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Kyle-Labell v. Selective Service System

United States District Court, D. New Jersey

March 5, 2019

ELIZABETH KYLE-LABELL, on behalf of herself and all others similarly situated, Plaintiff,


          Esther Salas, U.S.D.J.

         Plaintiff Elizabeth Kyle-LaBell (“Plaintiff”) is a 21-year-old female who wants to register for the military draft. She believes it is her right and duty as a United States citizen to do so, but because she is a woman, she is prohibited from registering. She brings this putative class action to challenge the constitutionality of the draft's male-only requirement. The Court has subject matter jurisdiction under 28 U.S.C. § 1331.

         Defendants Selective Service System (“SSS”) and Donald M. Benton's[1] (together, “Defendants”) moved to dismiss Plaintiff's Second Amended Complaint (D.E. No. 54 (“SAC”)) under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (D.E. No. 80). The Court has considered the parties' submissions[2] and oral arguments. For the following reasons Defendants' motion is GRANTED-IN-PART and DENIED-IN-PART.

         I. Background

         A. Factual Background

         The Military Selective Service Act, 50 U.S.C. § 3801, et seq. (“MSSA”) provides in relevant part that

it shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder.

50 U.S.C. § 3802. “The MSSA established a plan for maintaining ‘adequate armed strength . . . to insure the security of [the] Nation.'” Rostker v. Goldberg, 453 U.S. 57, 75 (1981) (quoting 50 U.S.C. App. § 451(b)). “Registration is the first step ‘in a united and continuous process designed to raise an army speedily and efficiently. . . .'” Id. (quoting Falbo v. United States, 320 U.S. 549, 553 (1944)). “Congress provided for the reactivation of registration in order to ‘provid[e] the means for the early delivery of inductees in an emergency.'” Id. (quoting S. Rep. No. 96-826, at 156 (1980)).

         In Rostker, the Supreme Court concluded that “Congress acted well within its constitutional authority when it authorized the registration of men, and not women, under the [MSSA].” Id. at 83. Particularly, the Court found that “[m]en and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft.” Id. at 78-79 (“The Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality.”).

         Plaintiff asserts that women are no longer restricted from serving in combat roles, and as a result, the MSSA is now unconstitutional. (See generally SAC). Plaintiff has attempted to register for the draft at least twice. (See Id. ¶ 5). Each time, Plaintiff visited the SSS website and indicated on an online form that she was female. (See Id. ¶¶ 9-11). When Plaintiff “clicked ‘Female' on the top line of the online registration form, she was prevented from registering . . . .” (Id. ¶ 10). Plaintiff states that she will “continue to try to register” for the draft because she believes it is her “right and duty” as a U.S. citizen. (Id. ¶ 12).

         Plaintiff brings this action on behalf of a putative class consisting of over 15 million members. (Id. ¶¶ 26-28). Plaintiff alleges that the MSSA creates an unlawful sex-based categorization that violates her and the putative class members' equal-protection and substantive-due-process rights under the Fifth Amendment, because the MSSA (i) requires males and not females to register, and (ii) forbids females from registering. (See, e.g., id. ¶¶ 2, 29, 59 & 67). She asserts that “[t]his archaic exclusionary policy sends a message to all U.S. citizens and institutions that women are not capable of shouldering the responsibilities of citizenship to the same extent as men.” (Id. ¶ 68).

         Plaintiff seeks a declaratory judgment that the MSSA's draft registration is unconstitutional. (Id. ¶ 13). Plaintiff also seeks (i) to enjoin Defendants from registering only males; or (ii) to require that females register with the SSS; or (iii) to require that registration be voluntary for both sexes. (See Id. ¶ 14).

         B. Procedural Background

         On July 3, 2015, Allison Marie Kyle initiated this action on behalf of her then minor daughter, Plaintiff. (See D.E. No. 1). On October 22, 2015, Plaintiff filed her first amended complaint.[3] (D.E. No. 26). Defendants then moved to dismiss for lack of standing and lack of ripeness under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (D.E. No. 33).

         On June 29, 2016, the Court terminated Defendants' motion and ordered supplemental submissions regarding relevant Congressional activity. (D.E. No. 48). On September 29, 2016, Plaintiff filed a Second Amended Complaint which added Plaintiff as the named Plaintiff, while removing Plaintiff's mother. (See SAC). On December 21, 2016, the parties reported recent Congressional activities involving the MSSA, including the creation of the National Commission on Military, National, and Public Service (the “Commission”). (D.E. No. 57).

         Plaintiff then filed a Motion to Continue the Proceedings, seeking to resume the litigation (D.E. No. 58). On July 27, 2017, the Court granted the motion and permitted Defendants to renew their motion to dismiss on the issue of standing only. (D.E. No. 61). The parties then briefed the standing issue (D.E. Nos. 69-71), and on March 29, 2018, the Court denied Defendants' motion without prejudice, finding that Plaintiff had standing. (See D.E. No. 73).

         Plaintiff then sought leave to file a request for certification of the putative class and a motion for summary judgment. (D.E. Nos. 74-76). On April 18, 2018, the Court denied this request and permitted Defendants to renew their motion to dismiss under Rule 12(b)(1) for lack of ripeness and under Rule 12(b)(6) for failure to state a claim. (D.E. No. 77). Subsequently, the parties briefed the instant motion, (see D.E. Nos. 80-82), and the Court held oral argument on December 4, 2018, (D.E. No. 87).

         II. Legal Standard

         A. Federal Rule of Civil Procedure 12(b)(1)

         A motion to dismiss for lack of ripeness is properly brought pursuant to Federal Rule of Civil Procedure 12(b)(1) because ripeness is a jurisdictional matter. NE Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 (3d Cir. 2001) (citing Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 734 (1997)). A party bringing a motion under Rule 12(b)(1) may assert either a “facial or factual challenge to the court's subject matter jurisdiction.” See Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).

         In a facial attack, the moving party “challenges subject matter jurisdiction without disputing the facts alleged in the complaint.” Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack “requires the court to consider the allegations of the complaint as true.” See Id. (citation and internal quotation marks omitted). “Thus, a facial attack calls for a district court to apply the same standard of review it would use in considering a motion to dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor of the nonmoving party.” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014); In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 633 (3d Cir. 2017).

         In a factual attack, the moving party “attacks the factual allegations underlying the complaint's assertion of jurisdiction, either through the filing of an answer or ‘otherwise presenting competing facts.'” Davis, 824 F.3d at 346 (quoting Constitution Party of Pa., 757 F.3d at 358) (alteration omitted). “In contrast to a facial challenge, a factual challenge allows a court to weigh and consider evidence outside the pleadings.” Id. (citation and internal quotation marks omitted).

         B. Federal Rule of Civil Procedure 12(b)(6)

         To withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         “In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). But a limited exception exists for “document[s] integral to or explicitly relied upon in the complaint.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). “The purpose of this rule is to avoid the situation where a plaintiff with a legally deficient claim that is based on a particular document can avoid dismissal of that claim by failing to attach the relied upon document.” Jeffrey Rapaport M.D., P.A. v. Robins S. Weingast & Assocs., Inc., 859 F.Supp.2d 706, 714 (D.N.J. 2012).

         III. Discussion

         Defendants raise three main arguments. Defendants first contend that Plaintiff's Complaint should be dismissed, or held in abeyance, on prudential ripeness grounds because Congress has created the Commission to conduct a full review of the SSS. (Defs.' Mov. Br. at 12). Defendants next argue that the Supreme Court's decision in Rostker controls the outcome of this case, and since only the Supreme Court can overturn itself, Plaintiff's claims must be dismissed. (Id. at 19). Finally, Defendants contend that Plaintiff's substantive due process claim is a request for equal treatment, which should be analyzed under the equal protection framework. (Id. at 24).

         As discussed in detail below, the Court finds that A) Plaintiff's claims are prudentially ripe; B) the substantive due process claim is subsumed by the equal protection claim; and C) Rostker does not bar Plaintiff's equal protection claim.

         A. Prudential Ripeness

         Defendants contend that Plaintiff's Complaint should be dismissed, or held in abeyance, on prudential ripeness grounds. (See Id. at 12; Defs.' Reply at 5; see also Tr. 2:5-10; 7:9-17, Dec. 4, 2018).

         “[R]ipeness is peculiarly a question of timing.” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985). “The ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 808 (2003). “At its core, ripeness works ‘to determine whether a party has brought an action prematurely and counsels abstention until such a time as a dispute is sufficiently concrete to satisfy the constitutional and prudential requirements of the doctrine.'” Plains All Am. Pipeline L.P. v. Cook, 866 F.3d 534, 539 (3d Cir. 2017) (quoting Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir. 2003)) (internal ellipsis removed).

         Prudential ripeness is a tool a court may employ when the “case will be better decided later and that the parties will not have constitutional rights undermined by the delay.” Simmonds v. I.N.S., 326 F.3d 351, 357 (2d Cir. 2003). To determine whether a case is prudentially ripe, courts “generally examine: ‘(1) the fitness of the issues for judicial decision, and (2) the hardship to the parties of withholding court consideration.'” See, e.g., Khodara Envtl., Inc. v. Blakey, 376 F.3d 187, 196 (3d Cir. 2004) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)); see also Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167 (2014).[4]

         1. Fitness of The Issues

          For the fitness prong, “[t]he principal consideration is whether the record is factually adequate to enable the court to make the necessary legal determinations. The more that the question presented is purely one of law, and the less that additional facts will aid the court in its inquiry, the more likely the issue is to be ripe, and vice-versa.” Artway v. Attorney Gen. of State of N.J., 81 F.3d 1235, 1249 (3d Cir. 1996).

         Here, the question before the Court-whether the MSSA's sex-based classification violates Plaintiff's constitutional rights-is purely a legal one, which is present, ongoing, and traditionally the type of issue handled by the courts. See, e.g., Baker v. Carr, 369 U.S. 186, 226 (1962) (noting that standards under equal protection “are well developed and familiar”). Plaintiff alleges that she has attempted to register at least twice, and each time Defendants applied the MSSA to bar her from doing so only because of her sex. (See SAC ΒΆ 5). She asserts that her rights, and the rights of similarly situated putative class members, are currently ...

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