National Coalition for Men v. Selective Service System , 640 F. App'x 664 ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL COALITION FOR MEN and No. 13-56690
JAMES LESMEISTER, Individually and
on behalf of others similarly situated, D.C. No. 2:13-cv-02391-DSF-
MAN
Plaintiffs - Appellants,
v. MEMORANDUM*
SELECTIVE SERVICE SYSTEM and
LAWRENCE G. ROMO, as Director of
Selective Service System,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted December 8, 2015
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GOULD and BERZON, Circuit Judges, and STEEH,** Senior District
Judge.
The National Coalition for Men (“Coalition”) and James Lesmeister appeal
the district court’s dismissal of their suit against the Selective Service as unripe.
We reverse and remand for further proceedings.
1. “[S]ince ripeness is peculiarly a question of timing, it is the situation now
rather than the situation at the time of the District Court’s decision that must
govern.” Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 140 (1974). The
district court’s decision was largely premised on the fact that the Department of
Defense has been engaged in a multi-year process of integrating women into
formerly closed positions, and it was unclear the extent to which these positions
would be opened. Much of that uncertainty has passed: as the government has
noted, the Secretary of Defense recently announced that the military “intends to
open all formerly closed positions” to women.
Even if some uncertainty remains as to the full extent to which women will
end up serving in combat roles, that does not render the Coalition and Lesmeister’s
claims unripe. The ripeness inquiry asks whether there is a legitimate controversy
**
The Honorable George Caram Steeh III, Senior District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.
2
that is “fit for adjudication.” Assoc. of Am. Med. Colls. v. United States, 217 F.3d
770, 782 (9th Cir. 2000) (quoting Texas v. United States, 523 U.S. 296, 300
(1998)). Lesmeister and the Coalition point to numerous specific changes in
statutes, policies, and practices that have happened since the Supreme Court’s
decision in Rostker v. Goldberg, 453 U.S. 57 (1981). The Selective Service argues
that women’s roles in combat have not changed sufficiently to revisit Rostker. But
whether there has been sufficient change to revisit Rostker is a question about the
merits of the Coalition and Lesmeister’s claims, not about ripeness. We make no
comment on the merits of these claims, other than noting that they are “definite and
concrete, not hypothetical or abstract,” and so ripe for adjudication. Wolfson v.
Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010) (quoting Thomas v. Anchorage
Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000)).
2. For purposes of standing’s redressability inquiry, the injuries the Coalition
and Lesmeister allege could be addressed either by extending the burden of
registration to women or by striking down the requirement for men. When a court
sustains an equal protection challenge to a statute, “it may either declare the statute
a nullity . . . or it may extend the coverage of the statute.” Heckler v. Mathews,
465 U.S. 728, 738 (1984) (quoting Welsh v. United States, 398 U.S. 333, 361
3
(1970) (Harlan, J., concurring in the result)); see also Levin v. Commerce Energy,
Inc., 560 U.S. 413, 426-27 (2010) (“How equality is accomplished—by extension
or invalidation of the unequally distributed benefit or burden, or some other
measure—is a matter on which the Constitution is silent.”). We express no view as
to which remedy might ultimately be appropriate. But we note the Selective
Service is wrong to argue that the Coalition and Lesmeister lack standing because
their alleged equality injuries would not be redressed if the burdens they challenge
were extended to women.
3. We decline otherwise to address the Selective Service’s standing
argument. The remaining challenges to standing are premised on alleged
deficiencies in the complaint. The district court did not address these alleged
deficiencies. A full consideration of the case-specific standing issues may benefit
from amendment of the complaint and factual development. See, e.g., Hayes v.
County of San Diego, 736 F.3d 1223, 1229 (9th Cir. 2013); Friery v. L.A. Unified
Sch. Dist., 448 F.3d 1146, 1150 (9th Cir. 2006).
We remand for the district court to consider the questions of standing other
than the one we have addressed, and, if it has jurisdiction, the merits of the case.
REVERSED and REMANDED.
4