National Coalition for Men v. Selective Ser

Case: 19-20272 Document: 00515525562 Page: 1 Date Filed: 08/13/2020

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

FILED
August 13, 2020
No. 19-20272 Lyle W. Cayce
Clerk

National Coalition for Men; James Lesmeister,
individually and on behalf of others similarly situated;
Anthony Davis,

Plaintiffs—Appellees,

versus

Selective Service System; Donald Benton, as Director
of Selective Service System,

Defendants—Appellants.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-3362

Before Wiener, Stewart, and Willett, Circuit Judges.
Per Curiam:
Plaintiffs-Appellees James Lesmeister, Anthony Davis, and the
National Coalition for Men sued Defendant-Appellants the Selective Service
System and its director (collectively, “the Government”) alleging that the
male-only military draft is unlawful sex discrimination. The district court
granted Plaintiffs-Appellees declaratory judgment, holding that requiring
only men to register for the draft violated their Fifth Amendment rights.
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No. 19-20272

Because that judgment directly contradicts the Supreme Court’s holding in
Rostker v. Goldberg, 453 U.S. 57, 78–79 (1981), and only the Supreme Court
may revise its precedent, we REVERSE.
I. Background
The Military Selective Service Act (the “Act”) requires essentially all
male citizens and immigrants between the ages of eighteen and twenty-six to
register with the Selective Service System, a federal agency, to facilitate their
conscription in the event of a military draft. 50 U.S.C. §§ 3802(a), 3809. Men
who fail to register or otherwise comply with the Act and its implementing
regulations may be fined, imprisoned, and/or denied federal benefits. Id.
§§ 3328, 3811(a), 3811(f). The Act does not require women to register. See
id. § 3802(a).
In 1980, President Carter recommended to Congress that the Act be
extended to cover women. See Rostker, 453 U.S. at 60 (citing House
Committee on Armed Services, Presidential Recommendations for Selective
Service Reform—A Report to Congress Prepared Pursuant to Pub. L. 96–
107, 96th Cong., 2d Sess., 20–23 (Comm. Print No. 19, 1980), App. 57–61).
Congress declined after “consider[ing] the question at great length” with
“extensive testimony and evidence.” Id. at 61, 72. In 1981, the Supreme
Court held in Rostker v. Goldberg that male-only registration did not violate
the Due Process Clause of the Fifth Amendment. Id. at 78–79. The court
based its reasoning on the fact that women were then barred from serving in
combat and deferred to Congress’s considered judgment about how to run
the military. See id. at 76–77.
Since then, the military has gradually integrated women into combat
roles. In the early 1990s, Congress repealed the statutory bans on women
serving on combat aircraft and ships. Pub. L. No. 103-160, § 541, 107 Stat.
1547, 1659 (1993), repealing 10 U.S.C. § 6015 (1988) (ships), Pub. L. No. 102-

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190, § 531, 105 Stat. 1290, 1365 (1991) (aircraft). In 2013, the Department of
Defense (“DoD”) announced its intention to open all remaining combat
positions to women, the last of which it opened in 2016.
Congress again considered male-only registration in the context of the
2017 National Defense Authorization Act. The Senate version of the bill
would have required women to register, S. 2943, 114th Cong. § 591 (as passed
by Senate, June 21, 2016), but the final law instead created a commission to
study the military Selective Service process to determine, among other
questions, whether the process was needed at all and, if so, whether to
conduct it “regardless of sex,” National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, §§ 551, 555, 130 Stat. 2000, 2130, 2135
(2016). The commission completed its report in March 2020. National
Commission on Military, National, and Public Service,
Inspired to Serve (2020), https://inspire2serve.gov/sites/default/
files/final-report/Final%20Report.pdf. The 2017 National Defense
Authorization Act also directed the Secretary of Defense to issue a report
addressing, inter alia, the benefits of the Selective Service System and the
impact on those benefits of requiring women to register, which the DoD
completed in 2017. Id. § 552, 130 Stat. at 2123.
Plaintiffs-Appellees sued the Government under 28 U.S.C. § 1983 for
violations of their Fifth Amendment rights to be free from sex discrimination.
On cross-motions, the district court granted summary judgment for
Plaintiffs-Appellees declaring that male-only registration was unlawful, but it
declined to issue an injunction. The court reasoned that Rostker no longer
controlled because women may now serve in combat. The Government
appeals, asserting that Rostker does control and that, regardless of Rostker,
male-only registration is still constitutional.

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II. Standard of Review
The facts are not in dispute, so we review de novo the district court’s
grant of summary judgment “to determine whether it was rendered
according to law.” United States v. Jesco Const. Corp., 528 F.3d 372, 374 (5th
Cir. 2008).
III. Analysis
In Rostker, the Supreme Court held that the male-only Selective
Service registration requirement did not offend due process. 453 U.S. at 78–
79. The Court relied heavily on legislative history showing that Congress
thoroughly considered whether to require women to register. See id. at 71–
72, 74, 76, 81–82. Congress, and thus the Court, believed the sole purpose of
registration to be the draft of combat troops in a national emergency. Id. at
75–76 (“Congress’ determination that the need would be for combat troops
if a draft took place was sufficiently supported by testimony adduced at the
hearings so that the courts are not free to make their own judgment on the
question.”). Women were then barred from combat, so the Court examined
the constitutional claim with those “combat restrictions firmly in mind.” Id.
at 77. The Court concluded, “This is not a case of Congress arbitrarily
choosing to burden one of two similarly situated groups. . . . Men 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.
Further, the Court rejected the district court’s conclusion that women could
be drafted in some number into noncombat positions without degrading the
military’s effectiveness, instead deferring to Congress’s determination that
the administrative and operational burdens of such an arrangement exceeded
the utility. Id. at 81–82.
That holding is controlling on this court. The Fifth Circuit is a “strict
stare decisis” court and “cannot ignore a decision from the Supreme Court

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unless directed to do so by the Court itself.” Ballew v. Cont’l Airlines, Inc.,
668 F.3d 777, 782 (5th Cir. 2012); Hernandez v. United States, 757 F.3d 249,
265 (5th Cir. 2014), adhered to in part on reh’g en banc, 785 F.3d 117 (5th Cir.
2015), vacated and remanded sub nom. Hernandez v. Mesa, 137 S. Ct. 2003
(2017). “[F]ollow[ing] the law as it is . . . respect[s] the Supreme Court’s
singular role in deciding the continuing viability of its own precedents.” Perez
v. Stephens, 745 F.3d 174, 180 (5th Cir. 2014).
The Supreme Court is clear on this point as well. In State Oil Co. v.
Khan, 522 U.S. 3, 22 (1997), the Court held that vertical maximum price
fixing was not per se unlawful, overruling Albrecht v. Herald Co., 390 U.S. 145
(1968). The Court disagreed with some of the reasoning in Albrecht but,
relevant to this case, also found that the facts on which Albrecht rested had
changed. State Oil Co., 522 U.S. at 14–19. For example, the procompetitive
potential of vertical maximum price fixing had become more evident since
Albrecht because other business arrangements that combined with vertical
maximum price fixing to help consumers were per se illegal at Albrecht’s time
but had since become more common. Id. at 14–15. Also, “the ban on
maximum resale price limitations declared in Albrecht in the name of ‘dealer
freedom’ ha[d] actually prompted many suppliers to integrate forward into
distribution, thus eliminating the very independent trader for whom Albrecht
professed solicitude.” Id. at 16–17 (quoting 8 P. Areeda, Antitrust
Law, ¶ 1635, p. 395 (1989)). The Court nevertheless noted that, “[d]espite
. . . Albrecht’s ‘infirmities, [and] its increasingly wobbly, moth-eaten
foundations,’ . . . [t]he Court of Appeals was correct in applying that
principle despite disagreement with Albrecht, for it is this Court’s prerogative
alone to overrule one of its precedents.” Id. at 20 (quoting Khan v. State Oil
Co., 93 F.3d 1358, 1363 (7th Cir. 1996)).
Here, as in State Oil Co., the factual underpinning of the controlling
Supreme Court decision has changed, but that does not grant a court of

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appeals license to disregard or overrule that precedent. See also Roper v.
Simmons, 543 U.S. 551, 594 (2005) (O’Connor, J., dissenting) (pointing out
that only the Supreme Court may overrule its precedents “even where
subsequent decisions or factual developments may appear to have
‘significantly undermined’ the rationale for [the] earlier holding” and
therefore the majority should have admonished the circuit court despite
affirming its judgment); Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application
in a case, yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which directly
controls, leaving to this Court the prerogative of overruling its own
decisions.”); Agostini v. Felton, 521 U.S. 203, 237, 239 (1997) (confirming rule
from Rodriguez de Quijas that lower courts may not “conclude [that] recent
cases have, by implication, overruled an earlier precedent”).
Plaintiffs-Appellees point to no case in which a court of appeals has
done what they ask of us, that is, to disregard a Supreme Court decision as to
the constitutionality of the exact statute at issue here because some key facts
implicated in the Supreme Court’s decision have changed. That we will not
do.
Rostker forecloses Plaintiffs-Appellees’ claims, so the judgment of the
district court is REVERSED and the case DISMISSED.

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