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GOLDBERG v. ROSTKER

July 18, 1980

Robert L. GOLDBERG et al.
v.
Bernard ROSTKER et al.



The opinion of the court was delivered by: CAHN

 I. PRELIMINARY STATEMENT

 Before this three-judge court is the issue of the constitutionality of the selective service registration of males only, as provided for in the Military Selective Service Act, 50 U.S.C.App. § 451 et seq. (hereafter MSSA). In preliminary proceedings we set forth the history of this case, Goldberg v. Tarr, -- - F. Supp. -- , No. 71-1480 (E.D.Pa. Feb. 19, 1980). *fn1" We will not repeat it here. In that opinion we identified plaintiffs' constitutional argument as follows:

 
Their rights to equal protection of the law, as that concept is included in the due process clause of the Fifth Amendment, are violated in that males only are subject to registration for the draft, and therefore there is an increased probability of the male plaintiffs actually being inducted because the pool of draft eligibles is decreased by the exclusion of females.

 Goldberg v. Tarr, supra, at -- . Plaintiffs allege that they are harmed as a result of a gender classification that cannot be justified under applicable standards of constitutional review.

 Subsequent to our opinion, Goldberg v. Tarr, supra, we granted the unopposed motion of Owen F. Jones to intervene as a party-plaintiff in this action. *fn2"

 The parties have submitted a five volume Joint Documentary and Stipulated Record and filed extensive briefs. *fn3" On July 1, 1980, at oral argument, we granted plaintiffs' motion for class certification under Fed.R.Civ.P. 23(b)(2). *fn4" The class has been defined to include all male persons who are registered or subject to registration under 50 U.S.C.App. § 453 or are liable for training and service in the armed forces of the United States under 50 U.S.C.App. §§ 454, 456(h) and 467(c).

 The following legislative and executive actions have occurred after the filing of defendants' motion for summary judgment which was the subject of our opinion in Goldberg v. Tarr, supra. *fn5" The President and representatives of the military services and the Selective Service System recommended reinstatement of selective service registration, with an amendment of the MSSA to allow the inclusion of females in that registration. *fn6" The recommendation to amend the MSSA to eliminate the exclusion of females was defeated. However, the House and Senate passed Joint Resolution 521 on June 12, 1980, which allocated $ 13,285,000 for salaries and expenses of the Selective Service System for the fiscal year ending September 30, 1980. This appropriation was to allow renewal of all-male selective service registration. On June 16, 1980, the Selective Service System promulgated new regulations setting forth revised procedures for registration. 45 Fed.Reg. 40577 (June 16, 1980). Joint Resolution 521 was signed by President Carter on June 28, 1980. On July 2, 1980, President Carter issued Presidential Proclamation No. 4771, providing for the commencement of selective service registration on July 21, 1980. 45 Fed.Reg. 45247 (July 2, 1980). Under the Proclamation and regulations, males born in 1960 must register during the week of July 21, 1980, at a United States Post Office. During the following week all males born in 1961 must register. There are approximately four million male citizens who were born in 1960 and 1961. No further registrations have been been ordered at this time.

 II. JURISDICTION

 Defendants argue that this court has no jurisdiction to adjudicate the claims of the plaintiffs because plaintiffs lack standing and the case is not ripe for review. We now consider these contentions. *fn7"

 A. STANDING

 To establish standing to bring this action plaintiffs must demonstrate that they face a distinct and palpable injury with a fairly traceable causal connection to the challenged conduct. Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 98 S. Ct. 2620, 57 L. Ed. 2d 595 (1978). In Duke Power the plaintiffs were a group of residents of areas near two nuclear power plants which were under construction. Plaintiffs challenged the constitutionality of a federal statute which limited the aggregate liability of the plant operators to $ 560 million per nuclear "incident." The Court considered the potential effect of the operation of the two plants to be built, and determined that the threat of prospective environmental and thermal pollution to two lakes in the vicinity was sufficient to meet the "injury in fact" requirement of the standing test. Evidence that the plants would not have been built without the limitation on liability supplied the "causal connection." The Court held that it was not necessary for pollution to enter the environment before the plaintiff had standing.

 Similarly, the Court has held that plaintiffs had standing in cases where the alleged injury was even more attenuated than that in Duke Power. See United States v. SCRAP, 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973) (law students had standing to oppose regulations which could result in increased litter in parks which they used). See also Americans United for the Separation of Church and State, Inc. v. H. E. W., 619 F.2d 252 (3d Cir. 1980).

 In the instant case the harm to the plaintiffs is neither remote nor hypothetical. Those members of the class born in 1960 and 1961 are under compulsion of law to present themselves for registration with the Selective Service System (Selective Service) between July 21, 1980, and August 4, 1980: Presidential Proclamation No. 4771, 45 Fed.Reg. 45247 (July 2, 1980). The MSSA provides:

 
Any person who ... evades or refuses registration or service in the armed forces or any of the requirements of this title ... or who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title, or rules, regulations, or directions made pursuant to this title ... shall, upon conviction ... be punished by imprisonment for not more than five years or a fine of not more than $ 10,000, or by both such fine and imprisonment....

 50 U.S.C.App. § 462.

 Thereafter these registrants are under a continuing obligation to inform Selective Service of any changes of address, and to maintain proof of registration. 45 Fed.Reg. 49,577 (June 16, 1980); 32 C.F.R. § 1641. In addition, the statute requires that:

 
Each registrant shall be immediately liable for classification and examination, and shall, as soon as practicable following his registration, be so classified and examined, both physically and mentally, in order to determine his availability for induction for training and service in the Armed Forces.

 50 U.S.C.App. § 454(a). Those members of the plaintiff class who registered before April 1, 1975, are under a current legal obligation to maintain their registration and report their changes of residence to the Selective Service. *fn8" Those plaintiffs already registered are subject to potential reclassification and induction into the armed services.

 In this factual context it is clear that the class has standing to raise the issue before us. However, in analyzing these issues it becomes evident that the class contains three subclasses of individuals, one of which does not have standing.

 
1. Those individuals registered with the Selective Service System before Presidential Proclamation No. 4360 terminated registration on April 1, 1975, and who remain liable for involuntary training and service.
 
2. Those individuals required to register with the Selective Service System between July 21, 1980, and August 4, 1980.
 
3. Those individuals who have never been registered with the Selective Service System and are not under any compulsion to register in the near future.

 Because we find that registration itself and the continuing obligations placed on registrants under both the old and new selective service regulations are a sufficient intrusion on an individual's rights, the members of the first two subclasses have standing in this case. However, we find no distinct and palpable harm nor imminent threat of concrete harm to the third subclass of individuals sufficient to establish standing in the instant case. Therefore, in the order accompanying this opinion we will redefine the class to exclude this third subclass.

 We are convinced that class plaintiffs, as they will now be defined, have "alleged such a personal stake in the outcome of the controversy so as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962).

 The causal connection between the current and imminent aspect of the alleged harm and the allegedly unconstitutional legislation is direct and requires no difficult factual inquiry. The statute attacked is the statute which imposes the burdens on plaintiffs.

 B. RIPENESS

 The ripeness inquiry involves two steps: first, we must determine if there is a "case or controversy" before the court within the meaning of Article III of the Constitution; second, we must examine prudential reasons for accepting or declining jurisdiction at this time, considering whether " "we will be in no better position later than we are now' to decide this question." Duke Power Company v. Carolina Environmental Study Group, Inc., supra at 82, 98 S. Ct. at 2635, quoting in part, Regional Rail Reorganization Act Cases, 419 U.S. 102, 143-144, 95 S. Ct. 335, 358-359, 42 L. Ed. 2d 320 (1974).

 Addressing the "case or controversy" requirement in Duke Power the Court said:

 
Our conclusion that appellees will sustain immediate injury from the operation of the disputed power plants and that such injury would be redressed by the relief requested would appear to satisfy this requirement.

 438 U.S. at 81, 98 S. Ct. at 2634. Similarly in the instant case our finding that plaintiffs suffer current or imminent harm satisfies the constitutional requirement that plaintiffs present a live case or controversy to ...


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