Serv. Women's Action Network v. Mattis

• Decision Date: 01 May 2018
• Docket Number: Case No. 12-cv-06005-EMC
• Citation: 320 F.Supp.3d 1082
• Court: U.S. District Court — Northern District of California
• Parties: SERVICE WOMEN'S ACTION NETWORK, Plaintiff, v. James N. MATTIS, Defendant.

320 F.Supp.3d 1082

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 May 1, 2018

Rosemarie T. Ring, Munger Tolles and Olson, Christine Patricia Sun, ACLU Foundation of Northern California, Elizabeth O. Gill, Shilpi Agarwal, ACLU of Northern California, San Francisco, CA, Lenora Michelle Lapidus, American Civil Liberties Union, Gillian L. Thomas, New York, NY, Steven McCall Perry, Munger Tolles & Olson LLP, Los Angeles, CA, for Plaintiff.

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

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

Docket No. 110

EDWARD M. CHEN, United States District Judge

The instant action was initially filed in November 2012. The plaintiffs at that time included individuals as well as the Service Women's Action Network ("SWAN"). They challenged as unconstitutional "the official policy of the Department of Defense (‘DoD’) that categorically excludes ... women[ ] from assignments to units whose primary mission is to engage in direct ground combat." Compl. ¶ 1. In January 2013, the then-Secretary of Defense announced that that policy (which dated back to 1994) was rescinded " ‘effective immediately.’ " See SAC ¶ 3. In spite of the Defense Secretary's statement, exclusion appeared to continue. In December 2015, the DoD announced that there would be no exceptions to " ‘the full implementation of ... rescission.’ " SAC ¶ 4. In proceedings before this Court, the government represented that "[t]he Military Services will use the same procedures that are currently used to select, assign, and train male service members." Docket No. 66 (Joint CMC St. at 7).

Notwithstanding the above, there remains a dispute in the instant case because, as alleged by the now sole remaining plaintiff SWAN, there are two new policies in place regarding placement of women in combat positions, both of which are unconstitutional based on sex discrimination. Currently pending before the Court is the current Defense Secretary's motion to dismiss. The Secretary argues that: (1) venue is improper in this District; (2) the case raises issues that are not justiciable; and (3) SWAN lacks standing to sue.

Having considered the parties' briefs and accompanying submissions, as well as the oral argument of counsel, the Court hereby GRANTS the Secretary's motion based on standing only. SWAN has leave to file an amended complaint to address its standing to bring this case.

I. FACTUAL & PROCEDURAL BACKGROUND

In the operative second amended complaint ("SAC"), SWAN challenges two policies that came about following the rescission of the policy that categorically excluded women from combat: (1) the "Leaders First" policy, which is used by both the Army and Marines; and (2) a Marines training policy that segregates trainees by gender.

As alleged in the SAC, the Leaders First policy "require[s] junior enlisted women to wait to enter combat battalions until two or more ‘women leaders’ join[ ] those battalions." SAC ¶ 5; see also SAC ¶ 26 (alleging that "the Army decided that ‘Leaders First’ meant that two or more women officers or NCOs [noncommissioned officers], of any rank (not midgrade or senior women), needed to be assigned at the battalion level before junior enlisted women could be assigned to that battalion") (emphasis in original). According to SWAN, for the Army, the result of the policy is that, "in practice, brand new women infantry and armor second lieutenants are being assigned to just two brigades, one at Fort Bragg [in North Carolina] and one at Fort Hood [in Texas]. No other infantry or armor brigade has been opened to women." SAC ¶ 27. SWAN also alleges that "the problem is even more severe" in the National Guard where "only two states have met the ‘Leaders First’ requirement, Colorado and New Hampshire." SAC ¶ 29 (emphasis in original).

As for the Marines training policy, it "segregate[s] recruits who are entering into combat MOSs [military occupational specialties] along gender lines during their training for those positions. The Marines have, for example, an ‘all-female Fourth Recruit Training Battalion.’ " SAC ¶ 7.

According to SWAN, the above policies are based "at least in part" on the "animus towards servicewomen on the part of the DoD and the Administration. Defendant Mattis, President Trump, and the President's close advisors have expressed extreme hostility towards Secretary Panetta's January 2013 announcement that women would be allowed to serve in some or all combat units." SAC ¶ 37.

II. DISCUSSION

As noted above, the Secretary makes three arguments in the pending motion to dismiss: (1) venue is improper in this District; (2) the case raises issues that are not justiciable; and (3) SWAN lacks standing to sue. Each argument is addressed below.

A. Venue

Venue in the instant case is governed by subsection (e) of 18 U.S.C. § 1391. That provision states as follows:

(e) Actions Where Defendant Is Officer or Employee of the United States.

(1) In general. A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (C) the plaintiff resides if no real property is involved in the action.

28 U.S.C. § 1391(e). SWAN, as the plaintiff, has "the burden of showing that venue was properly laid in the Northern District of California." Piedmont Label Co. v. Sun Garden Packing Co. , 598 F.2d 491, 496 (9th Cir. 1979).

The dispute in the instant case is whether "a substantial part of the events or omissions giving rise to the claim occurred" in this District. Id. According to the Secretary, that standard has not been satisfied:

[N]one of the events underlying Plaintiff's claims occurred in the Northern District of California, given that the government's decisions concerning women in combat were made in or around Washington, D.C. And, while Plaintiff asserts that "[t]he challenged policies and practices are enforced, and their impact is felt, throughout the Northern District of California ... where the DoD maintains several bases," the events giving rise to Plaintiff's equal protection claims are Defendant's enactment of the "policies and practices" related to women in combat, which occurred in [or around] Washington, D.C.

Mot. at 20-21 (emphasis in original).

The Secretary's argument is not persuasive. SWAN asserts a constitutional claim, which is akin to a tort claim. For instance, courts have drawn a parallel between § 1983 claims based on constitutional violations and tort common law. See, e.g. , OSU Student All. v. Ray , 699 F.3d 1053, 1072 n.12 (9th Cir. 2012) (stating that, "like common law torts, constitutional torts require proximate cause"); Lukovsky v. City & Cty. of S.F. , 535 F.3d 1044, 1048 (9th Cir. 2008) (stating that, "[w]hen, as here, a federal civil rights statute does not include its own statute of limitations, federal courts borrow the forum state's limitations period for personal injury torts, which the parties agree in this case is one year under California law"); Ziegler v. Indian River Cty. , 64 F.3d 470, 474 (9th Cir. 1995) (stating that "[a] section 1983 claim for deprivation of a constitutional right is more akin to a tort claim than a contract claim" and "therefore analyz[ing] the question of purposeful availment [for personal jurisdiction] using the tort-case standard"); see also Johnson v. City of Seattle , 474 F.3d 634, 638 (9th Cir. 2007) (stating that, "[l]ike individual state officials, municipalities are only liable under Section 1983 if there is, at minimum, an underlying constitutional tort").

Therefore, for purposes of venue under § 1391, the Court looks to the general rule that, "in a tort action, the locus of the injury [is] a relevant factor."

Myers v. Bennett Law Offices , 238 F.3d 1068, 1076 (9th Cir. 2001). As noted in one well-established legal treatise, "[i]n tort cases, courts tend to focus on where the allegedly tortious actions took place and where the harms were felt" when considering whether a substantial part of the events or omissions giving rise to the claim did or did not occur in the forum district. Wright & Miller, 14D Fed. Prac. & Proc. Juris. § 3806 (4th ed.) (emphasis added; also noting that personal jurisdiction and venue should not be equated with one another but "[b]ecause venue under Section 1391(b)(2) is based upon a connection between the claim and the forum district, it is not surprising that some of the factors relevant to the venue assessment will overlap with those relevant to personal jurisdiction"). See, e.g. , Seidel v. Kirby , 296 F.Supp.3d 745, 753 (D. Md. 2017) (noting that "[t]he legally relevant ‘occurrence’ in a defamation action is where the publication occurred, i.e.[,] where third persons were exposed to the material that would tend to damage the plaintiff's reputation") (emphasis omitted); Horacek v. Burnett , No. 07-11885, 2008 WL 623975, at *2-3, 2008 U.S. Dist. LEXIS 121905, at *4-5 (E.D. Mich. Jan. 9, 2008) (noting that, "[i]n an action involving a state agency or department, ... it is not unusual that the defendant will be located in the state capitol" but "[t]hat does not mean that all such cases must be brought in the Western District, even when the named defendant is located there"; e.g. , "where action taken in the state capitol has an effect in the other district, venue in that other district is proper").

In addressing constitutional claims, courts have indeed looked to the place of injury in assessing venue. See Cabellero v. Taylor , No. 12-cv-8645, 2013 WL 2898254, at *3, 2013...