United States District Court, D. New Jersey
ELIZABETH KYLE-LABELL, on behalf of herself and all others similarly situated, Plaintiff,
SELECTIVE SERVICE SYSTEM, et al., Defendants.
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.
Selective Service System (“SSS”) and Donald M.
Benton's (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 and oral
arguments. For the following reasons Defendants' motion
is GRANTED-IN-PART and DENIED-IN-PART.
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)).
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
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).
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).
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).
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. (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).
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).
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).
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).
Federal Rule of Civil Procedure 12(b)(1)
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).
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).
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).
Federal Rule of Civil Procedure 12(b)(6)
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
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).
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).
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.
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).
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).
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).
Fitness of The Issues
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).
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
¶ 5). She asserts that her rights, and the rights of
similarly situated putative class members, are currently