out to Congress and other policymakers to advocate against these policies and practices, or connecting servicewomen to resources or networks that they need as they attempt to navigate military careers under these policies and practices." Id. But for the policies at issue here, SWAN believes it would be able to spend its time and resources focusing on its strategic plan rather than wasting valuable time combatting the effects of these policies. Id.

"SWAN is a membership organization." Id. ¶ 22. SWAN's membership is comprised of servicewomen that communicate with SWAN through Facebook, phone calls, emails and through its monthly e-newsletter. Id. In the TAC, SWAN shared stories of how these policies have impacted its members.

For example, with respect to "Leaders First," SWAN has a member who is an Infantry Platoon Leader in the Army National Guard. Because of the "Leaders First" policy, this member was treated differently from her male counterparts by being denied the ability to take inactive guard status for six months at the beginning of

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