National Coalition for Men et al v. Selective Service System et al

Filing 66

MEMORANDUM OPINION AND ORDER DENYING 63 MOTION to Dismiss First Amended Complaint.(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NATIONAL COALITION FOR MEN, et al.,
Plaintiffs,
v.
SELECTIVE SERVICE SYSTEM, et al.,
Defendants.

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CIVIL ACTION H-16-3362

MEMORANDUM OPINION AND ORDER
Pending before the court is a motion to dismiss filed by defendants Selective Service System
(“SSS”) and Lawrence Romo (collectively, “Defendants”). Dkt. 63. Plaintiffs National Coalition
for Men (“NCFM”), James Lesmeister, and Anthony Davis (collectively, “Plaintiffs”) responded.
Dkt. 64. Defendants replied. Dkt. 65. Having considered the complaint, motion, response, reply,
and applicable law, the court is of the opinion that the motion to dismiss should be DENIED.
I. BACKGROUND
This is a case about the constitutionality of the Military Selective Service Act’s (“MSSA”)
requirement for males—but not females—to register for the draft.1 Dkt. 60. Unless otherwise
provided by the MSSA, “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); Dkt. 60 at 10. After registering, men have a continuing obligation to

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For the purposes of a motion to dismiss, the court accepts all well-pled facts contained in
Plaintiffs’ complaint as true. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677
F.2d 1045, 1050 (5th Cir. 1982).

update SSS with any changes in their address or status. 50 U.S.C. § 3813; Dkt. 60 at 10–11. Failure
to comply with the MSSA can result in fines or imprisonment. 50 U.S.C. § 3811; Dkt. 60 at 11.
Lesmeister and Davis are males subject to the draft requirements, and both recently registered
accordingly. Dkt. 60 at 4–5. NCFM is a non-profit, 501(c)(3) educational and civil rights
corporation. Id. at 2. Davis is a NCFM member. Id. at 3. Like Davis, some of its members are
males subject to the draft requirements and have already registered or will have to register. Id.
On April 4, 2013, NCFM and Lesmeister filed a complaint in the Central District of
California against Defendants alleging violations of the Fifth and Fourteenth Amendments of the
Constitution and violation of 42 U.S.C. § 1983 for sex-based discrimination in the draft system. Dkt.
1. Plaintiffs argue that because women can participate in combat, the Supreme Court decision
upholding the constitutionality of sex-based discrimination in the draft is no longer applicable. Dkt.
1 (citing Rostker v. Goldberg, 453 U.S. 57, 101 S. Ct. 57 (1981)).
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. Nat’l Coalition for Men
v. Selective Serv. Sys., 640 F. App’x 664, 665 (9th Cir. 2016). Then, Lesmeister and NCFM
voluntarily dismissed their Fourteenth Amendment and § 1983 claims. Dkt. 43. On November 9,
2016, 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. On August 16, 2017, this court granted Lesmeister
leave to file an amended complaint. Dkt. 59. Lesmeister’s amended complaint named NCFM as a
plaintiff and added Davis as a plaintiff. Dkt. 60.

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In the instant motion, Defendants move to dismiss Plaintiffs’ remaining Fifth Amendment
claim under: (1) Rule 12(b)(1) because Plaintiffs do not have standing to sue; and (2) Rule 12(b)(6)
because Plaintiffs do not state a claim upon which relief can be granted. Dkt. 63 at 2.
II. LEGAL STANDARD
A.

Rule 12(b)(1) Standard
A motion to dismiss under Rule 12(b)(1) challenges a federal court’s subject matter

jurisdiction. Fed. R. Civ. P. 12(b)(1). Under Rule 12(b)(1), a claim is properly dismissed for lack
of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate
the claim. Home Builders Ass’n v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Where,
as here, a motion to dismiss for lack of jurisdiction is limited to a facial attack on the pleadings, it
is subject to the same standard as a motion brought under Rule 12(b)(6). See Benton v. United
States, 960 F.2d 19, 21 (5th Cir. 1992).
B.

Rule 12(b)(6) Standard
Rule 8(a)(2) requires that the pleading contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A party against whom claims
are asserted may move to dismiss those claims when the nonmovant has failed “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 plaintiff must plead “enough facts to state
a claim to relief that is plausible on its face.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205
(5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007)).
“Factual allegations must be enough to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly,
550 U.S. at 555 (citations omitted). While the allegations need not be overly detailed, a plaintiff’s
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pleading must still provide the grounds of his entitlement to relief, which “requires more than labels
and conclusions,” and “a formulaic recitation of the elements of a cause of action will not do.” Id.;
see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937 (2009). “[C]onclusory allegations or
legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to
dismiss.” Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). Instead, “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Evaluating a motion to dismiss is a “context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Id. at 679. “Ultimately, the question for a court to
decide is whether the complaint states a valid claim when viewed in the light most favorable to the
plaintiff.” NuVasive, Inc. v. Renaissance Surgical Ctr., 853 F. Supp. 2d 654, 658 (S.D. Tex. 2012).
III. ANALYSIS
A.

Plaintiffs’ Standing
Defendants move to dismiss Plaintiffs’ claim because Plaintiffs do not have standing to sue.

Dkt. 63 at 19. Defendants argue that Lesmeister and Davis lack standing because they have not
suffered an injury from the MSSA’s male-only registration requirement. Id. at 20. They also argue
that because the individual plaintiffs lack standing, NCFM lacks associational standing. Id. at 23.
1.

Lesmeister/Davis Standing

Under Article III of the Constitution, a plaintiff must have standing to sue in order for a court
to have jurisdiction. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 180, 120 S. Ct. 693 (2000). “[T]o satisfy Article III’s standing requirements, a plaintiff must
show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action
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of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Id. at 180–81.
Defendants argue that Lesmeister and Davis lack standing because: (1) neither can
demonstrate an injurious harm; and (2) they cannot assert a de facto injury simply due to the alleged
constitutional violation. Dkt. 63 at 20. Plaintiffs respond that they “are harmed because they are
required to register for military conscription, continually report their whereabouts to the federal
government under penalty of fines, jail, and will be denied federal benefits if they do not.” Dkt. 64
at 2. Further, they allege they are harmed due to the sex-based discrimination, which sufficiently
constitutes an injury. Id. Because the court agrees that Lesmeister and Davis have alleged an injury,
the court need not consider whether the sex-based discrimination alone constitutes an injury.
As Judge Fischer previously found in this case, Plaintiffs allege that: (1) the MSSA requires
males between the ages of 18 and 26 to register with SSS; (2) a registrant has a continuing obligation
to update SSS with any changes in his address or status; (3) failure to comply with the MSSA can
result in fines or imprisonment; and (4) Lesmeister and Davis have registered and are subject to the
continuing obligation. Dkt. 44 at 3; see also Dkt. 60 at 10–11. Although Defendants argue that the
prospect of being drafted fails to constitute a concrete harm, the court need not decide that issue
because that is not the harm Plaintiffs allege. Defendants also argue that because Lesmeister and
Davis have complied with the MSSA, neither is subject to any action to enforce its requirements.
Id. Regardless, both have a continuing obligation to update SSS with changes to their information.
Dkt. 60 at 10–11. That obligation, paired with the requirement to register with SSS, constitutes an
injury sufficient for Article III standing. See E. Tex. Baptist Univ. v. Sebelius, 988 F. Supp. 2d 743,
758 (S.D. Tex. 2013) (Rosenthal, J.) (“HBU’s injury arises from the fact that the accommodation
requires it to comply with the self-certification steps or face severe penalties. . . . HBU is harmed
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when it has to fill out the form authorizing its TPA to provide coverage and payments for emergency
contraceptives, designating its TPA as the administrator for no-cost-sharing contraceptive benefits,
and informing the TPA of its statutory and regulatory obligations.”), rev’d on other grounds sub
nom. E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir. 2015), vacated on other grounds sub
nom. Zubik v. Burwell, 136 S. Ct. 1557 (2016); see also Goldberg v. Rostker, 509 F. Supp. 586,
590–91 (E.D. Pa. 1980), rev’d on other grounds, 453 U.S. 57 (1981). Because Lesmeister and Davis
have Article III standing, Defendants’ motion is DENIED.
2.

Associational Standing

“It is well-established that an association has Article III standing to bring a suit on behalf of
its members when ‘(a) its members would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of individual members in the lawsuit.’”
Funeral Consumers All., Inc. v. Serv. Corp. Int’l, 695 F.3d 330, 343 (5th Cir. 2012) (quoting Hunt
v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343, 97 S. Ct. 2434 (1977)). Defendants argue
that because NCFM cannot allege that any members have standing, NCFM also lacks standing. Dkt.
63 at 24. Because Davis is a member of NCFM and has standing to sue in his own right, NCFM
does, too. See Funeral Consumers, 695 F.3d at 343; see also supra Section III.A.1. Thus,
Defendants’ argument fails, and the motion is DENIED.
B.

Failure to State a Claim
Defendants argue that Plaintiffs fail to state a claim because: (1) entry of the relief sought

would impermissibly intrude on Congress’s authority over military affairs; and (2) Rostker binds the
court and requires dismissal. Dkt. 63 at 25, 28. The court disagrees with both arguments. The court
agrees with Defendants that Congress has broad power to raise and regulate armies and navies.
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Rostker, 453 U.S. at 65. Thus, “a healthy deference to legislative and executive judgments in the
area of military affairs” should be given by the court. Id. at 66. Rostker thoroughly explained the
reason to provide deference to Congress when dealing with military affairs. See id. at 64–67. But
“[n]one of this is to say that Congress is free to disregard the Constitution when it acts in the area
of military affairs. In that area, as any other, Congress remains subject to the limitations of the Due
Process Clause.” Id. at 67. Plaintiffs allege that the MSSA violates the Constitution. Dkt. 60 at 12.
Because Rostker explicitly requires Congress to comply with the Constitution in the area of military
affairs, and because Plaintiffs allege Defendants did not, Plaintiffs state a claim upon which relief
can be granted. See Rostker, 453 U.S. at 67; see also Dkt. 60 at 12.
Regarding Rostker’s applicability, as the court explained, Rostker did not hold that Congress
receives blind deference in the area of military affairs. 453 U.S. at 67. And regarding Rostker’s
holding that the male-only draft did not violate the Constitution, the factual circumstances of this
case are different. See id. at 76, 77 (“Women as a group, however, unlike men as a group, are not
eligible for combat. . . . The existence of the combat restrictions clearly indicates the basis for
Congress’[s] decision to exempt women from registration.”). Now, women can serve in combat
roles. Dkt. 60 at 7. Because the alleged factual circumstances of this case differ from the dispositive
facts in Rostker, the court cannot conclude, at this stage, that Rostker controls the outcome.

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IV. CONCLUSION
Because Plaintiffs have standing and assert a claim upon which relief can be granted,
Defendants’ motion to dismiss (Dkt. 63) is DENIED.
Signed at Houston, Texas on April 6, 2018.

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Gray H. Miller
United States District Judge

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