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Case Name National Coalition for Men v. Selective Service System EE-TX-0478
Docket / Court 4:16-cv-03362 ( S.D. Tex. )
State/Territory Texas
Case Type(s) Equal Employment
Public Benefits / Government Services
Case Summary
The Selective Service System (SSS) was created in 1917 by the federal government following the U.S. entry into World War I. The law currently requires that all male U.S. citizens, and certain categories of non-U.S. citizen men residing in the U.S., aged 18-25 register with the SSS within 30 days of ... read more >
The Selective Service System (SSS) was created in 1917 by the federal government following the U.S. entry into World War I. The law currently requires that all male U.S. citizens, and certain categories of non-U.S. citizen men residing in the U.S., aged 18-25 register with the SSS within 30 days of turning 18. On January 24, 2013, the Defense Secretary Leon Panetta announced that he was lifting the ban on women serving in combat roles in the U.S. military, removing the final barrier to women theoretically serving in the military at an equal capacity to men.

On April 4, 2013, the National Coalition for Men (NCFM) and an individual plaintiff filed a class action suit against the SSS and its director, Lawrence G. Romo, in the United States District Court for the Central District of California. The plaintiffs sued under § 1983, alleging that the requirement that American men register for the draft violated the Equal Protection Clause under both the Fifth and Fourteenth Amendments as a form of discrimination on the basis of sex. The plaintiffs sought injunctive and declaratory relief, attorney fees and any other relief deemed just by the court. The case was assigned to District Judge Dale S. Fischer.

The defendants filed a motion to dismiss on June 17, 2013 on the basis that neither plaintiff had standing under the threshold requirement imposed by Article III of the Constitution. The defendants argued that the threshold requirement required both that the plaintiff must have suffered an injury and that there was a showing of jurisdiction. According to the defendants, the individual named plaintiff failed to adequately plead an injury, and the NCFM’s claim of organizational standing could not be demonstrated merely by claiming they were acting on the general behalf of male members of NCFM aged 18-25. The defendants also argued that the question of whether it was constitutional to only require men to register for the draft had already been litigated at the Supreme Court in Rostker v. Goldberg.

On July 29, 2013, Judge Fischer granted the motion to dismiss filed by the defendants on the basis that the plaintiffs’ case was hypothetical and abstract, rather than ripe for review. In other words, the plaintiff’s claim was not urgent, and Rostker provided clear precedent. The court also noted that the plaintiffs’ case was based on the unsupported conclusion that the 2013 memo issued by Defense Secretary Panetta meant that all combat positions would be opened to women, as opposed to combat roles generally.

The plaintiffs filed an appeal with the Ninth Circuit on September 26, 2013. On February 19, 2016, the Court of Appeals reversed and remanded the decision for further proceedings on the basis that the case could be fit for adjudication due to the Department of Defense’s new policies and the general advancement of women in society since the Rostker decision. The Ninth Circuit also held that extending the burden of registration to women or striking down the requirement for men could constitute an adequate remedy. 640 Fed.Appx. 664.

Back at the district court level, the defendants filed a motion to dismiss based on a lack of subject-matter jurisdiction for both plaintiffs and due to improper venue. The court held that the named plaintiff had standing to argue suffering an "injury in fact" as the standing minimum includes when the government imposes on affirmative obligation. NCFM was found to not have standing because it could not establish an injury to the organization and the named plaintiff was not identified as a member of the organization. Though the named plaintiff had standing, the court agreed that because he was a resident of Texas, the Central District of California was an improper venue. The case was dismissed without prejudice on November 9, 2016 and transferred to the Southern District of Texas.

On January 26, 2017, named plaintiff filed a motion to amend his complaint to add another named plaintiff residing in Southern California who was an active member of the NCFM, and to reinstate the NCFM as a plaintiff. Plaintiff also filed a motion to transfer venue to the Southern District of California. The court granted plaintiff’s motion to amend his complaint but denied his motion to transfer venue on the basis that he failed to show good cause.

The court refused to grant defendants’ motion to dismiss the case. In the eyes of the court, the plaintiffs lacked standing due to a failure to state a claim upon which relief could be granted, and no one suffered harm as a result of the SSS requirement. The court ruled that the requirement of registering with the SSS and obligation to update personal information constituted sufficient injury for standing. Regarding plaintiffs’ claim, defendants argued that the claim would intrude on congressional authority over military affairs and the court was still bound by the Rostker decision. The court responded that as in all policy areas, congressional authority over military affairs was subject to the Constitution, and that lifting the ban on women in combat roles created different factual circumstances from Rostker due to the recent lifting of the ban on women serving in combat and general advancement of women in all areas of society.

The plaintiffs filed a motion for summary judgment. The defendants filed a motion to stay proceedings and a cross-motion for summary judgment on the basis that Congress was considering modifying or abolishing current SSS requirements through the National Commission on Military, National and Public Service. On February 22, 2019, the court granted final judgment in favor of the plaintiffs but denied the plaintiffs’ request for injunctive relief. Regarding the male-only registration requirement and the Equal Protection clause, the court ruled that in order to justify legislation that differentiates on the basis of gender, the defendants must show that the classification “serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” The court held that defendants did not sufficiently show that the male-only registration was substantially related to the congressional objective of raising and supporting armies.355 F.Supp.3d 568.

On April 22, 2019, the defendants filed an appeal with the Fifth Circuit. The Fifth Circuit reversed the lower court’s decision on October 5, 2020, on the basis that the district court lacked the authority to overturn precedent set by the Supreme Court in Rostker. 969 F.3d 546.

Plaintiffs’ appeal to the Supreme Court failed with a denial of a petition for hearing the case issued on June 7, 2021. In an opinion authored by Justice Sotomayor, the Supreme Court denied the petition on the basis of both deference to Congress on national defense and military affairs and the fact that Congress was actively reviewing gender-based registration through the National Commission on Military, National and Public Service. 141 S.Ct. 1815 (Mem).

Hannah Juge - 10/15/2021


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Issues and Causes of Action
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Issues
Affected Gender
Male
Constitutional Clause
Equal Protection
Discrimination-area
Other Conditions of Employment (including assignment, transfer, hours, working conditions, etc)
Discrimination-basis
Sex discrimination
Causes of Action 42 U.S.C. § 1983
Ex parte Young (federal or state officials)
Defendant(s) Selective Service System
Plaintiff Description The National Coalition for Men is a men's rights organization founded in 1976 that describes itself as "the oldest organization in the world that advocates for equal rights for men and women," and is dedicated to examining how men are adversely affected by sex discrimination. James Lesmeister is a male resident of Texas. Anthony Davis is a male resident of California who was added to the complaint to get in an effort transfer the case to CA.
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Filed 04/04/2013
Case Closing Year 2021
Case Ongoing No
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Court Docket(s)
S.D. Tex.
06/07/2021
4:16-cv-03362
EE-TX-0478-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
C.D. Cal.
04/04/2013
For Injunctive and Declaratory Relief [ECF# 1]
EE-TX-0478-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
02/19/2016
Memorandum [Ct. of App. ECF# 32] (640 Fed.Appx. 664)
EE-TX-0478-0004.pdf | WESTLAW| LEXIS | External Link | Detail
Source: Justia
C.D. Cal.
11/09/2016
(In Chambers) Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss and Transferring the Action to the Southern District of Texas (Dkt. 34) [ECF# 44] (2016 WL 11605246)
EE-TX-0478-0003.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Supreme Court
06/07/2021
[Opinion of the Court Denying Petition for Writ of Certiorari] (141 S.Ct. 1815)
EE-TX-0478-0001.pdf | WESTLAW | Detail
Source: Supreme Court website
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Judges Berzon, Marsha Siegel (Ninth Circuit) show/hide docs
EE-TX-0478-0004
Breyer, Stephen Gerald (First Circuit, SCOTUS) show/hide docs
EE-TX-0478-0001
Fischer, Dale S. (C.D. Cal.) show/hide docs
EE-TX-0478-0003
Gould, Ronald Murray (Ninth Circuit) show/hide docs
EE-TX-0478-0004
Kavanaugh, Brett M. (D.C. Circuit, SCOTUS) show/hide docs
EE-TX-0478-0001
Miller, Gray Hampton (S.D. Tex.) show/hide docs
EE-TX-0478-9000
Sotomayor, Sonia (S.D.N.Y., Second Circuit, SCOTUS) show/hide docs
EE-TX-0478-0001
Steeh, George Caram III (E.D. Mich.) show/hide docs
EE-TX-0478-0004
Plaintiff's Lawyers Angelucci, Marc Etienne (California) show/hide docs
EE-TX-0478-0002 | EE-TX-0478-9000
Defendant's Lawyers Diederich, Bryan Russell (District of Columbia) show/hide docs
EE-TX-0478-9000
Gerardi, Michael J. (District of Columbia) show/hide docs
EE-TX-0478-9000
Lee, Lynn Y. (District of Columbia) show/hide docs
EE-TX-0478-9000

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