ROSEMARIE T. RING (SBN 220769)
MUNGER, TOLLES & OLSON LLP
2 560 Mission Street, 27th Floor
San Francisco, CA 94105-2907 3 Tele~hone: (415) 512-4000
FacsImile: (415) 512-4077
4 Email: rose.ring@mto.com

5 MARGARET C. CROSBY (SBN 56812)

ELIZABETH O. GILL (SBN 218311)

6 AMERICAN CIVIL LIBERTIES UNION FOUNDATION

OF NORTHERN CALIFORNIA. INC.

7 39 Drumm Street

"

San Francisco, CA 94111

8 Tele~hone: (415) 621-2493

FaCSImile: (415) 255-8437

9 Email: mcrosby((iJ,aclunc. org

Email: egill@acTunc.org

10

Attorneys for Plaintiffs

11

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

15 MARY JENNINGS HEGAR, JENNIFER HUNT, ALEXANDRA ZOE BEDELL,
16 COLLEEN FARRELL, AND SERVICE WOMEN'S ACTION NETWORK,
17 Plainti ffs,
18 v.
19 LEON PANETTA, Secretary of Defense,
20 Defendant.
21

CASE NO.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

22

23

24

25

26

27

28

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ __

1

Plaintiffs Mary Jennings Hegar, Jennifer Hunt, Alexandra Zoe Bedell, Colleen

2 Farrell, and Service Women's Action Network allege as follows:

3

INTRODUCTION

4

l. The Plaintiffs in this action challenge as unconstitutional the official policy

5 of the Department of Defense ("DoD") that categorically excludes them, and all women,

6 from assignment to units whose primary mission is to engage in direct ground combat

7 (hereinafter "combat exclusion policy''). As a result of this policy, women are barred

8 from more than 238,000 positions across the Armed Forces, including all infantry

9 positions, and from certain military occupational specialties and training schools. No

10 United States statute requires this categorical exclusion of women. Instead, the DoD has

11 itselfdecided to close these positions to servicewomen solely because they are women.

12

2. The combat exclusion policy is based on outdated stereotypes of women and

13 ignores the realities of the modern military and battlefield conditions. Women make up

14 an increasingly significant percentage of the Armed Forces, with more than 280,000

15 having served in Iraq and Afghanistan alone. The battlefields in Iraq and Afghanistan

16 lack any clear boundaries or front lines, and the demands of these wars on the ground

17 have required participation from troops across the Armed Forces. In addition, the unique

18 circumstances and demands of fighting in Iraq and Afghanistan have led to a greater need

19 for women on the ground. As a result, servicewomen across the Armed Forces, including

20 the Plaintiffs, have risked their lives and continue to risk their lives serving in combat in

21 our nation's active theatres of war.

22

3. Servicewomen across the Armed Forces are harmed by the combat

23 exclusion policy in a variety of ways. Those already serving in combat are not only

24 barred from formal assignment to combat arms positions for which they have already

25 proven themselves suited, but they are also denied the official recognition they need to

26 advance their careers. They are prohibited from applying to certain schools, such as

27 infantry schools, further limiting their potential for career advancement. Moreover, even

28 though women are already serving in combat, the policy creates a presumption that

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ __

women are not serving in eombat, whieh further disadvantages women compared to men,

2 even as veterans. The combat exclusion policy sends a clear message to the world that

3 women are not capable of serving their country to the same extent as men.

4

4. The U.S. Supreme Court has made it clear that governmentally-mandated

5 discrimination based on sex is unconstitutional unless it is supported by an "exceedingly

6 persuasive" justification that is "substantially related" to "important governmental
7 objectives." us. v. Virginia, 518 U.S. 515, 533 (1996). Any such justification must be

8 genuine, not hypothetical, and cannot rely on "overbroad generalizations about the

9 different talents, capacities, or preferences of males and females." ld. The DoD's policy

10 of categorically excluding women from certain combat positions, regardless of their

11 individual qualifications and capacities, does not and cannot meet this exacting standard.

12

5. The DoD's policy is one of the last vestiges of federal dejure discrimination

13 against women. Nearly a century after women first earned the right of suffrage, the

14 combat exclusion policy still denies women a core component of full citizenship-serving

15 on equal footing in the military defense of our nation. Plaintiffs respectfully ask this

16 Court to: (1) declare that the DoD's combat exclusion policy is unconstitutional and

17 violates Plaintiffs' rights to equal protection of the laws under the Due Process Clause of

18 the Fifth Amendment; and (2) enjoin the DoD from enforcing the combat exclusion policy

19 in the future.

20

JURISDICTION

21

6. This Court has original jurisdiction under 28 U.S.C. § 1331 because

22 Plaintiffs' claims arise from and under the U.S. Constitution, as set forth herein.

23

INTRADISTRICT ASSIGNMENT

24

7. The challenged policy is enforced, and the impact of it is felt, throughout the

25 Northern District of California, including in Contra Costa County and Monterey County,

26 where the DoD maintains several bases, such as Camp Parks in Dublin and Fort Hunter

27 Liggett in Monterey County.

28

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ __

1

PARTIES

2

8. The Plaintiffs are individual servicewomen, each acting in her own

3 individual capacity, and the Service Women's Action Network, a nonprofit organization

4 that supports. defends, and empowers servicewomen and veterans.

5

9. All ofthe individual Plaintiffs have served in Afghanistan and/or Iraq. Two

6 were assigned to units in Female Engagement Teams ("FETs") in the Marines. These

7 teams were created by the Marines for the express purpose of allowing female Marines to

8 serve alongside all-male infantry units, with the primary goal of engaging with Afghan

9 civilians, particularly Afghan women.

10

10. Two of the Plaintiffs were awarded the Purple Heart after being wounded

11 while serving in combat. Two received medals in recognition of their combat service-

12 the Air Force Combat Action Medal and the Army Combat Action Badge. One earned a

13 Distinguished Flying Cross with a Valor Device for extraordinary achievement and

14 heroism while engaging in direct ground fire with the enemy after being wounded when

15 her helicopter was shot down over Afghanistan.

16 Major Mary Jennings Hegar

17

11. Plaintiff Major Mary Jennings Hegar is a combat helicopter pilot currently

18 serving as an Air Guardsman for the California Air National Guard based in Mountain

19 View, California. She served three tours over two deployments in Afghanistan.

20

12. In December of 1999, Major Hegar was commissioned in the Air Force,

21 where she served for five years as a maintenance officer. She subsequently spent six

22 years in the Air National Guard, where she trained as a pilot. In her final tour in

23 Afghanistan, Major Hegar flew several medevac missions in extremely dangerous combat

24 conditions, taking direct fire on almost a daily basis.

25

l3. In order to qualify to fly over enemy territory in Afghanistan, Major Hegar

26 successfully completed a grueling training program called Survival, Evasion, Resistance,

27 and Escape ("SERE") training. SERE training is widely regarded as one of the most

28 physically and mentally demanding forms of training offered to military personnel. To

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ __

complete this training, Major Hegar was placed in command of half of the class

2 participants and was required to hike over mountainous terrain carrying heavy gear, in

3 addition to other physically and mentally arduous tasks. Major Hegar also achieved

4 expert marksman status in hoth of her service weapons (handgun and rifle).

5

14. As a result of her rescue missions, Major Hegar was involved in ground

6 combat. In July 2009, when she was a captain, her aircraft was shot down by enemy fire

7 over Afghanistan, as she and her crew were evacuating three injured soldiers. Major

8 Hegar was injured by a bullet that penetrated the helicopter and, once on the ground, she

9 returned fire and successfully completed the rescue mission under fire. As a result of this

10 incident, Major Hegar was awarded the Purple Heart and the Distinguished Flying Cross

11 with a Valor Device, two of the highest decorations possihle for a pilot. The citation

12 accompanying her Distinguished Flying Cross emphasized her "outstanding heroism and

13 selfless devotion to duty." Within a week ofheing shot down, Major Hegar and her crew

14 were returned to flying status to resume their medevac missions.

15

15. Despite Major Hegar's SERE training, her success as a comhat pilot, and

16 her recognized valor in ground combat, the combat exclusion policy bars her categorically

17 from competing for certain combat positions. If she were not barred from these positions,

18 Major Hegar would seek to cross-train for a ground combat position, which would be

19 advantageous for her career. Because she is automatically excluded from even applying

20 for such positions based on her sex, Major Hegar is transitioning out of the Air National

21 Guard and into a Reservist Liaison position.

22 Staff Sergeant Jennifer Hunt

23

16. Plaintiff Staff Sergeant Jennifer Hunt is a noncommissioned officer in the

24 United States Army Reserves. Staff Sergeant Hunt enlisted in the United States Army

25 Reserves in 2001, in the wake of the September 11 attacks on the United States. She

26 currently serves in the Civil Affairs Military Occupational Specialty.

27

17. Staff Sergeant Hunt deployed to Afghanistan in August 2004 with a unit

28 engaged in provincial reconstruction. In addition to her regular duties as a Civil Affairs

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ __

Specialist, which involved coordinating civil-military operations, Staff Sergeant Hunt also

2 was called upon to accompany male combat anns soldiers on "door-kicking missions,"

3 searching villages for insurgents. During these missions, Staff Sergeant Hunt served,

4 usually as the only woman, alongside male combat arms soldiers; they were dropped off

5 together by helicopter in the mountains, and they wore the same body armor and carried

6 the same weapons. After completing this deployment successfully, Staff Sergeant Hunt

7 returned to the United States in July 2005.

8

18. In August 2007, Staff Sergeant Hunt deployed to Iraq with a unit engaged in

9 reconstruction projects. While in Iraq, Staff Sergeant Hunt's Humvee vehicle was hit by

lOan Improvised Explosive Device ("lED"), causing shrapnel injuries to her face, anns, and

11 back. Staff Sergeant Hunt was awarded a Purple Heart in connection with this attack.

12 After completing her deployment, she returned to the United States in May 2008.

13

19. The combat exclusion policy made it difficult, and continues to make it

14 difficult, for Staff Sergeant Hunt to serve our nation to the best of her abilities. Although

15 she has served in the same roles as male combat soldiers, Staff Sergeant Hunt was not

16 officially part of the all-male combat arms units she accompanied on missions in

17 Afghanistan. She did not have the opportunity to train with them, learn their standard

18 operating procedures, acclimate to unit leadership, and obtain mission-specific training.

19 As a result, although Staff Sergeant Hunt was able to overcome these disadvantages, she

20 and the combat arms units she served with were endangered by the operation of the

21 combat exclusion policy.

22

20. In addition, Staff Sergeant Hunt's career options have been significantly

23 limited by the combat exclusion policy. Because of the policy, Staff Sergeant Hunt could

24 not even apply to attend combat leadership schools that are closed to women, and she is

25 categorically excluded from positions that often enhance a soldier's chances for

26 promotion to First Sergeant and Sergeant Major. Her service in combat situations is not

27 recognized to the same degree as that of the male combat arms soldiers with whom she

28 served, because under the policy her combat experience was necessarily "unofficial."

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ __

1 Together, these effeets of the combat exclusion policy put Staff Sergeant Hunt at a

2 disadvantage in her chances for career progression compared with male soldiers.

3

21. Staff Sergeant Hunt is interested in competing for opportunities to serve

4 directly with combat units in positions that are currently closed to women, as well as

5 training opportunities that are closed or restricted for women. If the combat exclusion

6 policy were lifted, she would have the opportunity to pursue these interests.

7 Captain Alexandra Zoe Bedell

8

22. Plaintiff Captain Alexandra Zoe Bedell was commissioned as an officer in

9 the Marine Corps in 2007 and assigned to the Military Occupational Specialty of Logistics

10 Officer. While serving on active duty, she deployed twice to Afghanistan out of Marine

11 Corps Base Camp Pendleton in California. She is currently a captain in the United States

12 Marine Corps Reserves.

13

23. After commissioning, Captain Bedell graduated with honors from The Basic

14 School, which is the first phase of Marine Corps officer training. This means that she

15 ranked in the top 10% of her class of approximately 300 Marines for the twenty-six week

16 course, which includes training on weapons, tactics, leadership, and other skills.

17

24. Although she succeeded in Marine Corps officer training, Captain Bedell

18 was barred, solely because she is a woman, from competing for assignment to a combat

19 arms military occupational specialty ("MOS"), such as the infantry. Instead, she became a

20 Logistics Officer, an occupational specialty in the Marine Corps that is open to women.

21 Had combat arms MOS's, including the infantry, been open to women in the Marine

22 Corps, Captain Bedell would have pursued them, because she viewed those jobs as

23 encompassing the core mission of the Marine Corps.

24

25. Captain Bedell first deployed to Afghanistan in 2009 as a lieutenant, where

25 she served as her unit's Current Operations Officer, overseeing all logistical support for a

26 Marine Regimental Combat Team. As a collateral duty, she also oversaw the unit's

27 Female Engagement Teams ("FETs").

28

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ __

1

26. Captain Bedell deployed again to Afghanistan in 2010, and on this

2 deployment, she served full-time as the Officer-in-Charge of the First Marine

3 Expeditionary Force Female Engagement Team, in which capacity she trained and

4 deployed 46 Marines to serve as FET members in direct support of the division's infantry

5 regiments and the battalion units underneath it.

6

27. On both of Captain Bedell's deployments, FET members lived and worked

7 with the male infantry Marines with whom they served. They lived in the same conditions

8 and managed the lack of privacy in the combat outposts and small patrol bases where they

9 were located for extended periods of time. In providing support to the combat operations

10 of the infantrymen, including participating in daily patrols, FET members wore the same

11 body armor as the infantrymen, carried the same weapons as the infantrymen, and, along

12 with infantrymen, regularly encountered ground combat.

13

28. The combat exclusion policy interfered with Captain Bedell's ability as

14 Officer-in-Charge of the FET program to fulfill her mission of providing support to

15 combat and counterinsurgency operations. In Captain Bedell's experience, while the

16 combat commanders on the ground were generally supportive of women Marines and

17 fully appreciated the additional troops, some FET missions were cancelled because

18 higher-ranking officers were concerned that sending women on missions in which they

19 were likely to encounter ground combat could run afoul of the DoD's combat exclusion

20 policy.

21

29. Based on the same concern about violating the DOD's combat exclusion

22 policy, Marine commanders required all FET members to return (or, in military parlance,

23 "reset") to their main forward operating base (Leatherneck) every 45 days. This artificial

24 and unnecessary maneuver disrupted operations and put both men and women serving in

25 and supporting these units in danger. To accommodate the policy, the women Marines

26 were forced to travel to and from the base on dangerous roads, and they were often taken

27 out of crucial missions, sometimes for a week's time.

28

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ __

1

30. Captain Bedell left active duty in August 2011 in part because the DoD's

2 combat exclusion policy restricted her assignments based on her gender, rather than her

3 proven ability and performance. In addition, she knew that, because of the DoD's policy,

4 the combat leadership experience she gained during her deployments could not be

5 considered for promotion decisions in the same way it would be if she were a male

6 Marine, because "officially" she had never served in a ground combat unit.

7 First Lieutenant Colleen Farrell

8

3l. Plaintiff First Lieutenant Colleen Farrell is an active duty officer in the

9 United States Marine Corps, currently stationed at Marine Base Camp Pendleton in

10 California. She was commissioned in 2008 and was assigned the position of Air Support

11 Control Officer. First Lieutenant Farrell deployed to Afghanistan in 2010, where she

12 served as team leader of her unit's FETs.

13

32. First Lieutenant Farrell was stationed in Afghanistan from September 2010

14 until April 2011, during which she and between 12 and 20 FET members she supervised

15 went on missions and patrols with the male infantry Marines, performing outreach with

16 Afghan civilians, particularly Afghan women. Like the infantrymen with whom they

17 served, First Lieutenant Farrell and the women in her charge were regularly in danger of

18 drawing enemy fire, being ambushed, or hit by IEDs. Three teams of women Marines

19 under First Lieutenant Farrell's charge were awarded Combat Action Ribbons for

20 receiving and returning fire. In 2012, First Lieutenant Farrell served as the Executive

21 Officer (second-in-command) for another group ofFETs, preparing them for deployment

22 and coordinating with the infantry troops the FETs would be supporting.

23

33. The combat exclusion policy made it difficult for First Lieutenant Farrell

24 and the women in her charge to perform in their assigned positions. Out of concern about

25 violating the DOD's combat exclusion policy, Marine commanders required all FET

26 members to return (or, in military parlance, "reset") to their main forward operating base

27 (Leatherneck) every 45 days. This artificial and unnecessary maneuver disrupted

28 operations and put both men and women serving in and supporting these units in danger.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ _ __

1 To accommodate the policy, the women Marines were forced to travel to and from the

2 base on dangerous roads, and they were often taken out of crucial missions, sometimes for

3 a week's time.

4

34. If First Lieutenant Farrell were to deploy again, she would be subject to the

5 same or similar interruptions of operations stemming from the combat exclusion policy.

6 Service Women's Action Network (SWAN)

7

35. Plaintiff Service Women's Action Network (SWAN) is a nonpartisan,

8 nonprofit organization that supports, defends, and empowers service women and women

9 veterans through advocacy initiatives and community programs. Its mission includes

10 transforming military culture by securing equal opportunity and freedom to serve without

11 discrimination, harassment, or assault. SWAN also seeks to reform veterans' services to

12 ensure high quality benefits for women veterans and their families.

13

36. SWAN's mission and goals are frustrated by the combat exclusion policy,

14 which limits women's opportunities for advancement in the military, puts women serving

15 in ground combat in danger, and continues to have a detrimental effect on many women

16 once they become veterans. Because of the harm caused by this policy, SWAN has had to

17 expend and divert its resources working to abolish it. SWAN conducts public education

18 and advocacy aimed at raising awareness about the inequities and harms to the military

19 caused by the DoD's combat exclusion policy.

20

37. If the combat exclusion policy were eliminated, SWAN could reallocate its

21 resources from working to abolish the policy to advancing its overall mission of

22 promoting and empowering servicewomen, including ending discrimination, harassment,

23 and assault. 24 Secretary of Defense Leon Panetta

25

38. Defendant Leon Panetta is the Secretary of the Department of Defense. He

26 is responsible for the administration and enforcement of the combat exclusion policy and

27 is named in his official capacity only.

28

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ _ __

THE EXCLUSION OF WOMEN FROM GROUND COMBAT POSITIONS

2

39. For much of our nation's history, women's participation in the Armed

3 Forces has been severely limited by law, mirroring the many laws at every level of

4 government that excluded women and limited their opportunities for employment and

5 participation in civic life. Despite these legal restrictions, women have always served in

6 the military defense of this country. In the Revolutionary and Civil Wars, women served

7 as nurses, spies, and cooks, and some fought, disguising themselves as men.

8 Approximately 34,000 women served in uniform in World War I, mostly as nurses. In

9 World War II, that number increased tenfold to 400,000 women serving in uniform,

10 primarily in separate women's auxiliary and other services.

11

40. Over time, Congress removed statutory restrictions on women's

12 participation in the Armed Forces and, by the early 1990s, no statute categorically

13 prohibited women from serving in any military position, including combat positions.

14

41. Nevertheless, the 000 adopted a policy in 1994 that categorically excluded

15 women from most combat positions, primarily in the Army and Marine Corps. This

16 policy, with minor changes, remains in effect today. Under this policy, women are barred

17 from being assigned to units below the brigade level whose primary mission is to engage

18 in direct combat on the ground. The definition of direct combat on the ground includes a

19 number of elements, including exposure to hostile fire and engagement with an enemy on

20 the ground with individual or crew-served weapons, in a location well forward on the

21 battlefield. The policy also provides discretionary bases upon which to exclude women

22 from other combat positions and specialties.

23

42. As a direct result of this policy, which has come to be known as the combat

24 exclusion policy, women-as a class and solely because of their gender-are barred from

25 entire career fields, known as military occupational specialties ("MOS' s"), including

26 infantry, armor, and special operations. In addition, the policy bars women from

27 approximately 238,000 individual positions. Women are excluded from 20% ofjobs

28

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ _ __

1 across the active duty force, including positions in infantry units, armor units, artillery

2 units, reconnaissance units and all other units below the brigade level, that have direct

3 ground combat as a primary mission.

4

43. In 2012, the DoD announced changes to the policy that would open

5 approximately 14,000 positions previously closed to women. But the core of the policy

6 remains in place. Women still are categorically excluded from entire MOS's and the vast

7 majority of the individual combat positions. The DoD has announced that it has no

8 present intention to make any further changes to its exclusionary policy.

9

THE COMBAT EXCLUSION POLICY HARMS SERVICEWOMEN,

INCLUDING THE PLAINTIFFS, IN SIGNIFICANT WAYS

10

11

44. The DoD's official and categorical exclusion of women from assignment to

12 ground combat units harms the individual Plaintiffs, and thousands of servicewomen like

13 them, in a variety of ways, including by denying them opportunities, training, and

14 recognition during active service, and benefits after they have retired from service.

15

45. The policy excludes women, solely because they are women and regardless

16 of their individual qualifications and capacities, from thousand of positions across the

17 Armed Forces and from certain career military occupational specialties and training

18 schools. These "closed" positions and career specialties are prestigious because they are

19 viewed as encompassing the core mission of the Armed Forces.

20

46. In addition to explicitly prohibiting women from serving in certain positions

21 and career specialties, the policy puts servicewomen at a disadvantage in the promotion

22 process, even within career specialties that are open to women. Formal assignment to

23 combat anns units and positions is an important factor in promotion to leadership

24 positions in the officer corps and among enlisted personnel, particularly in the Army and

25 the Marine Corps. For example, over 80% of general officers in the Army came from

26 combat arms positions, from which women are excluded. Chances for promotion to

27 senior enlisted positions are likewise enhanced for those who have served in combat arms

28

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ __

1 positions and career specialties. The DoD's combat exclusion policy thus serves as a

2 structural barrier to the advancement of women within the Armed Forces.

3

47. Even servicewomen who have engaged in ground combat in Iraq and

4 Afghanistan have routinely been denied combat credit for purposes of promotion. For

5 men, ground combat experience is a substantial factor in promotion to leadership

6 positions. In contrast, a woman's combat experience is not recognized as such, because

7 she is only "attached" but not "assigned" to ground combat units, or she commands teams

8 that serve "in support of' but are not "part of' ground combat units. For some

9 servicewomen, such as Staff Sergeant Jennifer Hunt, their combat service conducting

10 missions with infantry troops had no formal designation at all. For others, such as Captain

11 Alexandra Zoe Bedell and First Lieutenant Colleen Farrell, their combat service leading

12 FETs took place entirely outside of their official career specialties. Because of the combat

13 exclusion policy, the combat service of these and many other women cannot be given

14 official recognition within their career fields and therefore cannot be considered in the

15 same way it would be for men in promotion decisions.

16

48. The combat exclusion policy also deprives women of combat training

17 opportunities or the benefits of such training. Women serving in combat zones, such as

18 Staff Sergeant Hunt, are often trained separately from the units they serve with, which

19 requires them to learn the standard operating procedures of their units on their own and in

20 a much shorter time frame than men in the same unit, often only a few days. These

21 women, and others who wish to serve in combat, are also categorically barred from

22 combat leadership schools, or are put at a disadvantage in competing for limited space in

23 these schools because service members coming from combat arms units or positions are

24 preferred. Women who have managed to receive combat training are also harmed.

25 Despite the training and experience of these women, some field commanders assume,

26 because of the policy, that they do not have such training or experience and thus are not

27 qualified to conduct missions where combat scenarios are likely. For example, Major

28

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1 Hegar has repeatedly encountered, and had to refute, impressions that women cannot fly

2 combat aircraft.

3

49. The combat exclusion policy also makes it difficult for women to perform in

4 their assigned positions. In the case of the Marine Corps FETs, discussed above, missions

5 were sometimes delayed, interrupted, and even cancelled because commanders in the field

6 were unsure how to interpret the policy. For example, FETs were required to leave their

7 combat outposts every 45 days and return to main operating bases, resulting in a

8 disruption in operations and potentially endangering both the servicewomen and their

9 mISSIOns.

10

50. In addition to these harms, the DoD's combat exclusion policy creates the

11 false impression that women are not capable of performing in positions viewed as central

12 to the core mission of the Armed Forces. Women cannot be assigned to combat arms

13 units, such as the infantry. Instead, they are limited to positions that operate "in support

14 of' or "attached to" combat arms units, even though these women perform the same

15 functions as men in those units. The effect of the policy is to relegate women, literally

16 and figuratively, to a "supporting role" in our Armed Forces based on stereotypes about

17 women and assumptions about battlefield conditions that do not reflect the reality that

18 women, including the Plaintiffs, are already serving in combat situations, and doing so

19 with distinction.

20

51. The exclusion of women from many of the pathways to military leadership

21 not only affects women during their military careers, but after they have left service.

22 Success in the military often translates into success in business or other civilian fields,

23 especially for those recruits who lack access to higher education or well-paying jobs.

24 Indeed, the Army and the Marine Corps use this fact in advertisements targeting both men

25 and women. But the truth is that, because so many combat positions are closed to women,

26 promises of leadership experience and career advancement ring hollow.

27

52. For example, the Marine Corps has run advertising depicting a woman

28 commanding a group of men, with the tag line "There are no female Marines. Only

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ _ __

1 Marines." Douglas Quenqua, Sending in the Marines (To Recruit Women), N.Y. Times,

2 April 21, 2008. According to the advertising executive responsible for the ad campaign,

3 "[t]he message is that the Marine Corps offers a unique opportunity to earn that title

4 [commander] and be shoulder to shoulder with your male counterparts.. " That's an

5 important aspect for the young women seeking that challenge...." Id. A more accurate

6 tagline for this ad would have been "There are no female Marines assigned to ground

7 combat positions. Only male Marines. You aren't allowed to lead men into battle, and if

8 you do, you will not receive credit for it and your careers will suffer as a result."

9

53. In addition, women veterans have been harmed and continue to be harmed

10 by the combat exclusion policy. As a result of the policy, women have faced challenges

11 in obtaining benefits and treatment for combat-related stress, among other benefits,

12 because those processing veterans' claims do not believe that women can be "in combat."

13

54. Each of the individual Plaintiffs has suffered and will continue to suffer

14 harm as a result of the DoD's combat exclusion policy, as alleged herein.

15

THE COMBAT EXCLUSION POLICY IS NOT JUSTIFIED

BY ANY IMPORTANT GOVERNMENTAL OBJECTIVE

16

17

55. The combat exclusion policy is not supported by an "exceedingly

18 persuasive" justification that is substantially related to "important governmental

u.s. 19 objectives."

v. Virginia, 518 U.S. at 533. Historically, the policy was based on the

20 presumption that no woman has the necessary physical strength and mental toughness

21 required to serve in combat. Yet each of the individual Plaintiffs in this action has

22 demonstrated these qualities while serving in combat. As a result of the combat exclusion

23 policy, however, the service and sacrifice of these women has not been fully recognized

24 because, and only because, they are women.

25

56. The Plaintiffs are not alone in sufIering these harms. Hundreds of

26 thousands of women have served in the Armed Forces, including more than 280,000 in the

27 Iraq and Afghanistan conflicts. Women currently constitute 14.5 percent of the 1.4

28 million active military personnel, and 20 percent of new recruits. Of the women who

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1 have been deployed since September 11, 2001, 85 percent reported serving in a combat

2 zone or in an area where they drew imminent danger payor hostile fire pay, and nearly

3 half reported being involved in combat operations. Many of those women have served in

4 combat with distinction. But they have been deprived of the training, opportunities, and

5 recognition they deserve because, under the combat exclusion policy, they cannot

6 "of1icialIy" be assigned to ground combat units.

7

57. The DoD may contend that while the elimination of categorical, gender-

8 based exclusionary assignment policies may be a worthwhile goal, further consideration is

9 required. Any questions of timing go only to remedy, not constitutionality. The DoD has

10 been on notice for decades that it must have an exceedingly persuasive justification for

11 any categorical exclusion based on sex and that the justification must be substantially

12 related to an important governmental objective. Even if there existed, in the past, such a

13 justification, the realities of the modern military and battlefield have eliminated it.

14

58. The combat exclusion policy is not justified by broad generalizations about

15 "military effectiveness" or "force readiness." Indeed, far from advancing these objectives,

16 the policy undermines them, placing additional strain on already overburdened men and

17 women serving in our Armed Forces.

18

59. The combat exclusion policy also limits recruitment of the best talent

19 because women considering a military career know they will be barred from positions

20 viewed as necessary to the core mission of the Armed Forces and career advancement.

21 Given that recruitment is an issue faced by the Armed Forces today, this limitation

22 necessarily impedes military effectiveness.

23

60. For women already serving in the Armed Forces whose career goals and

24 advancement are limited due to the policy, the policy prevents retention of the best talent,

25 as evidenced by the choice of several of the individual Plaintiffs to leave active duty for

26 the reserves. Like the individual Plaintiffs who are leaving active duty, many of the

27 women being pushed out of the Armed Forces by the policy are decorated servicewomen.

28

19365207.1

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ _ __

1

61. The combat exclusion policy also prevents the full development and

2 utilization of the skills and talents of service members because women are barred from

3 certain training and because commanders cannot "officially" assign women to positions

4 for which they are otherwise qualified. This ties commanders' hands on the ground by

5 limiting the pool of talent from which they can draw when assembling teams for

6 missions.

7

62. In addition, the policy's definition of direct ground combat as taking place

8 well forward on the battlefield has been rendered so obsolete by the nature of modem

9 warfare that commanders cannot and do not apply it consistently. Some women have

10 reported being told that they cannot go on night-time missions because those constitute

11 "combat." Others have been prevented by commanders from sitting in the front cars of a

12 convoy, on the theory that those are most likely to hit IEDs. Still others are told they

13 cannot be gunners on vehicles, or that they should wait until after the beginning of a raid

14 to go in. This inconsistent application ofthe policy has led to confusion and disruptions

15 in operations.

16

63. The practice of "attaching" women to combat arms units, or creating

17 temporary teams that work "in support of' combat arms units, rather than assigning

18 women to the units directly, also disrupts operations and comes with its own dangers. The

19 women who are sent to patrol with combat arms units frequently do not train with these

20 units or deploy with them, and therefore must quickly learn that individual unit's mode of

21 operating and communicating once in the field.

22

64. The Plaintiffs who were in charge of or participated in FETs report that

23 members of the infantry and other combat battalions they supported frequently were as

24 concerned as they were by the disruptions in operations caused by the combat exclusion

25 policy. The FETs, for example, were integral to the combat arms units they patrolled

26 with, and the policy's mandate of pulling the women out of missions and requiring them

27 to "reset," or return to, the forward operating base every 45 days interrupted and interfered

28 with combat operations.

19365207.1

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ _ __

65. For all of the foregoing reasons, the DoD's categorical exclusion of the

2 individual Plaintiffs and all women from ground combat positions, regardless of their

3 abilities, is not and cannot be justified by generalized concerns about "military

4 effectiveness."

5

FIRST CLAIM FOR RELIEF

6

DENIAL OF EQUAL PROTECTION UNDER THE FIFTH AMENDMENT

7

66. Under existing Department of Defense policy, women are categorically

8 excluded from assignment to units "whose primary mission is to engage in direct combat

9 on the ground" in the Armed Forces.

10

67. The challenged policy creates classifications based solely on sex that are not

11 justified by any important governmental objective.

12

68. As set forth in this Complaint, the Plaintiffs are each harmed by the

13 Department of Defense policy challenged in this case.

14

69. The challenged policy therefore violates the Plaintiffs' rights to the equal

15 protection of the law, as secured by the Fifth Amendment of the Constitution.

16 17 18 19
20
21 22 23 24 25 26 27
28
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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ __

PRAYER FOR RELIEF

2

WHEREFORE, the Plaintiffs pray for judgment as follows:

3

1. Plaintiffs respectfully request that this Court, pursuant to 28 U.S.c. § 2201,

4 enter a declaratory judgment stating that the combat exclusion policy violates the

5 Plaintiffs' rights to the equal protection of the laws under the Fifth Amendment;

6

2. Plaintiffs respectfully request that this Court enter an order enjoining

7 Defendant from enforcing or applying the combat exclusion policy;

8

3. Plaintiffs respectfully request costs of suit, including reasonable attorneys'

9 fees, and

10

4. Plaintiffs respectfully request all further relief to which they may be justly

11 entitled.

12 DATED: November 27,2012 13

MUNGER, TOLLES & OLSON LLP

14

15

16

Attorneys for Plaintiffs

MARY JENNINGS HEGAR, JENNIFER

17

HUNT, ALEXANDRA ZOE BEDELL,

COLLEEN FARRELL, AND SERVICE

18

WOMEN'S ACTION NETWORK

19 Additional Counsel:

20 STEVEN M. PERRY (SBN 106154) KATHRYN EIDMANN (SBN 268053)
21 MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor
22 Los Angeles, CA 90071-1560 Telephone: (213) 683-9100
23 Facsimile: (213) 687-3702 Email: steven.perry@mto.com
24 Email: kathryn.eidmann@mto.com

25

26

27

28
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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. _ __

LENORA M. LAPIDUS [pro hac vice application pending] ARIELA MIGDAL [pro hac vice application pendmg]
2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION
WOMEN'S RIGHTS PROJECT
3 125 Broad Street, 18th Floor New York, NY 10004
4 Telephone: (212) 549-2668
Facsimile: (212) 549-2580 5 Email: llapidus@aclu.org
Email: amigdal@aclu.org 6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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 Case3:12-cv-06005-EMC Document18 Filed10/31/13 Page1 of 29

1 ROSEMARIE T. RING (SBN 220769) MARI OVERBECK (SBN 261707)
2 MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor
3 San Francisco, CA 94105-2907 Telephone: (415) 512-4000
4 Facsimile: (415) 512-4077 Email: rose.ring@mto.com
5 mari.overbeck@mto.com

6 ELIZABETH O. GILL (SBN 218311) AMERICAN CIVIL LIBERTIES UNION FOUNDATION
7 OF NORTHERN CALIFORNIA, INC. 39 Drumm Street
8 San Francisco, CA 94111 Telephone: (415) 621-2493
9 Facsimile: (415) 255-8437 Email: egill@aclunc.org
10 Attorneys for Plaintiffs
11

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

15 MARY JENNINGS HEGAR, JENNIFER HUNT, ALEXANDRA ZOE BEDELL,
16 COLLEEN FARRELL, AND SERVICE WOMEN’S ACTION NETWORK,
17 Plaintiffs,
18 v.
19 CHUCK HAGEL, Secretary of Defense,
20 Defendant.
21

CASE NO. C 12-06005 EMC FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

22

23

24

25

26

27

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1

Plaintiffs Mary Jennings Hegar, Jennifer Hunt, Alexandra Zoe Bedell, Colleen

2 Farrell, and Service Women’s Action Network allege as follows:

3

INTRODUCTION

4

1. This case challenges the ongoing categorical exclusion of women from

5 combat positions in the United States military. The Plaintiffs filed their original

6 complaint (“Complaint”) in November 2012. The Complaint challenged as

7 unconstitutional the policy instituted in 1994 by the Department of Defense (“DoD”)

8 through a directive that excluded Plaintiffs, and all servicewomen, from assignment to

9 units whose primary mission was to engage in direct ground combat (hereinafter “1994

10 directive”). Under the 1994 directive, women were barred from more than 238,000

11 positions across the Armed Forces, including all infantry positions, and from certain

12 military occupational specialties (also known as “MOSs”) and training schools. No

13 United States statute required this categorical exclusion of women. Instead, the DoD had

14 itself chosen to close these positions to servicewomen solely on the basis of their gender.

15

2. The DoD has stipulated (Dkt No. 17) that, in January 2013, it announced

16 that it had “rescinded” the 1994 directive that had barred all women from applying for or

17 serving in hundreds of thousands of combat positions in the Armed Forces. Despite the

18 purported rescission of the 1994 directive, however, the DoD has continued its policy and

19 practice of excluding women from applying for or serving in hundreds of thousands of

20 combat positions solely because they are women.

21

3. Specifically, the DoD continues to bar all servicewomen from entire MOSs;

22 continues to bar all servicewomen from many all-male units, even if those units have

23 positions in specialties that are already open to women; and continues to bar all

24 servicewomen from numerous courses, schools, and training programs. The DoD’s

25 ongoing exclusion of all women from these units, specialties, and schools, solely because

26 of their gender and regardless of their abilities, is unconstitutional and has serious, adverse

27 consequences for the Plaintiffs in this case.

28

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1

4. The categorical exclusion of women from combat units, occupational

2 specialties, and schools is based on outdated stereotypes of women and ignores the

3 realities of the modern military and battlefield conditions. Women make up an

4 increasingly significant percentage of the Armed Forces, with more than 280,000 having

5 served in Iraq and Afghanistan alone. The battlefields in Iraq and Afghanistan lack any

6 clear boundaries or front lines, and the demands of these wars on the ground have required

7 participation from troops across the Armed Forces. In addition, the unique circumstances

8 and demands of fighting in Iraq and Afghanistan have led to a greater need for women on

9 the ground. As a result, servicewomen across the Armed Forces, including the Plaintiffs,

10 have risked their lives and continue to risk their lives serving in combat on the ground in

11 our nation’s active theatres of war.

12

5. Despite its decision to rescind the 1994 directive, the DoD continues to

13 ignore the experience of women who have served in combat in recent years. For example,

14 the DoD recently released implementation plans that suggest it intends to consider the so-

15 called “social science impacts” of integrating women into all-male combat arms schools,

16 MOSs, and units, including Special Forces units. The Plaintiffs themselves, and hundreds

17 of thousands of women like them, have served alongside male soldiers in Iraq and

18 Afghanistan with bravery and honor. Many of these servicewomen experienced the kind

19 of bonding with their fellow servicemen that opponents of women’s full integration fear

20 their presence in combat units could compromise. These women have proven beyond a

21 shadow of constitutional doubt that women should be allowed to apply for and serve in all

22 MOSs and schools from which they are categorically barred. Nevertheless, the DoD

23 continues to bar all women from applying for and serving in many thousands of positions

24 while it conducts “research” into the purported “social science impacts” of integration.

25

6. Servicewomen across the Armed Forces, including the Plaintiffs, are

26 harmed by the DoD’s ongoing combat exclusion policy in a variety of ways. Those who

27 have already served in combat are barred from formal assignment to combat arms

28 positions for which they have already proven themselves suited, and they are also denied

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1 the official recognition they need to advance their careers and serve further in combat

2 arms capacities. Women are also prohibited from applying to certain combat arms

3 schools and courses, further limiting their potential for career advancement. The

4 continued exclusion of women from many combat units, and the DoD’s stated intention to

5 ignore the real-world battlefield experience of women serving in combat, create and

6 perpetuate a presumption that women are not serving in combat, which further

7 disadvantages women compared to men within the military and society, even after they

8 leave the military. This ongoing combat exclusion policy sends a message to the world

9 and to our Armed Forces that women are not capable of serving their country to the same

10 extent as men.

11

7. The U.S. Supreme Court has ruled that governmentally-mandated

12 discrimination based on sex is unconstitutional unless it is supported by an “exceedingly

13 persuasive” justification that is “substantially related” to “important governmental

14 objectives.” U.S. v. Virginia, 518 U.S. 515, 533 (1996). Any such justification must be

15 genuine, not hypothetical, and cannot rely on “overbroad generalizations about the

16 different talents, capacities, or preferences of males and females.” Id. The DoD’s

17 ongoing policy and practice of categorically excluding women from certain combat

18 positions, regardless of their individual qualifications and capacities, and irrespective of

19 the past decade of women’s combat service in war, do not and cannot meet this exacting

20 standard.

21

8. The DoD’s ongoing combat exclusion policy is one of the last vestiges of

22 federal de jure discrimination against women. Nearly a century after women first earned

23 the right of suffrage, the DoD’s policy and practice still deny women, including the

24 Plaintiffs, a core component of full citizenship: serving on equal footing in the military

25 defense of our nation. Notwithstanding the DoD’s rescission of its 1994 directive, its

26 ongoing policy and practice of categorically barring women from serving their country to

27 the best of their ability have never ceased and continue to block the Plaintiffs’ efforts to

28 serve in positions for which they are qualified. Plaintiffs therefore respectfully ask this

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1 Court to: (1) declare that the DoD’s current policy and practice of excluding women from

2 applying for and serving in positions in the Armed Forces are unconstitutional and violate

3 Plaintiffs’ rights to equal protection of the laws under the Due Process Clause of the Fifth

4 Amendment; and (2) require the DoD to allow women to apply for all combat-related

5 positions and schools and to be considered on their individual merit.

6

JURISDICTION

7

9. This Court has original jurisdiction under 28 U.S.C. § 1331 because

8 Plaintiffs’ claims arise from and under the U.S. Constitution, as set forth herein.

9

INTRADISTRICT ASSIGNMENT

10

10. The challenged policy and practice are enforced, and their impact is felt,

11 throughout the Northern District of California, including in Contra Costa County and

12 Monterey County, where the DoD maintains several bases, such as Camp Parks in Dublin

13 and Fort Hunter Liggett in Monterey County.

14

PARTIES

15

11. The Plaintiffs are individual servicewomen, each acting in her own

16 individual capacity, and the Service Women’s Action Network, a nonprofit organization

17 that supports, defends, and empowers servicewomen and veterans.

18

12. All of the individual Plaintiffs have served in Afghanistan and/or Iraq. Two

19 were assigned to units in Female Engagement Teams (“FETs”) in the Marine Corps.

20 These teams were created by the Marine Corps for the express purpose of allowing female

21 Marines to serve alongside all-male infantry units, with the primary goal of engaging with

22 Afghan civilians, particularly Afghan women. Several of the Plaintiffs went on ground

23 missions with infantry footsoldiers in Afghanistan. Several of the Plaintiffs served

24 alongside, were forward-deployed with, or supervised teams of women who were

25 stationed with and serving with Special Operations forces in austere battlefield conditions.

26

13. Two of the Plaintiffs were awarded the Purple Heart after being wounded

27 while serving in combat. Two received medals in recognition of their combat service—

28 the Air Force Combat Action Medal and the Army Combat Action Badge. One earned a

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1 Distinguished Flying Cross with a Valor Device for extraordinary achievement and

2 heroism while engaging in direct ground fire with the enemy after being wounded when

3 her helicopter was shot down over Afghanistan.

4 Major Mary Jennings Hegar

5

14. Plaintiff Major Mary Jennings Hegar is a combat helicopter pilot currently

6 serving as an Air Guardsman for the California Air National Guard based in Mountain

7 View, California. She served three tours over two deployments in Afghanistan.

8

15. In December of 1999, Major Hegar was commissioned in the Air Force,

9 where she served for five years as a maintenance officer. She subsequently spent six

10 years in the Air National Guard, where she trained as a pilot. In her final tour in

11 Afghanistan, Major Hegar flew several medevac missions in extremely dangerous combat

12 conditions, taking direct fire on almost a daily basis.

13

16. In order to qualify to fly over enemy territory in Afghanistan, Major Hegar

14 successfully completed a grueling training program called Survival, Evasion, Resistance,

15 and Escape (“SERE”) training. SERE training is widely regarded as one of the most

16 physically and mentally demanding forms of training offered to military personnel. To

17 complete this training, Major Hegar was placed in command of half of the class

18 participants and was required to hike over mountainous terrain carrying heavy gear, in

19 addition to other physically and mentally arduous tasks. Major Hegar also achieved

20 expert marksman status in both of her service weapons (handgun and rifle).

21

17. As a result of her rescue missions, Major Hegar was involved in ground

22 combat. In July 2009, when she was a Captain, her aircraft was shot down by enemy fire

23 over Afghanistan, as she and her crew were evacuating three injured soldiers. Major

24 Hegar was injured by a bullet that penetrated the helicopter and, once on the ground, she

25 returned fire and successfully completed the rescue mission under fire. As a result of this

26 incident, Major Hegar was awarded the Purple Heart and the Distinguished Flying Cross

27 with a Valor Device, two of the highest decorations possible for a pilot. The citation

28 accompanying her Distinguished Flying Cross emphasized her “outstanding heroism and

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1 selfless devotion to duty.” Within a week of being shot down, Major Hegar and her crew

2 were returned to flying status to resume their medevac missions.

3

18. Major Hegar has been forward-deployed with Special Forces units,

4 including Delta Force and Special Forces Operational Detachment-A (known as

5 “SFODA”) during her deployments in the Kandahar and Helmand areas of Afghanistan,

6 while stationed on small forward operating bases. At times, she and her crew (all men)

7 were isolated in such locations for up to six weeks at a time with Special Forces groups of

8 about two dozen men, with no other women there, or occasionally one other woman.

9 Despite being stationed in such locations alongside all-male Special Forces units, Major

10 Hegar and her crew were able to function effectively and interact positively with the

11 Special Forces troops.

12

19. Despite Major Hegar’s SERE training, her success as a combat pilot in

13 largely all-male units and settings, and her recognized valor in ground combat, Major

14 Hegar is barred categorically by the DoD’s current combat exclusion policy and practice

15 from competing for certain combat positions solely because of her gender. If she were not

16 barred from these positions, Major Hegar would seek to cross-train for a ground combat

17 position, which would be advantageous for her career.

18 Staff Sergeant Jennifer Hunt

19

20. Plaintiff Staff Sergeant Jennifer Hunt is a noncommissioned officer in the

20 United States Army Reserves. Staff Sergeant Hunt enlisted in the United States Army

21 Reserves in 2001, in the wake of the September 11 attacks on the United States. She

22 currently serves in the Civil Affairs Military Occupational Specialty.

23

21. Staff Sergeant Hunt deployed to Afghanistan in August 2004 with a unit

24 engaged in provincial reconstruction. In addition to her regular duties as a Civil Affairs

25 Specialist, which involved coordinating civil-military operations, Staff Sergeant Hunt,

26 who then held the rank of Specialist, was called upon to accompany male combat arms

27 soldiers on “door-kicking missions,” searching villages for insurgents. During these

28 missions, Staff Sergeant Hunt served, usually as the only woman, alongside male combat

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1 arms soldiers; they were dropped off together by helicopter in the mountains, and they

2 wore the same body armor and carried the same weapons. After completing this

3 deployment successfully, Staff Sergeant Hunt returned to the United States in July 2005.

4

22. In August 2007, Staff Sergeant Hunt deployed to Iraq with a unit engaged in

5 reconstruction projects. While in Iraq, Staff Sergeant Hunt’s Humvee vehicle was hit by

6 an Improvised Explosive Device (“IED”), causing shrapnel injuries to her face, arms, and

7 back. Staff Sergeant Hunt was awarded a Purple Heart in connection with this attack.

8 After completing her deployment, she returned to the United States in May 2008.

9

23. The 1994 directive and the DoD’s current combat exclusion policy and

10 practice have prevented and will prevent Staff Sergeant Hunt from serving our nation to

11 the best of her abilities. Although she has served in the same roles as male soldiers, Staff

12 Sergeant Hunt was not officially part of the all-male combat arms units she accompanied

13 on missions in Afghanistan. She did not have the opportunity to train with them, learn

14 their standard operating procedures, acclimate to unit leadership, and obtain mission-

15 specific training. As a result, although Staff Sergeant Hunt was able to overcome these

16 disadvantages, she and the combat arms units with which she served were endangered by

17 the operation of the combat exclusion policy.

18

24. In addition, Staff Sergeant Hunt could not and cannot apply to attend

19 leadership schools that are closed to women, and she is categorically excluded from

20 positions that often enhance a soldier’s chances for promotion to First Sergeant and

21 Sergeant Major. Staff Sergeant Hunt is interested in competing for opportunities to serve

22 directly with combat units in positions that are currently closed to women, as well as

23 training opportunities that are closed or restricted for women. Together, these effects of

24 the DoD’s combat exclusion policies and practices put Staff Sergeant Hunt at a

25 disadvantage in her chances for career progression compared with male soldiers.

26

25. Within the next year, Staff Sergeant Hunt must decide whether to re-enlist

27 for another six years. She is currently investing in her military career by attending an

28 Advanced Leadership Course, which is a school to prepare her for increased

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1 responsibility, leadership capacity, and promotion opportunities at Fort Knox. Yet the

2 DoD has not made available to Staff Sergeant Hunt or other women important information

3 about which career avenues they will be permitted to compete for, even though men can

4 readily access such information. While some male Civil Affairs Specialists go to Special

5 Forces school and transition into Special Forces – which has historically had a close

6 association with the Civil Affairs and Psychological Operations Command in which Staff

7 Sergeant Hunt has spent her career – the Plaintiffs are informed and believe that women

8 are still not permitted to attend Special Forces school or transition into the relevant

9 Special Forces units. Staff Sergeant Hunt is interested in competing in the Special Forces

10 selection process, but the DoD has not indicated whether the relevant courses and units

11 will ever be opened to women or even when it might make that decision. In the

12 meantime, Staff Sergeant Hunt is blocked, simply because she is a woman, from even

13 applying to the school of her choice. These ongoing exclusions harm Staff Sergeant Hunt

14 and make it difficult for her to make informed decisions about her military career.

15 Captain Alexandra Zoe Bedell

16

26. Plaintiff Captain Alexandra Zoe Bedell was commissioned as an officer in

17 the Marine Corps in 2007 and assigned to the MOS of Logistics Officer. While serving

18 on active duty, she deployed twice to Afghanistan out of Marine Corps Base Camp

19 Pendleton in California. She is currently a captain in the United States Marine Corps

20 Reserves.

21

27. After commissioning, Captain Bedell graduated with honors from the Basic

22 School, which is the first phase of Marine Corps officer training. This means that she

23 ranked in the top 10 percent of her class of approximately 300 Marines for the twenty-six

24 week course, which includes training on weapons, tactics, leadership, and other skills.

25

28. Although she succeeded in Marine Corps officer training, Captain Bedell

26 was barred, solely because she is a woman, from competing for assignment to a combat

27 arms MOS, such as the infantry. Instead, she became a Logistics Officer, an occupational

28 specialty in the Marine Corps that is open to women. Had combat arms MOSs, including

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1 the infantry, been open to women in the Marine Corps, Captain Bedell would have

2 pursued them, because she views those jobs as encompassing the core mission of the

3 Marine Corps.

4

29. Captain Bedell first deployed to Afghanistan in 2009 as a lieutenant, where

5 she served as her unit’s Current Operations Officer, overseeing all logistical support for a

6 Marine Regimental Combat Team. As a collateral duty, she also oversaw the unit’s

7 Female Engagement Teams (“FETs”).

8

30. Captain Bedell deployed again to Afghanistan in 2010, and on this

9 deployment, she served full-time as the Officer-in-Charge of the First Marine

10 Expeditionary Force Female Engagement Team, in which capacity she trained and

11 deployed 46 Marines to serve as FET members in direct support of the division’s infantry

12 regiments and the battalion units underneath it.

13

31. During both of Captain Bedell’s deployments, FET members lived and

14 worked with the male infantry Marines with whom they served. They lived in the same

15 conditions and managed the lack of privacy in the combat outposts and small patrol bases

16 where they were located for extended periods of time. In providing support to the combat

17 operations of the infantrymen, including participating in daily patrols, FET members wore

18 the same body armor as the infantrymen, carried the same weapons as the infantrymen,

19 and, along with infantrymen, regularly encountered ground combat.

20

32. Captain Bedell and her FET Marines served in support of Special Forces

21 units. For example, while serving with Special Forces soldiers in Marja immediately after

22 the invasion of Marja in 2010, Captain Bedell and a handful of other FET Marines

23 patrolled, went on operations, took turns “manning” the guns, and generally worked

24 closely with the small, all-male Special Forces unit in austere conditions without working

25 toilets and regular showers. During Captain Bedell’s second deployment, she supervised

26 FET Marines who were stationed with Special Forces soldiers in remote locations. In

27 these situations, the female Marines worked professionally with the all-male units and

28 proved themselves to be valuable additions to such units.

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1

33. The DoD’s 1994 directive excluding women from assignment to ground

2 combat units interfered with Captain Bedell’s ability as Officer-in-Charge of the FET

3 program to fulfill her mission of providing support to combat and counterinsurgency

4 operations. In Captain Bedell’s experience, while the combat commanders on the ground

5 were generally supportive of female Marines and fully appreciated the additional troops,

6 some FET missions were cancelled because higher-ranking officers were concerned that

7 sending women on missions in which they were likely to encounter ground combat could

8 run afoul of the DoD’s policy.

9

34. Based on the same concern about violating the DOD’s 1994 directive,

10 Marine commanders required all FET members to return (or, in military parlance, “reset”)

11 to their main forward operating base (Leatherneck) every 45 days. This artificial and

12 unnecessary maneuver disrupted operations and put both men and women serving in and

13 supporting these units in danger. To accommodate the policy, the female Marines were

14 forced to travel to and from the base on dangerous roads, and they were often taken out of

15 crucial missions, sometimes for a week’s time.

16

35. Captain Bedell left active duty in August 2011 in part because the DoD’s

17 combat exclusion policy restricted her assignments based on her gender and without

18 regard for her proven ability and performance. In addition, she knew that because of the

19 DoD’s policy, the combat leadership experience she gained during her deployments could

20 not be considered for promotion decisions in the same way it would be if she were a male

21 Marine, because “officially” she had never served in a ground combat unit.

22

36. Captain Bedell continues to be harmed by the DoD’s combat exclusion

23 policy and practice. As a Marine Corps Reservist, Captain Bedell does not drill with a

24 unit, in part because many Marine Corps Reserve units, including those closest to where

25 she lives, remain closed to female Marines. Captain Bedell would consider returning to a

26 more active status if she were not subject to ongoing systematic discrimination, which

27 ignores the combat leadership experience she gained as a FET leader during her

28 deployments.

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1 First Lieutenant Colleen Farrell

2

37. At the time the Complaint was filed, Plaintiff Captain Colleen Farrell was

3 an active duty First Lieutenant in the United States Marine Corps, stationed at Marine

4 Base Camp Pendleton in California. She was commissioned in 2008 and was assigned the

5 position of Air Support Control Officer, which is akin to an air traffic controller. Captain

6 Farrell deployed to Afghanistan in 2010, where she served as team leader of her unit’s

7 FETs.

8

38. Captain Farrell was stationed in Afghanistan from September 2010 until

9 April 2011, during which time she and between 12 and 20 FET members she supervised

10 went on missions and patrols with male infantry Marines, performing outreach with

11 Afghan civilians, particularly Afghan women. Like the infantrymen with whom they

12 served, Captain Farrell and the women in her charge were regularly in danger of drawing

13 enemy fire, being ambushed, or being hit by IEDs. Three teams of women Marines under

14 Captain Farrell’s charge were awarded Combat Action Ribbons for receiving and

15 returning fire. In 2012, Captain Farrell served as the Executive Officer (second-in-

16 command) for another group of FETs, preparing them for deployment and coordinating

17 with the infantry troops the FETs would be supporting.

18

39. Captain Farrell and the FETs she supervised also worked closely with

19 Marine Corps Special Operations Command (“MARSOC”) units. One team of two

20 female Marines that Captain Farrell supervised worked with a Marine battalion landing

21 team and with a Marine Special Operations task force for about three or four months of

22 the deployment. It was not a very large command. They were on a small patrol base and

23 patrolled in austere environments. Captain Farrell and her female Marines got positive

24 feedback and had a good relationship with that unit. The FET played an important role in

25 identifying where IEDs and weapons caches were hidden, thanks to their success in

26 establishing relationships with the local population. Another FET team frequently worked

27 out of an operational post, which is the smallest territory that Marines hold, with no tents,

28 just sleeping on the ground in mud and rain, with a ten- or twelve-man Marine patrol.

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1

40. The 1994 directive made it difficult for Captain Farrell and the women in

2 her charge to perform in their assigned positions. Out of concern about violating DoD

3 policy, Marine commanders required all FET members to return (or, in military parlance,

4 “reset”) to their main forward operating base (Leatherneck) every 45 days. This artificial

5 and unnecessary maneuver disrupted operations and put both men and women serving in

6 and supporting these units in danger. To accommodate the policy, the women Marines

7 were forced to travel to and from the base on dangerous roads, and they were often taken

8 out of crucial missions, sometimes for a week’s time.

9

41. In December 2012, Captain Farrell entered the Marine Corps Reserves, and

10 in January 2013, she was promoted to the rank of Captain. If Captain Farrell were to

11 deploy again, she would be subject to the same or similar interruptions of operations

12 stemming from the current combat exclusion policy and practice.

13

42. Despite Captain Farrell’s training and experience leading teams of Marines

14 who patrolled with infantry and Special Forces units, if she were called back to active

15 duty, there is no way for her to resume this work. The Marine Corps no longer has a FET

16 program and, as a woman, Captain Farrell is categorically excluded from the units that she

17 and her FET Marines were supporting. There is thus no clear way for her to utilize her

18 real-world ground combat leadership experience within her official career specialty of Air

19 Support Control Officer.

20 Service Women’s Action Network (SWAN)

21

43. Plaintiff Service Women’s Action Network (SWAN) is a nonpartisan,

22 nonprofit organization that supports, defends, and empowers servicewomen and women

23 veterans through advocacy initiatives and community programs. Its mission includes

24 transforming military culture by securing equal opportunity and freedom to serve without

25 discrimination, harassment, or assault. SWAN also seeks to reform veterans’ services to

26 ensure high quality benefits for women veterans and their families.

27

44. SWAN’s mission and goals are frustrated by the DoD’s combat exclusion

28 policy and practice, which limit women’s opportunities for advancement in the military,

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1 put women serving in ground combat in danger, and continue to have a detrimental effect

2 on many women once they become veterans. Because of the harms caused by both the

3 1994 policy and the current exclusionary policy and practice, SWAN has had to expend

4 and divert its resources to work to ensure that all parts of the military are open to

5 servicewomen and that servicewomen are recognized for their ground combat experience.

6 SWAN conducts public education and advocacy aimed at raising awareness about the

7 inequities and harms to the military caused by the DoD’s combat past and current

8 exclusion policy and practice.

9

45. If the DoD ceased categorically to exclude women from combat positions,

10 SWAN could reallocate its resources from working to open all positions in the military to

11 women to advancing its overall mission of promoting and empowering servicewomen,

12 including ending discrimination, harassment, and assault.

13

46. The DoD’s decision to rescind its 1994 directive excluding women from

14 assignment to ground combat units has not reduced the work SWAN must do to combat

15 the ill effects of the ongoing exclusion of women from combat positions. On the contrary,

16 SWAN must continue to advocate for the elimination of the actual remaining categorical

17 exclusions and must engage in public education aimed at dispelling the misconception that

18 all combat arms units, schools, and career fields are now open to women.

19 Secretary of Defense Chuck Hagel

20

47. Defendant Chuck Hagel is the Secretary of the Department of Defense. He

21 is responsible for the administration and enforcement of the combat exclusion policy and

22 practice and is named in his official capacity only.

23

48. The Secretary of Defense is responsible for the categorical exclusion of

24 women from ground combat positions. The 1994 directive excluding women from

25 assignment to ground combat units was promulgated and signed by the Secretary of

26 Defense, and the Secretary of Defense recently announced its supposed rescission. The

27 Secretary of Defense controls whether, and which, combat positions remain closed to

28 women.

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1

THE ONGOING EXCLUSION OF WOMEN FROM GROUND COMBAT

POSITIONS, UNITS, CAREER FIELDS, AND SCHOOLS

2

3

49. For much of our nation’s history, women’s participation in the Armed

4 Forces has been severely limited by law, mirroring the many laws at every level of

5 government that excluded women and limited their opportunities for employment and

6 participation in civic life. Despite these legal restrictions, women have always served in

7 the military defense of this country. In the Revolutionary and Civil Wars, women served

8 as nurses, spies, and cooks, and some fought, disguising themselves as men.

9 Approximately 34,000 women served in uniform in World War I, mostly as nurses. In

10 World War II, that number increased tenfold to 400,000 women serving in uniform,

11 primarily in separate women’s auxiliary and other services.

12

50. Over time, Congress removed statutory restrictions on women’s

13 participation in the Armed Forces and, by the early 1990s, no statute categorically

14 prohibited women from serving in any military position, including combat positions.

15

51. Nevertheless, the DoD adopted a policy and issued a directive in 1994 that

16 categorically excluded women from most combat positions, primarily in the Army and

17 Marine Corps. Despite the DoD’s January 2013 decision to rescind the 1994 directive, the

18 exclusionary aspects of that policy remain in effect today. Plaintiffs are informed and

19 believe that under the DoD’s current policy and practice, women are barred from being

20 assigned to more than 200,000 positions in units below the brigade level whose primary

21 mission is to engage in direct combat on the ground.

22

52. As a result of DoD policy, women – as a class and solely because of their

23 gender – are currently barred from nearly 20 percent of jobs across the active duty force,

24 including all or nearly all positions in infantry units, armor units, artillery units,

25 reconnaissance units, Special Forces units, and all other units below the battalion level

26 that have direct ground combat as a primary mission. Women are also categorically

27 excluded from combat arms schools, courses, and training programs, such as Ranger

28 School and Special Forces courses.

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1

53. Despite the DoD’s decision to rescind the 1994 combat exclusion directive,

2 it has not opened the vast majority of the MOSs, units, fields and schools that were closed

3 to women under the combat exclusion policy. Moreover, the Plaintiffs are informed and

4 believe that some of these units, positions, fields and schools may remain closed to

5 women indefinitely.

6

54. During the summer of 2013, the DoD released implementation plans

7 purporting to explain how the various service branches planned to remove categorical

8 exclusions of women. These plans confirm that such categorical exclusions remain in

9 place and, in some cases, may never be lifted. For example, the Marine Corps plan

10 includes a lengthy list of MOSs and units, totaling many thousands of billets, that are

11 currently closed. The Marine Corps plan also states that while it has opened infantry

12 training schools to women on a trial basis, women Marines who successfully complete the

13 training will not be assigned the infantry MOS or allowed to join most infantry units. By

14 contrast, male Marines who complete the same training programs are automatically

15 granted the infantry MOS and allowed to join an infantry unit. Put differently, the Marine

16 Corps currently allows women to prove that they are just as qualified as men to serve in

17 an infantry MOS, but it still bars those women from such service because of their gender.

18

55. The Special Operations Command plan similarly demonstrates that the DoD

19 continues to block women from positions for which they are qualified. The plan states

20 that it will “research and analyze the social science impacts” of having women in “small,

21 elite teams that operate in remote, austere environments.” In the meantime, many if not

22 all Special Operations units are closed to all servicewomen. The continued exclusion of

23 women from Special Operations affects women throughout the Armed Forces. For

24 example, the Air Force, where women including Plaintiff Major Hegar have long served

25 as combat pilots and where more than 99 percent of positions are open to women,

26 indicated in its implementation plan that it could close Air Force positions and units after

27 considering the “career development implications” of allowing women to enter a job

28 sector where they will not be able to do career-broadening assignments, many of which

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1 are in the Special Operations Forces. The Air Force, and perhaps other branches, plan to

2 “avoid assigning women to career fields where career progression/upward mobility is

3 restricted” by ongoing Special Operations exclusion policies.

4

56. Neither the implementation plans nor any other actions of the DoD

5 acknowledge that the DoD already has a great deal of information about how women

6 work with small ground combat and Special Operations teams, based on the experiences

7 of the Plaintiffs and many other servicewomen who deployed to Iraq and Afghanistan

8 over the past twelve years in capacities that include but are not limited to Female

9 Engagement Teams and other programs in which women worked with all-male combat

10 units and Special Operations units, such as Cultural Support Teams, the Lioness program,

11 and the attachment of women to ground combat units.

12

THE DOD’S EXCLUSIONARY POLICY AND PRACTICE HARM

SERVICEWOMEN, INCLUDING THE PLAINTIFFS, IN SIGNIFICANT WAYS 13

14

57. The DoD’s continued policy and practice of excluding women categorically

15 from combat positions, career specialties, and schools harm the individual Plaintiffs,

16 SWAN, and thousands of servicewomen in a variety of ways, including by denying them

17 opportunities, training, and recognition during active service, and benefits and recognition

18 after they have retired from service.

19

58. The DoD excludes women, solely because they are women and regardless of

20 their individual qualifications and capacities, from many thousands of positions across the

21 Armed Forces and from various MOSs and training schools. These “closed” positions and

22 career specialties are prestigious because they are viewed by many in both the military

23 and the community at large as encompassing the core mission of the Armed Forces. The

24 ongoing exclusion of women from some units and positions also has ripple effects, which

25 the DoD has acknowledged in the recent implementation plans, that harm women’s career

26 progression, because they are deprived of access to the same range of career-broadening

27 assignments and schools that their male counterparts have.

28

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1

59. In addition to explicitly prohibiting women from serving in certain positions

2 and career specialties, the DoD’s current exclusionary policies put servicewomen at a

3 disadvantage in the promotion process, even within career specialties that are open to

4 women. Formal assignment to combat arms units and positions is an important factor in

5 promotion to leadership positions in the officer corps and among enlisted personnel,

6 particularly in the Army and the Marine Corps. For example, more than 80 percent of

7 general officers in the Army came from the combat arms, from which women are largely

8 excluded. Chances for promotion to senior enlisted positions are likewise enhanced for

9 those who have served in combat arms positions and career specialties. Further, even in

10 open specialties, servicewomen are prevented from being assigned to as many units as

11 their male counterparts, and these restrictions can limit their ability to gain career-

12 broadening assignments and attend leadership and other schools. The DoD’s combat

13 exclusion policy and practice thus serve as a structural barrier to the advancement of

14 women within the Armed Forces.

15

60. Even servicewomen who have engaged in ground combat in Iraq and

16 Afghanistan have routinely been denied combat credit for purposes of promotion. For

17 men, ground combat experience is a substantial factor in promotion to leadership

18 positions. By contrast, a woman’s combat experience is not recognized as such, because

19 she is only “attached” but not “assigned” to ground combat units, or she commands teams

20 that serve “in support of” but are not “part of” ground combat units, or her service was a

21 “temporary duty” not within her primary MOS. For some servicewomen, such as Staff

22 Sergeant Jennifer Hunt, their combat service conducting missions with infantry troops had

23 no formal designation at all. For others, such as Captain Alexandra Zoe Bedell and

24 Captain Colleen Farrell, their combat service leading FETs took place entirely outside of

25 their official career specialties. Because of the DoD’s combat exclusion policy and

26 practice, the combat service of these and many other women cannot be given official

27 recognition within their career fields and therefore cannot be considered for promotion

28 decisions in the same way it would be for the men in the all-male units they worked with.

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1

61. The DoD’s combat exclusion policies also deprive women of combat

2 training opportunities and the benefits of such training. Women serving in combat zones,

3 such as Staff Sergeant Hunt, are often trained separately from the units they serve with,

4 which requires them to learn the standard operating procedures of their units on their own

5 and in a much shorter time frame than men in the same unit, often only a few days. These

6 women, and others who wish to serve in combat, are also categorically barred from

7 combat leadership schools, or are put at a disadvantage in competing for limited space in

8 these schools, because servicemembers coming from combat arms units or positions are

9 preferred. Women who have managed to receive combat training are also often harmed

10 because despite the training and experience of these women, the exclusionary policy and

11 practice lead some field commanders to assume that women cannot have such training or

12 experience and thus cannot be qualified to conduct missions where combat scenarios are

13 likely. For example, Major Hegar has repeatedly encountered, and had to refute,

14 impressions that women cannot fly combat aircraft.

15

62. The DoD’s exclusionary policy and practice also make it difficult for

16 women to perform in their assigned positions. In the case of the Marine Corps FETs,

17 discussed above, missions were sometimes delayed, interrupted, and even cancelled

18 because commanders in the field were unsure how to interpret the 1994 directive. For

19 example, FETs were required to leave their combat outposts every 45 days and return to

20 main operating bases, resulting in a disruption in operations and potentially endangering

21 both the servicewomen and their missions.

22

63. In addition to these harms, the DoD’s exclusionary policy and practice

23 create the false impression that women are not capable of performing in positions viewed

24 as central to the core mission of the Armed Forces. Women still cannot be assigned to

25 many combat arms units and cannot enter certain combat arms MOSs. Instead, they are

26 limited to positions that operate “in support of” or “attached to” combat arms units, even

27 though these women perform the same functions as men in those units. The effect of the

28 policy and practice is to relegate women, literally and figuratively, to a “supporting role”

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1 in our Armed Forces based on stereotypes about women and assumptions about battlefield

2 conditions that do not reflect the reality that women, including the individual Plaintiffs,

3 are already serving in combat situations, and doing so with distinction. Moreover, as the

4 DoD has itself admitted, its exclusionary policy and practice create separate classes of

5 military personnel, which fosters an environment in which sexual harassment and sexual

6 assault are more likely to occur.

7

64. The exclusion of women from many of the pathways to military leadership

8 affects women both during and after their military careers. Success in the military often

9 translates into success in business or other civilian fields, especially for those recruits who

10 lack access to higher education or well-paying jobs. Indeed, the Army and the Marine

11 Corps use this fact in advertisements targeting both men and women. But the truth is that,

12 because so many combat positions are closed to women, promises of leadership

13 experience and career advancement ring hollow.

14

65. For example, the Marine Corps has run advertising depicting a woman

15 commanding a group of men, with the tag line “There are no female Marines. Only

16 Marines.” Douglas Quenqua, Sending in the Marines (To Recruit Women), N.Y. Times,

17 April 21, 2008. According to the advertising executive responsible for the ad campaign,

18 “[t]he message is that the Marine Corps offers a unique opportunity to earn that title

19 [commander] and be shoulder to shoulder with your male counterparts. . . . That’s an

20 important aspect for the young women seeking that challenge. . . .” Id. A more accurate

21 tagline for this ad would have been “There are no female Marines assigned to certain

22 ground combat positions and MOSs. Only male Marines. You aren’t allowed to lead men

23 into battle, and if you do, you will not receive credit for it and your careers will suffer as a

24 result.”

25

66. In addition, women veterans have been harmed and continue to be harmed

26 by the DoD’s exclusionary policy and practice. As a result of this policy and practice,

27 women have faced challenges in obtaining benefits and treatment for combat-related

28

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1 stress, among other benefits, because those processing veterans’ claims do not believe that

2 women can be “in combat.”

3

67. Each of the individual Plaintiffs has suffered and will continue to suffer

4 harm as a result of the DoD’s exclusionary policy and practice, as alleged herein.

5

68. The DoD’s exclusionary policy and practice will also continue to deprive

6 servicewomen of full and equal recognition of their combat leadership and experiences.

7 For example, the Special Operations Command plan states that it will study the effects of

8 having women serve in austere environments with small teams. The Marine Corps plan

9 describes a series of trials and experiments to study whether and how women can work

10 within all-male combat units without affecting the ability of male soldiers to bond with

11 one another. Neither plan mentions the fact that the Plaintiffs and many other

12 servicewomen served alongside Special Forces, Marine infantry units, and other small

13 combat teams in actual battlefield conditions, as previously described in ¶¶ 15-42. By

14 claiming that the integration of women into small ground combat teams and missions is a

15 brand-new experiment, rather than the culmination of two wars’ worth of hard-fought

16 experience, the DoD’s current policy and practice diminish, and in many instances negate,

17 the actual experiences of the individual Plaintiffs and other battle-tested servicewomen in

18 that they communicate both to the military and to the rest of the world that it is an open

19 question as to whether women can serve in the very conditions that the individual

20 Plaintiffs and other servicewomen have served. This again perpetuates a culture in the

21 military in which women are viewed as second class to the men they have served

22 alongside.

23 THE DOD’S CURRENT EXCLUSIONARY POLICY AND PRACTICE ARE NOT JUSTIFIED BY ANY IMPORTANT GOVERNMENTAL OBJECTIVE
24

25

69. The DoD’s exclusionary policy and practice are not supported by an

26 “exceedingly persuasive” justification that is substantially related to “important

27 governmental objectives.” U.S. v. Virginia, 518 U.S. at 533. Historically, the exclusion

28 of women from combat positions, careers, and schools was based on the presumption that

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1 no woman had the necessary physical strength and mental toughness required to serve in

2 combat. Yet each of the individual Plaintiffs in this action has demonstrated these

3 qualities while serving in combat. Currently, the DoD appears to base its ongoing

4 exclusionary policy and practice in part on a purported lack of information about how the

5 presence of women would affect combat units conducting missions in rigorous conditions.

6 Yet each of the individual Plaintiffs in this action has a wealth of wartime experience

7 either conducting missions with such teams, leading other women serving in close

8 quarters with combat and Special Operations teams, or both. As a result of the DoD’s

9 current exclusionary policy and practice, however, the service and sacrifice of these

10 women have not been and will not be fully recognized because of, and only because of,

11 their gender.

12

70. The Plaintiffs are not alone in suffering these harms. Hundreds of

13 thousands of women have served in the Armed Forces, including more than 280,000 in the

14 Iraq and Afghanistan conflicts. Women currently constitute 14.5 percent of the 1.4

15 million active military personnel, and 20 percent of new recruits. Of the women who

16 have been deployed since September 11, 2001, 85 percent reported serving in a combat

17 zone or in an area where they drew imminent danger pay or hostile fire pay, and nearly

18 half reported being involved in combat operations. Many of those women have served in

19 combat with distinction. Many have gone on missions or been stationed in austere,

20 battlefield environments with small groups of combat arms and Special Operations

21 soldiers and Marines. But they have been deprived of the training, opportunities,

22 assignments, and recognition they deserve because, under the 1994 directive, they cannot

23 “officially” be assigned or admitted to many ground combat units, occupational

24 specialties, courses, and schools.

25

71. The DoD appears to take the position that while the elimination of

26 categorical, gender-based exclusionary assignment policy and practice may be a

27 worthwhile goal, further research is required before actually mandating that its

28 subdivisions open all schools, MOSs, and units to qualified women. Such an argument

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1 can no longer justify the wholesale exclusion of women, if it ever could. The DoD has

2 been on notice for decades that it must have an exceedingly persuasive justification for

3 any categorical exclusion based on sex and that the justification must be substantially

4 related to an important governmental objective. Even if there existed, in the past, such a

5 justification, the realities of the modern military and battlefield, and particularly the

6 experience of women serving in combat in two long wars in Iraq and Afghanistan, have

7 eliminated it.

8

72. The DoD’s purported concerns about the possible effects of integrating

9 women on “unit cohesion” certainly cannot warrant the continued exclusion of women

10 from units and career fields. For example, the Marine Corps implementation plan states

11 explicitly that the Marines intend to consider whether allowing women into closed MOSs

12 will impact “unit cohesion.” That hoary phase has long been employed in attempts to

13 justify discrimination against African-American servicemembers, openly gay and lesbian

14 servicemembers, and women. For example, Army Chief of Staff Omar Bradley

15 contended in 1949 (in a formal written statement to a Presidential Commission) that the

16 integration of African-American soldiers into military units “might seriously affect morale

17 and thus affect battle efficiency,” with “big problems” likely to arise “in living quarters

18 and social gatherings.” Maj. Laura R. Kesler, Serving with Integrity: The Rationale for

19 the Repeal of “Don’t Ask, Don’t Tell” and Its Ban on Acknowledged Homosexuals in the

20 Armed Forces, 203 Mil. L. Rev. 284, 346 (2010). Congress embraced the same reasoning

21 with respect to openly gay and lesbian soldiers in the National Defense Authorization Act

22 of 1994, which asserted that allowing gay servicemembers “would create an unacceptable

23 risk to the high standards of morale, good order and discipline, and unit cohesion that are

24 the essence of military capability.” National Defense Authorization Act for Fiscal Year

25 1994, Pub. L. No. 103-160, § 571, 107 Stat. 1547, 1670 (1993) (codified at 10 U.S.C. §

26 654 (2000)). That year, the Army made the same argument in reaffirming its longstanding

27 opposition to the full integration of servicewomen in combat units. The Army explained

28 that the presence of women would inhibit “bonding and unit cohesion,” which are “best

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1 developed in a single gender all male environment.” Carla Crandall, The Effects of

2 Repealing Don’t Ask, Don’t Tell: Is the Combat Exclusion the Next Casualty in the March

3 Toward Integration?, 10 Geo. J. L. & Pub. Pol’y 15, 30 (2012). These arguments have

4 been made for more than 150 years to prevent women from obtaining educational and

5 employment opportunities. See, e.g., Virginia, 518 U.S. at 542-44 (pointing out that

6 “women seeking careers in policing encountered resistance based on fears that their

7 presence would ‘undermine male solidarity.’”) The DoD’s purported concerns about

8 “unit cohesion” are based on fixed notions concerning the roles and preferences of males

9 and females that cannot and do not justify categorical gender-based exclusions from

10 military service.

11

73. The DoD’s exclusionary policy and practice are also not justified by broad

12 generalizations about “military effectiveness” or “force readiness.” On the contrary, far

13 from advancing these objectives, current policy and practice undermine them, placing

14 additional strain on already overburdened men and women serving in our Armed Forces.

15

74. The DoD’s exclusionary policy and practice limit recruitment of the best

16 talent because women considering a military career know they will be barred from

17 positions viewed as necessary to the core mission of the Armed Forces and career

18 advancement. They are shut out of prestigious schools and courses, critical MOSs, and

19 career-broadening assignments. Given that recruitment is an issue faced by the Armed

20 Forces today, this limitation clearly impedes military effectiveness.

21

75. For women already serving in the Armed Forces whose career goals and

22 advancement have been and will be limited by the DoD’s exclusionary policy and

23 practice, the policy and practice prevent retention of the best talent and of experienced

24 leaders, as evidenced by the choice of individual Plaintiffs in this action to leave active

25 duty for the reserves. These Plaintiffs, like many of their fellow servicewomen who are

26 being pushed out of the Armed Forces by the effects of the DoD’s exclusionary policy and

27 practice, are decorated servicewomen with proven track records in combat and combat

28 leadership. Other servicewomen, like Plaintiff Staff Sergeant Jennifer Hunt, are deprived

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1 by the DoD’s policy and practice of the information they need to make re-enlistment and

2 other military career decisions, because they still do not know whether or when certain

3 schools and units will be opened to qualified women.

4

76. The DoD’s exclusionary policy and practice also prevent the full

5 development and utilization of the skills and talents of servicemembers, because women

6 are barred from certain training programs and courses and because commanders cannot

7 “officially” assign women to closed positions for which they are otherwise qualified. This

8 ties commanders’ hands on the ground by limiting the pool of talent from which they can

9 draw when assembling teams for missions.

10

77. The DoD’s exclusionary policy and practice cannot be justified on the

11 ground that combat takes place well forward on the battlefield, for the asymmetric nature

12 of modern warfare has rendered such notions obsolete. Some women have reported being

13 told that they cannot go on night-time missions because those constitute “combat.” Others

14 have been prevented by commanders from sitting in the front cars of a convoy, on the

15 theory that those are most likely to hit IEDs. Still others are told they cannot be gunners

16 on vehicles, or that they should wait until after the beginning of a raid to go in. Similar

17 irrational exclusions occur in the training arena; women have been shut out of all-male

18 courses even when those courses are relevant to the jobs they are being deployed to

19 accomplish. This arbitrary and inconsistent application of the DoD’s policy and practice

20 has led to confusion and disruptions in operations.

21

78. The practice of “attaching” women to combat arms units, or creating

22 temporary teams that work “in support of” combat arms units, rather than assigning

23 women to the units directly, also disrupts operations and comes with its own dangers. The

24 women who are sent to patrol with combat arms units frequently do not train with these

25 units or deploy with them, and therefore must quickly learn that individual unit’s mode of

26 operating and communicating once in the field.

27

79. The Plaintiffs who were in charge of or participated in FETs report that

28 members of the infantry and other combat battalions they supported frequently were as

FIRST AMENDED COMPLAINT FOR

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CASE NO. C 12-06005 EMC

Case3:12-cv-06005-EMC Document18 Filed10/31/13 Page26 of 29

1 concerned as they were by the disruptions in operations caused by the combat exclusion

2 policy. The FETs, for example, were integral to the combat arms units they patrolled

3 with, and the policy’s mandate of pulling the women out of missions and requiring them

4 to “reset,” or return to, the forward operating base every 45 days interrupted and interfered

5 with combat operations.

6

80. The DoD’s exclusionary policy and practice have also resulted in women’s

7 combat service being hidden from official consideration, ignored by DoD decisionmakers,

8 and conducted under unofficial auspices and temporary programs like FET, Cultural

9 Support Teams, and other temporary duty assignments. This denial of women’s combat

10 service not only harms our military’s effectiveness, but also allows the DoD now to assert

11 that it must take time to study the possible effects on “unit cohesion” from the presence of

12 women alongside male soldiers. Embarking upon research as though the slate were blank

13 will further contribute to the loss of an entire generation of women, like the Plaintiffs,

14 who have actual on-the-ground experience in combat. Our Armed Forces will lose not

15 only talented leaders, soldiers, and Marines, but the experience and lessons they and their

16 peers learned from years of warfighting.

17

81. For all of the foregoing reasons, the DoD’s categorical exclusion of the

18 individual Plaintiffs and all women from many thousands of ground combat positions,

19 units, MOSs, and training opportunities, regardless of their abilities, is not and cannot be

20 justified by generalized concerns about “military effectiveness.”

21

FIRST CLAIM FOR RELIEF

22

DENIAL OF EQUAL PROTECTION UNDER THE FIFTH AMENDMENT

23

82. Under the DoD’s existing policy and practice, women are categorically

24 excluded from assignment to many units whose primary mission is to engage in direct

25 combat on the ground in the Armed Forces. They are also excluded from entire Military

26 Occupational Specialties, schools, courses, and thousands of positions across the Armed

27 Forces.

28

FIRST AMENDED COMPLAINT FOR

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DECLARATORY AND INJUNCTIVE RELIEF,

CASE NO. C 12-06005 EMC

Case3:12-cv-06005-EMC Document18 Filed10/31/13 Page27 of 29

1

83. The challenged exclusion is based solely on sex and is not justified by any

2 important governmental objective.

3

84. As set forth in this Complaint, the Plaintiffs are each harmed by the DoD’s

4 policy and practice challenged in this case.

5

85. The challenged policy and practice therefore violate the Plaintiffs’ rights to

6 the equal protection of the law, as secured by the Fifth Amendment of the Constitution.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

FIRST AMENDED COMPLAINT FOR

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DECLARATORY AND INJUNCTIVE RELIEF,

CASE NO. C 12-06005 EMC

Case3:12-cv-06005-EMC Document18 Filed10/31/13 Page28 of 29

1

PRAYER FOR RELIEF

2

WHEREFORE, the Plaintiffs pray for judgment as follows:

3

1. Plaintiffs respectfully request that this Court, pursuant to 28 U.S.C. § 2201,

4 enter a declaratory judgment stating that the DoD’s exclusionary policy and practice

5 violate the Plaintiffs’ rights to the equal protection of the laws under the Fifth

6 Amendment;

7

2. Plaintiffs respectfully request that this Court enter an order: (1) enjoining

8 Defendant from enforcing or applying its gender-based exclusionary policy and practice;

9 and (2) requiring the DoD to allow women to apply for all combat-related positions and

10 schools and to be considered on their individual merit;

11

3. Plaintiffs respectfully request costs of suit, including reasonable attorneys’

12 fees; and

13

4. Plaintiffs respectfully request all further relief to which they may be justly

14 entitled.

15 DATED: October 31, 2013

MUNGER, TOLLES & OLSON LLP

16

17

By

/s/ Rosemarie T. Ring

18 ROSEMARIE

T. RING

19

Attorneys for Plaintiffs MARY JENNINGS HEGAR, JENNIFER

20

HUNT, ALEXANDRA ZOE BEDELL, COLLEEN FARRELL, AND SERVICE

21

WOMEN’S ACTION NETWORK

Additional Counsel: 22

STEVEN M. PERRY (SBN 106154) 23 MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue, 35th Floor 24 Los Angeles, CA 90071-1560
Telephone: (213) 683-9100 25 Facsimile: (213) 687-3702
Email: steven.perry@mto.com 26

27

28

FIRST AMENDED COMPLAINT FOR

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DECLARATORY AND INJUNCTIVE RELIEF,

CASE NO. C 12-06005 EMC

Case3:12-cv-06005-EMC Document18 Filed10/31/13 Page29 of 29

1 LENORA M. LAPIDUS [pro hac vice] ARIELA MIGDAL [pro hac vice]
2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION WOMEN’S RIGHTS PROJECT
3 125 Broad Street, 18th Floor New York, NY 10004
4 Telephone: (212) 549-2668 Facsimile: (212) 549-2580
5 Email: llapidus@aclu.org Email: a migdal@aclu.org
6

7

8

9 22009204.2

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

FIRST AMENDED COMPLAINT FOR

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DECLARATORY AND INJUNCTIVE RELIEF,

CASE NO. C 12-06005 EMC

 
 1 ROSEMARIE T. RING (SBN 220769) rose.ring@mto.com
2 MARI OVERBECK (SBN 261707) mari.overbeck@mto.com
3 MUNGER, TOLLES & OLSON LLP 560 Mission Street
4 Twenty-Seventh Floor San Francisco, California 94105-2907
5 Telephone: (415) 512-4000 Facsimile: (415) 512-4077
6 MARGARET C. CROSBY (SBN 56812)
7 mcrosby@aclunc.org ELIZABETH O. GILL (SBN 218311)
8 egill@aclunc.org AMERICAN CIVIL LIBERTIES UNION
9 FOUNDATION OF NORTHERN CALIFORNIA, INC.
10 39 Drumm Street San Francisco, CA 94111
11 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
12 Attorneys for Plaintiffs
13

STUART F. DELERY Principal Deputy Assistant Attorney General
MELINDA HAAG United States Attorney
ALEX TSE Chief, Civil Division ANTHONY J. COPPOLINO
Deputy Branch Director CAROLINE LEWIS WOLVERTON caroline.lewis-wolverton@usdoj.gov
District of Columbia Bar No. 496433 Senior Counsel Civil Division, Federal Programs Branch U.S. Department of Justice P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 514-0265 Facsimile: (202) 616-8470
Attorneys for Defendant CHUCK HAGEL

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

17

18 MARY JENNINGS HEGAR, JENNIFER HUNT, ALEXANDRA ZOE BEDELL,
19 COLLEEN FARRELL, AND SERVICE WOMEN’S ACTION NETWORK,
20 Plaintiffs,
21 vs.
22 CHUCK HAGEL, Secretary of Defense,
23 Defendant.
24

Case No. 12-CV-06005 EMC
STIPULATION AND [PROPOSED] ORDER REGARDING A LIMITED STAY OF THIS MATTER (Modified)
Judge: Hon. Edward M. Chen

25

26

27

28
23350026.1

CASE NO. 12-6005 EMC STIPULATION AND [PROPOSED] ORDER

1

STIPULATION

2

Plaintiffs Mary Jennings Hegar, Jennifer Hunt, Alexandra Zoe Bedell, Colleen Farrell and

3 Service Women’s Action Network and Defendant Chuck Hagel, Secretary of Defense

4 (“Secretary”) (collectively, “the parties”), by and through their respective counsel, submit this

5 Stipulation and Proposed Order. The parties have met and conferred and believe that the

6 following facts and circumstances establish good cause for a limited stay of the case, subject to

7 certain conditions set forth below.

8

1. On November 27, 2012, Plaintiffs filed their Complaint for Declaratory and

9 Injunctive Relief challenging as unconstitutional the 1994 direct ground combat definition and

10 assignment rule.

11

2. On January 24, 2013, the Secretary and Chairman of the Joint Chiefs of Staff

12 issued a directive rescinding the 1994 direct ground combat definition and assignment rule

13 pursuant to which “[i]ntegration of women into newly opened positions and units will occur as

14 expeditiously as possible, considering good order and judicious use of fiscal resources, but must

15 be completed no later than January 1, 2016.” Exceptions to the directive may be requested by the

16 Military Services (Army, Navy, Air Force and Marine Corps) and the U.S. Special Operations

17 Command (“SOCOM”) (referred to collectively as the “Services”), but must be “narrowly tailored

18 and based on a rigorous analysis of factual data regarding the knowledge, skills and abilities

19 needed for the position” and personally approved first by the Chairman of the Joint Chiefs of Staff

20 and then by the Secretary. The Military Services were ordered to submit plans for implementation

21 of the directive to the Secretary by May 15, 2013.

22

3. In light of the above, the parties filed a stipulation agreeing to meet and confer after

23 the May 15, 2013 deadline for submission of the implementation plans and allowing the Secretary

24 thirty (30) days after that meet and confer to respond to the Complaint (Dkt 9), and a stipulation

25 and proposed order continuing the initial case management conference and related deadlines until

26 after the parties meet and confer on the implementation plans (Dkt 10). The Court entered the

27 proposed order on February 8, 2013 (Dkt 11).

28
23350026.1

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CASE NO. C-12-6005 EMC STIPULATION AND [PROPOSED] ORDER

1

4. On May 30, 2013, the parties held a telephone conference. Defendant notified

2 Plaintiffs that the Military Services had submitted implementation plans to the Secretary, but that

3 the plans would not be made public because the Department of Defense (“DoD”) was treating

4 them as pre-decisional and deliberative. Defendant further notified Plaintiffs that, pursuant to the

5 National Defense Authorization Act of 2013, section 526, H.R. 4310, the DoD would submit a

6 report to Congress in July 2013 on the feasibility of developing gender-neutral occupational

7 standards for military occupational specialties currently closed to women and that DoD anticipated

8 that the report would provide some information about the implementation plans.

9

5. In light of the above, the parties filed a stipulation and proposed order agreeing to

10 hold a further meet and confer by August 20, 2013 and allowing the Secretary thirty (30) days

11 after that meet and confer to respond to the Complaint, which the Court entered on June 11, 2013

12 (Dkt 14).

13

6. On June 18, 2013, DoD made the implementation plans public. DoD completed

14 the above-referenced report to Congress in July 2013 and submitted a written report to Congress

15 on August 2, 2013.

16

7. Beginning on August 20, 2013, the parties held several telephone conferences in

17 which they discussed, among other things, the implementation plans. Plaintiffs also requested

18 information regarding the date by which Defendant will announce whether certain positions,

19 specialties, units, and schools of interest to Plaintiffs will continue to be closed to women and

20 informed Defendant that they intended to file an Amended Complaint.

21

8. On September 13, 2013, the parties filed a stipulation and proposed order setting a

22 schedule for Plaintiffs to file an Amended Complaint and for Defendant to respond to the

23 Amended Complaint, which the Court entered on September 18, 2013 (Dkt 17).

24

9. On October 31, 2013, Plaintiffs filed an Amended Complaint (Dkt 18). Plaintiffs

25 also served discovery requests on Defendant on December 3, 2013.

26

10. On December 19, 2013, Defendant filed a motion to dismiss the Amended

27 Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure

28 12(b)(1), arguing, inter alia, that Plaintiffs’ challenge to the 1994 direct ground combat definition

23350026.1

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CASE NO. C-12-6005 EMC STIPULATION AND [PROPOSED] ORDER

1 and assignment rule is not ripe because the implementation process is ongoing and set to be

2 completed by January 1, 2016 (Dkt 19). On January 21, 2014, Defendant filed a motion for

3 protective order seeking a stay of all discovery pending a decision on Defendant’s motion to

4 dismiss, arguing, inter alia, that a stay is required to protect the collaborative environment and to

5 avoid chilling the deliberative process in which the DoD and the Services are engaged as they

6 work toward the January 1, 2016 implementation deadline (Dkt 23).

7

11. On January 23, 2014, the Court entered a stipulation and proposed order setting a

8 schedule to allow for resolution of Defendant’s motion for protective order before the deadline for

9 Plaintiffs to file their opposition to Defendant’s motion to dismiss and setting a deadline for

10 Plaintiffs’ opposition based on the outcome of Defendant’s motion for protective order (Dkt 24).

11

12. On February 4, 2014, Plaintiffs filed an opposition to Defendant’s motion for

12 protective order, arguing, inter alia, that their challenge to the 1994 direct ground combat

13 definition and assignment rule is ripe and that discovery should be allowed to proceed (Dkt 25).

14

13. On February 27, 2014, the Court held a hearing on Defendant’s motion for

15 protective order and issued a minute order stating that the Court would defer its ruling on the

16 motion pending completion of briefing on Defendant’s motion to dismiss and then “consider the

17 relevance and probative value of the requested documents.” (Dkt 29).

18

14. On April 7, 2014, the parties held a telephone conference and agreed, subject to the

19 Court’s approval, to a short continuance of the briefing schedule and hearing date on Defendant’s

20 motion to dismiss to allow the parties time to discuss a potential resolution of the pending

21 motions. On April 10, 2014, the Court approved the parties’ stipulation to that effect (Dkt 35).

22

15. The parties subsequently engaged in a meet-and-confer process and, based on and

23 without conceding their respective positions on the pending motions, agreed to seek a limited stay

24 of the case until the January 1, 2016 deadline for implementing the rescission of the 1994 direct

25 ground combat definition and assignment rule, pursuant to which: (1) the briefing and hearing on

26 Defendant’s motion to dismiss would be suspended; (2) the parties’ discovery obligations (other

27 than obligations to preserve relevant information, including information responsive to pending

28 discovery requests) would be suspended; (3) the parties would submit a joint status report to the

23350026.1

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CASE NO. C-12-6005 EMC STIPULATION AND [PROPOSED] ORDER

1 Court at six-month intervals that would convey to the Court DoD’s most recent notifications to

2 Congress, along with any other publicly available information on the status of implementation;

3 and (4) either party can request that the Court schedule a status conference and/or set a briefing

4 schedule and hearing on whether the limited stay should be lifted.

5

16. In light of the foregoing, the parties respectfully request that the Court enter a

6 limited stay of the case as set out in the Proposed Order, filed herewith.

7

8 DATED: May 1, 2014

MUNGER, TOLLES & OLSON LLP

9 10 11 12 13
DATED: May 1, 2014 14 15 16 17

By: /s/ Rosemarie T. Ring
ROSEMARIE T. RING
Attorneys for Plaintiffs MARY JENNINGS HEGAR, JENNIFER HUNT, ALEXANDRA ZOE BEDELL, COLLEEN FARRELL, AND SERVICE WOMEN’S ACTION NETWORK STUART F. DELERY Principal Deputy Assistant Attorney General MELINDA HAAG United States Attorney ALEX TSE Chief, Civil Division ANTHONY J. COPPOLINO Deputy Branch Director

18

19 20 21 Additional Counsel:

/s/ Caroline Lewis Wolverton
CAROLINE LEWIS WOLVERTON U.S. Department of Justice Attorneys for Defendant CHUCK HAGEL

22 STEVEN M. PERRY (SBN 106154)

23

MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor

24

Los Angeles, CA 90071-1560 Telephone: (213) 683-9100

25

Facsimile: (213) 687-3702 Email: steven.perry@mto.com

26

Telephone: Facsim

27

LENORA M. LAPIDUS [pro hac vice] ARIELA MIGDAL [pro hac vice] AMERICAN CIVIL LIBERTIES UNION FOUNDATION WOMEN’S RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004
(212) 549-2668 ile: (212) 549-2480 Email: Llapidus@aclu.org Email: Amigdal@aclu.org

28

23350026.1

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CASE NO. C-12-6005 EMC STIPULATION AND [PROPOSED] ORDER

1

ATTESTATION PURSUANT TO GENERAL ORDER 45

2

I, Rosemarie T. Ring, am the ECF User whose identification and password are being used

3 to file this STIPULATION AND [PROPOSED] ORDER REGARDING A LIMITED STAY OF

4 THIS MATTER. In compliance with General Order 45.X.B, I hereby attest that all signatories

5 have concurred in this filing.

6

7

8

9

10

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15

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23350026.1

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CASE NO. C-12-6005 EMC STIPULATION AND [PROPOSED] ORDER

1

[PROPOSED] ORDER

2

Pursuant to stipulation, and based on good cause shown, the Court enters a limited stay of

3 this case until January 1, 2016, pursuant to which:

4

(1) the briefing and hearing on Defendant’s motion to dismiss is hereby suspended;

5

(2) the parties’ discovery obligations (other than obligations to preserve relevant

6 information, including information responsive to pending discovery requests) are hereby

7 suspended;

8

(3) the parties shall submit a joint status report to the Court at six-month intervals that

9 conveys DoD’s most recent notifications to Congress, along with any other publicly available

10 information on the status of implementation;

11

(4) either party may request that the Court schedule a status conference and/or set a

12 briefing schedule and hearing on whether the limited stay should be lifted at any time; and

UNITED S ALIFORNIA

OURT NORTH

13

(5) the first joint status report shall be due on September 4, 2014. The 9/4/14 CMC

is reset for 11/13/14 at 9:30 a.m. A joint CMC Statement shall be

14 filed by 11/6/14. The motion to dismiss (Docket #19) and motion

15 Dated: for protective order (Docket #23H)onaorraeblehereby terminated.
16 ParUtniiteesd to renotice those motions

TAStTaEtEeSsdwDDaiIsrtSdriTMctR.JICuCdhgTeenC

17 at a later time). 18 19 20

IT IASSSMOOODRIDFIEERDED
Judge Edward M. Chen

21 22

ERN DISTRICT OF C

23

24

25

26

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23350026.1

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CASE NO. C-12-6005 EMC STIPULATION AND [PROPOSED] ORDER

 
 Case 3:12-cv-06005-EMC Document 118 Filed 05/01/18 Page 1 of 23

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 SERVICE WOMEN‟S ACTION NETWORK,
8 Plaintiff,
9 v.
10
JAMES N MATTIS, 11
Defendant. 12

Case No. 12-cv-06005-EMC
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Docket No. 110

13

The instant action was initially filed in November 2012. The plaintiffs at that time

14 included individuals as well as the Service Women‟s Action Network (“SWAN”). They

15 challenged as unconstitutional “the official policy of the Department of Defense („DoD‟) that

16 categorically excludes . . . women[] from assignments to units whose primary mission is to engage

17 in direct ground combat.” Compl. ¶ 1. In January 2013, the then-Secretary of Defense announced

18 that that policy (which dated back to 1994) was rescinded “effective immediately.‟” See SAC ¶ 3.

19 In spite of the Defense Secretary‟s statement, exclusion appeared to continue. In December 2015,

20 the DoD announced that there would be no exceptions to “„the full implementation of . . .

21 rescission.‟” SAC ¶ 4. In proceedings before this Court, the government represented that “[t]he

22 Military Services will use the same procedures that are currently used to select, assign, and train

23 male service members.” Docket No. 66 (Joint CMC St. at 7).

24

Notwithstanding the above, there remains a dispute in the instant case because, as alleged

25 by the now sole remaining plaintiff SWAN, there are two new policies in place regarding

26 placement of women in combat positions, both of which are unconstitutional based on sex

27 discrimination. Currently pending before the Court is the current Defense Secretary‟s motion to

28 dismiss. The Secretary argues that: (1) venue is improper in this District; (2) the case raises issues

Case 3:12-cv-06005-EMC Document 118 Filed 05/01/18 Page 2 of 23

United States District Court Northern District of California

1 that are not justiciable; and (3) SWAN lacks standing to sue.

2

Having considered the parties‟ briefs and accompanying submissions, as well as the oral

3 argument of counsel, the Court hereby GRANTS the Secretary‟s motion based on standing only.

4 SWAN has leave to file an amended complaint to address its standing to bring this case.

5

I.

FACTUAL & PROCEDURAL BACKGROUND

6

In the operative second amended complaint (“SAC”), SWAN challenges two policies that

7 came about following the rescission of the policy that categorically excluded women from combat:

8 (1) the “Leaders First” policy, which is used by both the Army and Marines; and (2) a Marines

9 training policy that segregates trainees by gender.

10

As alleged in the SAC, the Leaders First policy “require[s] junior enlisted women to wait

11 to enter combat battalions until two or more „women leaders‟ join[] those battalions.” SAC ¶ 5;

12 see also SAC ¶ 26 (alleging that “the Army decided that „Leaders First‟ meant that two or more

13 women officers or NCOs [noncommissioned officers], of any rank (not midgrade or senior

14 women), needed to be assigned at the battalion level before junior enlisted women could be

15 assigned to that battalion”) (emphasis in original). According to SWAN, for the Army, the result

16 of the policy is that, “in practice, brand new women infantry and armor second lieutenants are

17 being assigned to just two brigades, one at Fort Bragg [in North Carolina] and one at Fort Hood

18 [in Texas]. No other infantry or armor brigade has been opened to women.” SAC ¶ 27. SWAN

19 also alleges that “the problem is even more severe” in the National Guard where “only two states

20 have met the „Leaders First‟ requirement, Colorado and New Hampshire.” SAC ¶ 29 (emphasis in

21 original).

22

As for the Marines training policy, it “segregate[s] recruits who are entering into combat

23 MOSs [military occupational specialties] along gender lines during their training for those

24 positions. The Marines have, for example, an „all-female Fourth Recruit Training Battalion.‟”

25 SAC ¶ 7.

26

According to SWAN, the above policies are based “at least in part” on the “animus

27 towards servicewomen on the part of the DoD and the Administration. Defendant Mattis,

28 President Trump, and the President‟s close advisors have expressed extreme hostility towards

2

Case 3:12-cv-06005-EMC Document 118 Filed 05/01/18 Page 3 of 23

United States District Court Northern District of California

1 Secretary Panetta‟s January 2013 announcement that women would be allowed to serve in some or

2 all combat units.” SAC ¶ 37.

3

II. DISCUSSION

4

As noted above, the Secretary makes three arguments in the pending motion to dismiss: (1)

5 venue is improper in this District; (2) the case raises issues that are not justiciable; and (3) SWAN

6 lacks standing to sue. Each argument is addressed below.

7 A. Venue

8

Venue in the instant case is governed by subsection (e) of 18 U.S.C. § 1391. That

9 provision states as follows:

10

(e) Actions Where Defendant Is Officer or Employee of the

United States. 11

(1) In general. A civil action in which a defendant is an

12

officer or employee of the United States or any

agency thereof acting in his official capacity or under

13

color of legal authority, or an agency of the United

States, or the United States, may, except as otherwise

14

provided by law, be brought in any judicial district in

which (A) a defendant in the action resides, (B) a

15

substantial part of the events or omissions giving rise

to the claim occurred, or a substantial part of property

16

that is the subject of the action is situated, or (C) the

plaintiff resides if no real property is involved in the

17

action.

18 28 U.S.C. § 1391(e). SWAN, as the plaintiff, has “the burden of showing that venue was properly

19 laid in the Northern District of California.” Piedmont Label Co. v. Sun Garden Packing Co., 598

20 F.2d 491, 496 (9th Cir. 1979).

21

The dispute in the instant case is whether “a substantial part of the events or omissions

22 giving rise to the claim occurred” in this District. Id. According to the Secretary, that standard

23 has not been satisfied:

24

[N]one of the events underlying Plaintiff‟s claims occurred in the

Northern District of California, given that the government‟s

25

decisions concerning women in combat were made in or around

Washington, D.C. And, while Plaintiff asserts that “[t]he challenged

26

policies and practices are enforced, and their impact is felt,

throughout the Northern District of California . . . where the DoD

27

maintains several bases,” the events giving rise to Plaintiff‟s equal

protection claims are Defendant‟s enactment of the “policies and

28

practices” related to women in combat, which occurred in [or

3

Case 3:12-cv-06005-EMC Document 118 Filed 05/01/18 Page 4 of 23

United States District Court Northern District of California

around] Washington, D.C. 1

2 Mot. at 20-21 (emphasis in original).

3

The Secretary‟s argument is not persuasive. SWAN asserts a constitutional claim, which is

4 akin to a tort claim. For instance, courts have drawn a parallel between § 1983 claims based on

5 constitutional violations and tort common law. See, e.g., OSU Student All. v. Ray, 699 F.3d 1053,

6 1072 n.12 (9th Cir. 2012) (stating that, “like common law torts, constitutional torts require

7 proximate cause”); Lukovsky v. City & Cty. of S.F., 535 F.3d 1044, 1048 (9th Cir. 2008) (stating

8 that, “[w]hen, as here, a federal civil rights statute does not include its own statute of limitations,

9 federal courts borrow the forum state‟s limitations period for personal injury torts, which the

10 parties agree in this case is one year under California law”); Ziegler v. Indian River Cty., 64 F.3d

11 470, 474 (9th Cir. 1995) (stating that “[a] section 1983 claim for deprivation of a constitutional

12 right is more akin to a tort claim than a contract claim” and “therefore analyz[ing] the question of

13 purposeful availment [for personal jurisdiction] using the tort-case standard”); see also Johnson v.

14 City of Seattle, 474 F.3d 634, 638 (9th Cir. 2007) (stating that, “[l]ike individual state officials,

15 municipalities are only liable under Section 1983 if there is, at minimum, an underlying

16 constitutional tort”).

17

Therefore, for purposes of venue under § 1391, the Court looks to the general rule that, “in

18 a tort action, the locus of the injury [is] a relevant factor.” Myers v. Bennett Law Offices, 238 F.3d

19 1068, 1076 (9th Cir. 2001). As noted in one well-established legal treatise, “[i]n tort cases, courts

20 tend to focus on where the allegedly tortious actions took place and where the harms were felt”

21 when considering whether a substantial part of the events or omissions giving rise to the claim did

22 or did not occur in the forum district. Wright & Miller, 14D Fed. Prac. & Proc. Juris. § 3806 (4th

23 ed.) (emphasis added; also noting that personal jurisdiction and venue should not be equated with

24 one another but “[b]ecause venue under Section 1391(b)(2) is based upon a connection between

25 the claim and the forum district, it is not surprising that some of the factors relevant to the venue

26 assessment will overlap with those relevant to personal jurisdiction”). See, e.g., Seidel v. Kirby,

27 No. JKB-17-0292, 2017 U.S. Dist. LEXIS 178397, at *15 (D. Md. Oct. 27, 2017) (noting that

28 “[t[he legally relevant „occurrence‟ in a defamation action is where the publication occurred, i.e.[,]

4

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1 where third persons were exposed to the material that would tend to damage the plaintiff‟s

2 reputation”) (emphasis omitted); Horacek v. Burnett, No. 07-11885, 2008 U.S. Dist. LEXIS

3 121905, at *4-5 (E.D. Mich. Jan. 9, 2008) (noting that, “[i]n an action involving a state agency or

4 department, . . . it is not unusual that the defendant will be located in the state capitol” but “[t]hat

5 does not mean that all such cases must be brought in the Western District, even when the named

6 defendant is located there”; e.g., “where action taken in the state capitol has an effect in the other

7 district, venue in that other district is proper”).

8

In addressing constitutional claims, courts have indeed looked to the place of injury in

9 assessing venue. See Cabellero v. Taylor, No. 12-cv-8645, 2013 U.S. Dist. LEXIS 83459, at *8-9

10 (N.D. Ill. June 13, 2013) (in addressing a motion to transfer venue, noting that, “[a]lthough the

11 alleged constitutional violation of forcing Cabellero to sign the registration forum under duress

12 took place in the Central District, Cabellero lives and suffered the effects of the registration form

13 publication in the Northern District” and “[t]here is some authority in this district for determining

14 that venue is proper in the location in which a plaintiff felt the effects of a decision made in

15 another district”). One district court has even suggested that, in some cases, the place of impact is

16 more important than the place of decisionmaking for purposes of § 1391: “In a case brought on

17 First Amendment grounds, impact becomes the most important part of the case” and

18 “[m]inimizing the impact of the statute, compared to its adoption or administration, would

19 marginalize the Plaintiff‟s substantive First Amendment claims under the guise of a venue

20 statute.” Kalman v. Cortes, 646 F. Supp. 2d 738, 742 (E.D. Pa. 2009); cf. Passantino v. Johnson

21 & Johnson Consumer Products, Inc., 212 F.3d 493, 504-05 (9th Cir. 2000) (addressing Title VII‟s

22 venue provision which provides that suit may be brought in, e.g., “„any judicial district in the State

23 in which the unlawful employment practice is alleged to have been committed‟”; holding that “the

24 [Title VII venue] statute itself and analogous case law [on personal jurisdiction] suggest that venue

25 should be found where the effect of the unlawful employment practice is felt: where the plaintiff

26 works, and the decision to engage in that practice is implemented”).

27

Therefore, in analyzing venue under § 1391 venue, the Court considers not simply where

28 the decisions were made regarding the Leaders First and Marines training policies but also where

5

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1 the decisions were implemented and its effects felt. With respect to the Leaders First policy as

2 used by the Army, SWAN has shown that a substantial part of the events or omissions giving rise

3 to its claims occurred in this District. First, the Army has several bases in this District; second, the

4 policy has been implemented at those bases; and, third, the effect of the policy is that there are 5 combat units in the District which are not yet integrated as a result of the challenged policy.1 At

6 the very least, there was no integration in this District at the time SWAN filed its SAC. See Da

7 Cruz v. Princess Cruise Lines, Inc., No. C-00-0867 TEH, 2000 U.S. Dist. LEXIS 15489, at *8

8 (N.D. Cal. Oct. 5, 2000) (“[V]enue is ordinarily determined as of the time an action is

9 commenced. Thus, the state of the facts at the time the complaint was filed are the operative facts 10 for determining venue.”).2

11

As for the Marines training policy – as well as the Leaders First policy as used by the

12 Marines – the Secretary points out that there are no Marine bases in this District (and SWAN does

13 not seem to dispute such). This suggests that there are no impacts in this District as a result of the

14 two policies. Nevertheless, as SWAN points out, under the pendent venue doctrine, when one or

15 more claims are closely related (e.g., arise out of a common nucleus of operative facts), venue is

16 proper as to all claims so long as venue is established for just one claim. This is because, where

17 there is a close relationship, then judicial economy, convenience, and fairness all weigh in favor of

18 adjudication in one proceeding. See Beattie v. United States, 756 F.2d 91, 101-03 (D.C. Cir.

19 1984). See also McNeary-Calloway v. JP Morgan Chase Bank, N.A., 863 F. Supp. 2d 928, 964-65

20 (N.D. Cal. 2012) (Spero, J.) (noting, that, “[g]enerally, venue must be established as to each cause

21 of action [but,] if venue is proper on one claim, the court may find pendent venue for claims that

22 are closely related”; adding that “[t]he decision to apply pendent venue to closely related claims is

23

24 1 In his reply brief, the Secretary initially argued that, “[w]ith respect to the California Army

25

National Guard, there is in fact at least one combat unit with female leaders currently in place, and thus no legal restraint on any women joining it.” Reply at 9-10. However, the Secretary

26

subsequently corrected himself and conceded that National Guard ““[u]nits in California . . . may soon meet the leaders first policy for specific companies.” Mercer Decl. ¶ 5 (emphasis added). In

27 other words, there is still no integration yet.

28

2 For purposes of this opinion, the Court assumes that the proper reference point in time is the date the SAC was filed as opposed to, e.g., the date this action was commenced.

6

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1 a discretionary decision,” and “[a] court may consider the principles of judicial economy,

2 convenience, avoidance of piecemeal litigation, and fairness to the litigants in making its

3 decision”); Saravia v. Sessions, No. 17-cv-03615-VC, 2017 U.S. Dist. LEXIS 192905, at *42

4 (N.D. Cal. Nov. 20, 2017) (stating that, “[w]here a case is built around a „single wrong, common

5 issues of proof, and similar witnesses,‟ pendent venue is more likely to be appropriate”).

6

In the instant case, SWAN has adequately established that there is a close relationship

7 between the Leaders First policy as used in the Army and the two Marines policies. Both are part

8 of the DoD‟s implementation effort to achieve integration of women into combat units. There is

9 likely some overlap in terms of issues and proof (e.g., in the rationale of treating service

10 women/female trainees differently from service men/male trainees). Compare Beattie, 756 F.2d at

11 103 (noting that a court “decline[d] to exercise pendent venue because it determined that the

12 supplemental complaint arose out of a completely discrete set of circumstances”; indicating that

13 where there is substantial identity of issues and proof, the pendent venue doctrine should apply).

14 In any event, in his reply, the Secretary did not argue that the pendent venue doctrine does not

15 apply to the instant case because of an absence of a close relationship; instead, the Secretary

16 simply argued that venue is not proper as to any claims. See Reply at 10 n.8.

17

Accordingly, because the Court has venue over the Leaders First claim, the Court rejects

18 the Secretary‟s motion to dismiss based on improper venue.

19 B. Justiciability

20

According to the Secretary, even if venue is proper in this District, the instant case is

21 “particularly ill-suited for judicial review” because it puts at issue a military decision, namely, “the

22 method of assigning service members to combat units and of training them before they arrive to 23 those units.”3 Mot. at 8. In other words, the Secretary contends that this case is nonjusticiable.

24

In evaluating the Secretary‟s justiciability argument, the Court begins by noting that courts

25

26 3 Nonjusticiability should not be equated with a lack of jurisdiction. See Sebra v. Neville, 801

27

F.2d 1135, 1141 (9th Cir. 1986) (“Federal courts restrict their review of military decision-making not because they lack jurisdictional power to hear military disputes, but out of deference to the

28

special function of the military in our constitutional structure and in the system of national defense. Military disputes thus raise questions of justiciability rather than jurisdiction.”).

7

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1 are not compelled “to abdicate their responsibility to decide cases and controversies merely

2 because they arise in the military context.” Owens v. Brown, 455 F. Supp. 291, 300 (D.D.C.

3 1978). Rather, as the district court noted in Owens, “the deserved margin of latitude afforded the

4 political branches of government in rendering military judgments seems as a general matter to

5 figure more prominently into whether particular decisions are lawful [i.e., the merits of the case]

6 than into whether they are susceptible to review at all.” Id. In other words, deference, if any, to

7 military judgment by the courts at most informs the substantive analysis (e.g., degree of

8 deference), not justiciability.

9

The district court in Owens pointed to several examples of courts assuming justiciability

10 over claims arising out of the military context. For instance, in Schlesinger v. Vallard, 419 U.S.

11 498 (1975),

12

a Navy lieutenant brought suit to challenge a federal statutory

scheme that favored the promotion of women officers over men.

13

Plaintiff claimed that this difference in personnel policy offended

the equal protection guarantee of the fifth amendment. Ultimately,

14

plaintiff‟s challenge was rejected by the Supreme Court. But

significantly the Court did not reach this result by refraining from a

15

decision on the merits based on notions of nonreviewability. Quite

to the contrary, the Court resolved the dispute by applying

16

substantive equal protection principles and by concluding that the

disparate treatment occasioned by the statutory arrangement was

17

rational because, as a result of 10 U.S.C. § 6015 (1970), “female

lieutenants will not generally have compiled records of seagoing

18

services comparable to those of male lieutenants.”

19 Owens, 455 F. Supp. 2d at 300. Likewise, in Frontiero v. Richardson, 411 U.S. 677 (1973), “a

20 statutory difference between male and female members of the uniformed services that involved

21 entitlements to housing, medical, and dental benefits was stricken on equal protection grounds. A

22 review of the Court‟s decision shows not the slightest hesitancy about reaching the merits even

23 though military affairs were involved.” Owens, 455 F. Supp. 3d at 301. Other examples include

24 United States v. Virginia, 518 U.S. 515 (1996) (not discussing justiciability but instead focusing

25 on the merits of whether Virginia‟s policy of excluding women from enrolling in its historically

26 single-sex military college violated the Equal Protection Clause), and Rostker v. Goldberg, 453

27 U.S. 57 (1981) (not discussing justiciability but instead focusing on the merits of whether a federal

28 statute authorizing the President to require the registration for the draft of men and not women was

8

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1 constitutional). See also Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997) (addressing merits of

2 plaintiff‟s argument that federal statute addressing homosexuality in the armed forces violated his

3 right to equal protection); Able v. United States, 155 F.3d 628 (2d Cir. 1998) (same); Doe v.

4 Trump, 275 F. Supp. 3d 167 (D.D.C. 2017) (addressing merits of claims brought by transgender

5 service members and aspiring service members that directives issued by President violated their

6 constitutional rights).

7

To be sure, there are extreme circumstances when courts have declined to address the

8 merits of a case, citing nonjusticiability. Most notable is Gilligan v. Morgan, 413 U.S. 1 (1973).

9 There, the plaintiffs were students at Kent State University in Ohio. They filed suit after the

10 governor called upon the National Guard in May 1970 to preserve civil order and protect public

11 property. According to the plaintiffs, the National Guard violated the students‟ rights of speech

12 and assembly and caused injury to numerous students and death to several. The Sixth Circuit

13

held that the [plaintiffs‟] complaint stated a cause of action with

respect to one issue which was remanded to the District Court with

14

directions to resolve the following question:

15

“Was there and is there a pattern of training, weaponry and orders in

the Ohio National Guard which singly or together require or make

16

inevitable the use of fatal force in suppressing civilian disorders

when the total circumstances at the critical time are such that

17

nonlethal force would suffice to restore order and the use of lethal

force is not reasonably necessary?” 18

19 Id. at 4. The Supreme Court held that the plaintiffs‟ claim was not justiciable, particularly because

20 of the plaintiffs‟ request for relief. The Court underscored that

21

this is not a case in which damages are sought for injuries sustained

during the tragic occurrence at Kent State. Nor is it an action

22

seeking a restraining order against some specified and imminently

threatened unlawful action. Rather, it is a broad call on judicial

23

power to assume continuing regulatory jurisdiction over the

activities of the Ohio National Guard. This far-reaching demand for

24

relief presents important questions of justiciability.

25

Respondents continue to seek for the benefit of all Kent State

students a judicial evaluation of the appropriateness of the “training,

26

weaponry and orders” of the Ohio National Guard. They further

demand, and the Court of Appeals‟ remand would require, that the

27

District Court establish standards for the training, kind of weapons

and scope and kind of orders to control the actions of the National

28

Guard. Respondents contend that thereafter the District Court must

9

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assume and exercise a continuing judicial surveillance over the

1

Guard to assure compliance with whatever training and operations

procedures may be approved by that court. Respondents press for a

2

remedial decree of this scope, even assuming that the recently

adopted changes are deemed acceptable after an evidentiary hearing

3

by the court. Continued judicial surveillance to assure compliance

with the changed standards is what respondents demand. 4

5 Id. at 5-6 (emphasis added). The result in Gilligan was hardly surprising because the breadth of

6 plaintiffs‟ request for relief would require a court to interfere with the basic, day-to-day

7 functioning of the Ohio National Guard and on a continuing basis.

8

Bearing in mind the above case law, the Court now turns to the issue of whether the instant

9 case is justiciable. In assessing justiciability of a challenge to a military decision, the Ninth

10 Circuit has expressly embraced the Fifth Circuit‟s approach in Mindes v. Seaman, 453 F.2d 197

11 (5th Cir. 1971). See Wenger v. Monroe, 282 F.3d 1068, 1072-73 (9th Cir. 2002) (finding a case

12 not justiciable where a personnel decision – failure to promote – was challenged).

13

Under the Mindes test as modified by this Circuit, a person

challenging a military decision generally must satisfy two threshold

14

elements before a court can determine whether review of his claims

is appropriate. “An internal military decision is unreviewable unless

15

the plaintiff alleges (a) a violation of [a recognized constitutional

right], a federal statute, or military regulations; and (b) exhaustion of

16

available intraservice remedies.” If the plaintiff alleges both of

these things, a court weighs four factors to determine whether

17

judicial review of his claims is appropriate. These factors include:

18 (1) The nature and strength of the plaintiff‟s claim;
19 (2) The potential injury to the plaintiff if review is refused;
20 (3) The extent of interference with military functions; and
21 (4) The extent to which military discretion or expertise is involved.
22

23

1. Threshold Mindes Elements

24

Under the Mindes test, a court must first consider two threshold elements: whether a

25 federal right is allegedly violated and whether there has been an exhaustion of intraservice

26 remedies.

27

In the instant case, there is no dispute that the first threshold element has been satisfied:

28 SWAN alleges a violation of a recognized constitutional right not to be discriminated against on

10

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1 the basis of gender. However, the Secretary argues that the second threshold element – exhaustion

2 of intraservice remedies – has not been met. See Mot. at 12. The Court does not agree for the

3 following reasons.

4

First, SWAN is an organization, not a service member, and so it has no intraservice

5 remedies available to it to exhaust. Cf. Christoffersen v. Wash. State Air Nat’l Guard, 855 F.2d

6 1437, 1441-42 (9th Cir. 1988) (acknowledging that the absence of an intraservice remedy does not

7 preclude application of the Mindes test, but assuming exhaustion of all available remedies given

8 that the Records Board could not provide effective relief).

9

Second, the purpose underlying the exhaustion requirement has been met in the instant

10 case. The point of exhaustion is to give the military the opportunity to resolve the dispute in the

11 first instance, thus obviating the need for litigation. But the Secretary has already been given that

12 opportunity. This lawsuit began because of the blanket exclusion of women from combat units;

13 the case was then essentially put on hold because of the government‟s decision to rescind that

14 policy; and, although that policy has now been formally rescinded, the policies that have replaced

15 it have still (at least allegedly) resulted in exclusion of women from combat units. The decision of

16 the Army and Marines was the result of a lengthy process and took place while this litigation was

17 pending. The views of Plaintiffs have been known to the Army and the Marines throughout their

18 deliberative processes. Hence, the purpose of exhaustion has been satisfied.

19

Because both Mindes threshold elements have been satisfied, the Court may now consider

20 the four “substantive” Mindes factors. See Wenger, 282 F.3d at 1073.

21

2. First Mindes Factor

22

The first Mindes factor calls upon a court to evaluate the nature and strength of the

23 plaintiff‟s claim. These are two different considerations.

24

With respect to the nature of a plaintiff‟s claim, the Mindes court underscored that

25 constitutional claims are “normally more important than those having only a statutory or

26 regulatory base”; however, even constitutional claims “are themselves unequal in the whole scale

27 of values – compare haircut regulation questions to those arising in court-martial situations which

28 raise issues of personal liberty.” Mindes, 453 F.2d at 199. In the instant case, the Secretary has

11

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1 not addressed the nature of SWAN‟s claim, focusing instead on the strength of the claim only. See

2 Mot. at 12. That is problematic. The nature of the claim asserted by SWAN is important: SWAN

3 is asserting a constitutional claim, not a statutory or regulatory one, and the constitutional claim

4 implicates significant values. At stake is not, e.g., a haircut regulation, but a policy that impedes

5 the ability of women to serve in the military. At issue is an explicit gender-based policy that

6 normally is subject to heightened scrutiny under the Equal Protection Clause of the Fourteenth

7 Amendment and the Fifth Amendment as against the federal government.

8

As for the strength of SWAN‟s claim, the Secretary does not make any argument that the

9 constitutional challenge fails on the merits under heightened scrutiny.4 Rather, the Secretary

10 simply argues that SWAN‟s claim is weak because SWAN “does not show that any service

11 member has been denied a combat billet due to the „Leaders First‟ policy or the policy that govern

12 Marine Corps Recruit Training.” Mot. at 12 (emphasis in original). But this argument

13 mischaracterizes SWAN‟s operative complaint. For example, as reflected in ¶ 27 of the SAC,

14 SWAN has a problem with the Leaders First policy because, with respect to the Army, “in

15 practice, brand new women infantry and armor second lieutenants are being assigned to just two

16 brigades one at Fort Bragg and one at Fort Hood. No other infantry or armor brigade has been

17 opened to women.” SAC ¶ 27. Furthermore, SWAN alleges that there is further injury to service

18 women because “the Army [has] ended up with more women infantry and armor officers than

19 anticipated, so that today, there is a surplus of these new officers at the designated brigades [in

20 Fort Bragg and Fort Hood], also effectively segregating them from the rest of the Army.” SAC ¶

21 27 (emphasis omitted and added). SWAN is also critical of the Marines training policy because it

22 segregates expressly on the basis of sex. See SAC ¶ 35.

23

The first Mindes factor therefore weighs in favor of judicial review.

24

25

26

4 Assessing the strength of Plaintiffs‟ claims at this stage is not to be overly rigorous. In Mindes, the Fifth Circuit commented: “An obviously tenuous claim of any sort must be weighted in favor

27

of declining review.” Mindes, 453 F.2d at 199 (emphasis added). This appears to set a low bar. See Nieszner v. Mark, 684 F.2d 562, 564 (8th Cir. 1982) (indicating that the first Mindes factor

28

should not be understood to be a prejudgment on the merits; focusing on the use of the word “tenuous”).

12

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1

3. Second Mindes Factor

2

The second Mindes factor is the potential injury to the plaintiff if judicial review is refused.

3 As an initial matter, it is not clear whether the Court‟s inquiry here should be limited to injury to

4 SWAN only, or whether it may also consider injury to service women. The Court need not decide

5 that legal issue because the Secretary proceeds with the assumption that the Court should consider

6 injury to service women (in fact, ignores any injury to SWAN itself). See Mot. at 12 (arguing that

7 the first two Mindes factors weigh against SWAN because it “does not show that any service

8 member has been denied a combat billet” due to the challenged policies) (emphasis in original).

9

So framed, the potential injury to service women is significant – e.g., being denied

10 assignment to any brigades outside of Fort Bragg and Fort Hood (for the Army) and being subject

11 to segregation on the basis of sex (both Army and Marines). And even if the Court were confined

12 to consideration of only SWAN‟s injury, that injury is not insignificant. As discussed in Part II.C

13 below (addressing standing), DoD‟s policies appear to have had an economic impact on SWAN,

14 and the Ninth Circuit has recognized that an economic injury is enough to establish an injury for

15 purposes of the second Mindes factor. See Christoffersen, 855 F.2d at 1444 (noting that “[t]he

16 potential injury to [plaintiffs who were not selected for retention in the Air Force National Guard]

17 is primarily economic” – a loss of military and civilian employment and eligibility for civil service

18 retirement benefits; ultimately concluding that the second Mindes factor weighed in plaintiffs‟

19 favor).

20

4. Third and Fourth Mindes Factors

21

“The third and fourth Mindes factors, „the extent of interference with military functions‟

22 and „the extent to which military discretion or expertise is involved,‟ are generally considered

23 together.” Wenger, 282 F.3d at 1075. This makes sense in that the greater the military expertise,

24 the more likely the interference with military functions. Cf. Mindes, 453 F.2d at 201-02 (stating

25 that “[c]ourts should defer to the superior knowledge and experience of professionals in matters

26 such as promotions or orders directly related to specific military functions”). However, to be

27 given weight under Mindes and Wenger, the interference must be significant. As the Mindes court

28 noted, “[i]nterference per se is insufficient since there will always be some interference when

13

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1 review is granted, but if the interference would be such as to seriously impede the military in the

2 performance of vital duties, it militates strongly against relief.” Mindes, 453 F.2d at 201

3 (emphasis added).

4

The classic example of interference is Gilligan where the demand for relief made by the

5 plaintiffs constituted “a broad call on judicial power to assume continuing regulatory jurisdiction

6 over the activities of the Ohio National Guard.” Gilligan, 413 U.S. at 5. In the Ninth Circuit,

7 interference has also been found where discrete, individualized military personnel decisions are at

8 issue. For example, in Gonzalez v. Department of Army, 718 F.2d 926 (9th Cir. 1983), the

9 plaintiff alleged intentional race discrimination in violation of 42 U.S.C. § 1981 based on a failure

10 to promote. The Ninth Circuit held that the claim was not justiciable and, with regard to

11 interference, noted as follows:

12

The interference with the Army if appellant‟s claims were reviewed

would be significant. The officers who participated in reviewing

13

appellant‟s performance would have to be examined to determine

the grounds and motives for their ratings. Other evidence of

14

appellant‟s performance would have to be gathered for the 10-year

period in question. In short, the court would be required to

15

scrutinize numerous personnel decisions by many individuals as

they relate to appellant‟s claim that he was improperly denied

16

promotion. This inquiry would involve the court in a very sensitive

area of military expertise and discretion. 17

18 Id. at 930; see also Wenger, 282 F.3d at 1075-76 (promotion5); Christoffersen, 855 F.2d at 1444

19 (retention); Sebra v. Neville, 801 F.2d 1135, 1142 (9th Cir. 1986) (transfer).

20

21 5 In Wenger, the Ninth Circuit looked to Gonzalez as its guide:

22

Like Gonzalez, Wenger claims that misconduct by the Guard cost

23

him a promotion. To determine whether a flag was appropriately placed on Wenger‟s record, and whether the investigation of the

24

Dining-In incident was conducted properly, a court would have to review all the details of the placement of the flag and the conduct of

25

the investigation. Thus, as in Gonzalez, review in this case would require a court to scrutinize numerous decisions made by various

26

individuals, and would necessarily “involve the court in a very sensitive area of military expertise and discretion.” Accordingly in

27

this case, as in Gonzalez, the third and fourth Mindes factors weigh against reviewability.

28 Wenger, 282 F.3d at 1076. 14

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1

The Secretary tries to categorize the above Ninth Circuit cases and others like them as

2 military “assignment” cases, and argues that “assignment” cases are typically found

3 nonjusticiable. See Mot. at 8-9. But this argument is not convincing because, even though the

4 Ninth Circuit has stated that “federal courts should not review internal military decisions such as

5 duty orders or duty assignments,” Schlanger v. United States, 586 F.2d 667, 671 (9th Cir. 1978),

6 that statement must be taken in context. More specifically, that statement was made in the context

7 of evaluating the second Mindes factor, i.e., the potential injury to the plaintiff if review were

8 refused. The Ninth Circuit indicated that the potential injury would be greater in, e.g., the

9 discharge situation as opposed to the assignment situation. See id. at 672 (stating that the plaintiff

10 “seeks review of a decision of the USAF to remove him from AECP [Airman‟s Education and

11 Commissioning Program] and reassign him elsewhere”; this decision is not like a discharge

12 decision – while plaintiff “may suffer certain collateral consequences from having the removal

13 remain in his USAF record, the military decision to remove him from the AECP does not subject

14 him to consequences as serious” as a discharge).

15

Thus, a proper assessment of the degree of interference threatened by a lawsuit is informed

16 by whether the Court will be required to scrutinize particular personnel decisions (such as an

17 assignment) by many decisionmakers (as in Gonzalez) or called upon to take on a comprehensive,

18 ongoing supervisory role, displacing military management over a broad range of policy decisions

19 (as in Gilligan). The case at bar falls under neither of those extremes.

20

The relief sought here would not require the Court to exercise continuing comprehensive

21 regulatory supervision over a wide range of military decisions. Instead, SWAN is asking that two

22 discrete policies be held unconstitutional and thereby enjoined, and that the Army and Marines

23 conform with the policies and practice of other branches of the military which have drawn no

24 similar gender-based distinctions. Nor do Plaintiffs challenge discrete, individualized personnel

25 decisions based on a multitude of personnel-type judgments of many. Rather, SWAN is

26 contesting two broadly applicable facial policies that have been adopted by the Army and the

27 Marines.

28

The Secretary contends that the latter fact means judicial review of the instant case should

15

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1 involve even more interference. According to the Secretary, “[t]he impact of judicial review on

2 the military if an organization was allowed to challenge 240,000 military assignment decisions

3 dramatically magnifies those concerns” present with only a single service member‟s challenge.

4 Mot. at 12. The Secretary‟s position is not supported by case law.

5

For example, in Dillard v. Brown, 652 F.2d 316 (3d Cir. 1981), the plaintiff was a female

6 service woman who was discharged from the National Guard pursuant to a regulation forbidding

7 the enlistment of single parents with minor, dependent children. See id. at 317. The plaintiff

8 claimed, inter alia, that the regulation discriminated against women on its face and also as applied.

9 See id. at 319. The Third Circuit held that the claim was justiciable, relying in large part on the

10 Supreme Court‟s Gilligan decision.

11

Gilligan does not stand for the proposition that issues concerning the

operation of the National Guard are necessarily committed to the

12

coordinate political branches. The Supreme Court held only that a

federal court could not exercise continuing regulatory jurisdiction

13

over the National Guard. The plaintiffs in Gilligan were not merely

seeking to have the Court hold that certain practices or regulations

14

were unconstitutional. Rather they sought to vest virtual control of

the Ohio National Guard in a federal court. 15

16 Id. at 321. In contrast to Gilligan,

17

[h]ere, . . . Dillard has complained that her constitutional rights have

been violated by a specific military regulation and its application.

18

Her challenge, unlike that of the plaintiffs in Gilligan, does not

require a court to engage in an ongoing supervision of the National

19

Guard. A court by considering Dillard‟s claims is not usurping the

responsibility constitutionally committed to a coordinate branch.

20

Nor is the court here asked to engage in a task for which is has no

competence. Dillard merely seeks constitutional review of a

21

regulation by a federal court, a task which traditionally and

constitutionally has been committed to such a forum. . . .

22

Consequently, in Dillard‟s case there is present neither the level of

intrusion into the responsibilities of the coordinate political branches

23

nor the lack of competence of the judicial branch that was found in

Gilligan.

24

25 Id.

26

Likewise, in Owens, the plaintiffs were female Navy personnel who filed a class action,

27 seeking to remove a statutory bar that prevented them from being assigned to duties aboard Navy

28 vessels. The district court held that the case was justiciable, relying in large part on Gilligan.

16

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United States District Court Northern District of California

1

Contrary to defendants‟ contention, a decision favorable to the

plaintiffs in this case will most assuredly [n]ot have the effect of

2

requiring “continuing judicial surveillance” over discretionary

military activities. Far from doing that, a decision in plaintiffs‟

3

favor will simply lift the bar contained in [the statute] that currently

prevents defense authorities from exercising [t]heir discretion

4

regarding female utilization in the manner [t]hey see fit. Unlike in

Gilligan, a decision here will properly leave to experts the task of

5

making “(t)he complex, subtle and professional decisions as the

composition, training, equipping, and control of a military force.” 6

7 Owens, 455 F. Supp. 2d at 302.

8

Moreover, in Dibble v. Fenimore, 339 F.3d 120 (2d Cir. 2003), the Second Circuit

9 recognized that some courts “have characterized the governing rule [on justiciability] as allowing

10 equitable challenges to personnel decisions only when they constitute facial challenges to the

11 constitutionality of military regulations, and not in cases of discrete individualized actions.” Id. at

12 126. The court observed that “[t]here is a vast difference between judicial review of the

13 constitutionality of a regulation or statute of general applicability and judicial review of a discrete

14 military personnel decision” because, “[i]n the first instance, a legal analysis is required[,] one

15 which courts are uniquely qualified to perform,” while “[t]he second involves a fact-specific

16 inquiry into an area affecting military order and discipline and implicating all the concerns on 17 which Feres and Chappell are premised.” Id. at 127.6

18

As a final point, the Court notes that, even when pressed at the hearing, the Secretary failed

19 to show that there is any special military expertise involved in the instant case or that the Court is

20 being asked to engage in a task for which it has no competence. The military does not have any

21 special expertise on gender integration. Cf. Dunlap v. Tenn., 514 F.2d 130, 133 (6th Cir.) (stating

22 that, “[i]n one sense, all decisions by military personnel are military in nature[,] [b]ut decisions

23 which are made for non-military reasons involving no application of military expertise may well

24 be outside the boundaries of the doctrine of nonreviewability”), rev’d on other grounds, 426 U.S.

25

26 6 See Bowen v. Oistead, 125 F.3d 800, 803 (9th Cir. 1997) (explaining that, in Feres, “the

27

Supreme Court held that members of the armed services could not sue the Government for injuries that „arise out of or are in the course of activity incident to service‟” and that, in Chappell, “[t]he

28

Supreme Court has held that Feres applies not only to tort actions brought under the Federal Tort Claims Act but to Bivens actions as well”).

17

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United States District Court Northern District of California

1 312 (1975). Courts regularly assess claims of disparate treatment under the Equal Protection

2 Clause, and scrutiny of discrimination by the military is not uncommon. Justification for class-

3 based exclusions from the military or portions thereof, despite justification based on, e.g., morale

4 or combat readiness, are not beyond the ability of the courts to adjudicate. See, e.g., Rostker, 453

5 U.S. at 57 (addressing merits of whether a federal statute authorizing the President to require the

6 registration for the draft of men and not women was constitutional); Philips, 106 F.3d at 1420 (9th

7 Cir. 1997) (addressing merits of plaintiff‟s argument that federal statute addressing homosexuality

8 in the armed forces violated his right to equal protection); Doe, 275 F. Supp. 3d at 167 (addressing

9 merits of claims brought by transgender service members and aspiring service members that

10 directives issued by President violated their constitutional rights). Carried to its logical extent,

11 under the government‟s position herein, even race-based exclusions from the military or racial

12 segregation within would be immune from judicial review. See also Philips, 106 F.3d at 1439

13 (Fletcher, J., dissenting) (noting that, “[d]espite the deference due the military, there is no doubt

14 that were the government today to exclude African-Americans from the military, the courts would

15 easily reject the military‟s assertions of „unit cohesion,‟ „morale,‟ and „discipline‟ and strike down

16 the policy as violative of equal protection”). It is too late in the day for any such argument.

17

Because all Mindes considerations weigh in favor of judicial review, the Court denies the

18 Secretary‟s motion to dismiss on nonjusticiability grounds.

19 C. Standing

20

Finally, the Secretary challenges SWAN‟s standing to bring this action. Because the

21 Secretary makes only a facial, and not a factual, challenge to standing, the Court focuses on the

22 allegations made in the SAC. See Phillips v. Apple Inc., No. 15-CV-04879-LHK, 2016 U.S. Dist.

23 LEXIS 53148, at *8 (N.D. Cal. Apr. 19, 2016) (noting that, “„[i]n a facial attack [on standing

24 under Federal Rule of Civil Procedure 12(b)(1)], the challenger asserts that the allegations

25 contained in a complaint are insufficient on their face to invoke federal jurisdiction‟”); cf. Safe Air

26 For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (noting that “[a] Rule 12(b)(1)

27 jurisdictional attack may be facial or factual” – “[i]n a facial attack, the challenger asserts that the

28 allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction”

18

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United States District Court Northern District of California

1 while, “in a factual attack, the challenger disputes the truth of the allegations that, by themselves,

2 would otherwise invoke federal jurisdiction”). SWAN‟s complaint contains the following

3 allegations regarding its standing.

4

13. [SWAN] is a nonpartisan, nonprofit organization that

supports, defends, and empowers servicewomen and women

5

veterans through advocacy initiatives and community programs. Its

mission includes transforming military culture by securing equal

6

opportunity and freedom to serve without discrimination,

harassment, or assault. SWAN also seeks to reform veterans‟

7

services to ensure high quality benefits for women veterans and their

families. 8

14. SWAN‟s mission and goals are frustrated by the DoD‟s

9

combat segregation policies and practices, which limit women‟s

opportunities for advancement in the military, and create significant

10

issues and obstacles for servicewomen that they then raise with, and

seek assistance from, SWAN. Because of the current segregation

11

policy and practice, SWAN has had to divert its resources to address

the inequities, uncertainties and harms to the military caused by the

12

DoD‟s segregation policies and practices. SWAN regularly fields

complaints from junior enlisted women and from women “leaders”

13

in the Army and Army National Guard concerning the effect of

“Leaders First” on their accession and advancement opportunities,

14

and on their relationships with their male colleagues and superior

officers. SWAN also expends resources responding to reports of

15

disadvantages faced by female Marines entering combat MOSs and

the rates of sexual harassment and assault that they experience,

16

stemming in part from the stigma imparted by their segregation from

male colleagues at basic training. 17

15. The DoD‟s decision to rescind its 1994 directive excluding

18

women from assignment to ground combat units has not reduced the

work SWAN must do to combat the ill effects of the DoD‟s ongoing

19

exclusion and segregation of servicewomen. On the contrary,

SWAN must address the serious issues raised by servicewomen

20

regarding the obstacles created by the DoD‟s segregation policies

and practices and must continue to advocate for their elimination. If

21

the DoD ceased its segregation policies and practices, SWAN could

reallocate its resources to advancing its overall mission of promoting

22

and empowering active and retired servicewomen.

23 SAC ¶¶ 13-15.

24

SWAN argues that it has made sufficient allegations to support standing based on the

25 Supreme Court‟s decision Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), and its progeny.

26 In Havens, the plaintiffs claimed that the defendants – a company that owned several apartments

27 and one of its employees – engaged in “racial steering” in violation of the Fair Housing Act. One

28 of the plaintiffs was HOME, a nonprofit corporation whose purpose (as stated in the complaint)

19

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United States District Court Northern District of California

1 was to make equal opportunity in housing a reality in the Richmond, Virginia, area. See id. at 368.

2 HOME‟s “activities included the operation of a housing counseling service, and the investigation

3 and referral of complaints concerning housing discrimination.” Id. HOME alleged injury because

4 (as stated in the complaint) it “„has been frustrated by defendants‟ racial steering practices in its

5 efforts to assist equal access to housing through counseling and other referral services. . . . HOME

6 has had to devote significant resources to identify and counteract the defendant‟s [sic] racially

7 discriminatory steering practices.‟” Id. at 378. The Supreme Court held that,

8

[i]f, as broadly alleged, petitioners‟ steering practices have

perceptibly impaired HOME‟s ability to provide counseling and

9

referral services for low- and moderate-income homeseekers, there

can be no question that the organization has suffered injury in fact.

10

Such concrete and demonstrable injury to the organization‟s

activities – with the consequent drain on the organization‟s

11

resources – constitutes far more than simply a setback to the

organization‟s abstract social interests. 12

13 Id. at 379. The Ninth Circuit has elaborated that “an organization suing on its own behalf can

14 establish an injury when it suffered „both a diversion of its resources and a frustration of its

15 mission.‟” La Asociacion de Trabajadores de Lake v. City of Lake Forest, 624 F.3d 1083, 1088

16 (9th Cir. 2010) (emphasis added).

17

The Ninth Circuit has applied the Havens standard in multiple cases. For example, in

18 National Council of La Raza v. Cegavske, 800 F.3d 1032 (9th Cir. 2015), the plaintiffs were civil

19 rights organizations who sued Nevada state officials for allegedly violating the National Voter

20 Registration Act. One of the organizations was National Council of La Raza (“NCLR”). As

21 described in the complaint, NCLR is the largest national Latino civil rights and advocacy

22 organization in the United States and regularly conducts registration drives in Nevada. According

23 to the complaint, Nevada‟s violation of the voting act caused NCLR “to expend additional

24 resources in performing its voter registration mission: „Due to defendants' ongoing violations of

25 the NVRA, NCLR has expended additional resources, including staff and volunteer time, on

26 efforts to assist individuals with voter registration (including updating prior voter registration)

27 who should have been offered voter registration through Nevada's public assistance offices.‟” Id.

28 at 1036-37. The other plaintiff-organizations made similar allegations in support of organization

20

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United States District Court Northern District of California

1 standing. See id. at 1037 (noting that two NAACP chapters alleged that the defendants‟ violation

2 of the voting act “caused them to expend additional resources in performing their voter registration

3 missions”). In short, “[a]ll three plaintiffs allege[d] that Nevada's failure to comply with Section 7

4 of the NVRA has caused them to expend additional resources, and that „but for‟ the State‟s failure

5 they would have spent these resources to accomplish other aspects of their organizational

6 missions, such as voter education and registering voters not covered by the NVRA.” Id. at 1039.

7 “The complaint . . . clearly alleges that Plaintiffs changed their behavior as a result of Nevada's

8 alleged violation of Section 7. The complaint specifically alleges that Plaintiffs expended

9 additional resources that they would not otherwise have expended, and in ways that they would

10 not have expended them.” Id. at 1040.

11

Another Ninth Circuit case applying Havens is Fair Housing Council of San Fernando

12 Valley v. Roommate.com, LLC, 666 F.3d 1216 (9th Cir. 2012). There, the Fair Housing Councils

13 (“FHCs”) of two cities sued Roommate.com, “alleging that the website‟s questions requiring

14 disclosure of sex, sexual orientation and familial status, and its sorting, steering and matching of

15 users based on those characteristics, violate[d] the Fair Housing Act and the California Fair

16 Employment and Housing Act.” Id. at 1218. The Ninth Circuit rejected Roommate‟s contention

17 that the FHCs lacked standing, explaining as follows.

18

Prior to commencing litigation, the FHCs investigated Roommate‟s

alleged violations and, in response, started new education and

19

outreach campaigns targeted at discriminatory roommate

advertising. The resources spent on those campaigns were not

20

associated with litigation. Because Roommate‟s conduct caused the

FHCs to divert resources independent of litigation costs and

21

frustrated their central mission, we conclude that the FHCs have

organizational standing.

22

23 Id. at 1219.

24

Of course, a setback to the organization abstract social interest without a discussion of

25 resources would not suffice under Havens. See Project Sentinel v. Evergreen Ridge Aparts., 40 F.

26 Supp. 2d 1136, 1139 (N.D. Cal. 1999) (Walker, J.) (holding that plaintiff-organization failed to

27 meet the Havens standard because its complaint “alleges nothing more than a setback to the

28 organization‟s abstract social interest in gaining compliance with fair housing laws” and did not

21

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United States District Court Northern District of California

1 allege, e.g., that “it provides any service or is engaged in any other enterprise independent of this

2 action that might be frustrated by defendants‟ allegedly unlawful conduct”); see also Havens, 455

3 U.S. at 379 (stating that the “concrete and demonstrable injury to the organization‟s activities –

4 with the consequent drain on the organization‟s resources – constitutes far more than simply a

5 setback to the organization‟s abstract social interests”).

6

In the instant case, whether the challenged policies of the DoD constitutes more than a

7 setback to SWAN‟s abstract social interest is not clearly stated. While SWAN – like the La Raza

8 plaintiffs – alleges it has had to divert resources to address the inequities and harms caused by the 9 allegedly unconstitutional DoD policies,7 the allegations are conclusory. SWAN does not provide

10 any specificity in describing (1) from what and (2) to what its resources have been reallocated.

11 For example, on (1) SWAN refers to “advocacy initiatives and community programs,” SAC ¶ 13,

12 but gives no information about what those initiatives and programs are. On (2), SWAN alleges

13 that it “fields complaints” and has responded to reports of disadvantages faced by service women

14 as a result of the policies, but it does not allege, e.g., that it has had to devote more resources to

15 providing, e.g., counseling and assistance in a manner similar to that provided by NCLR in La 16 Raza.8 Indeed, the complaint does not clearly allege whether SWAN typically takes any action or

17 provides services beyond fielding complaints.

18

The Court therefore holds that, based solely on the allegations in the complaint as pled,

19 SWAN has not sufficiently established standing. The motion to dismiss for lack of standing is

20 granted, but SWAN has leave to amend.

21

22

23

24

25

7 The Court disagrees with the Secretary‟s contention that SWAN has no standing because any harm to it is “self-inflicted” (i.e., based solely on its own decision regarding resources allocation).

26

See Mot. at 15-15. The allegations in the complaint fairly indicate that SWAN has had to divert resources because of the DoD’s conduct.

27 8 The Court does not consider the Watts declaration in evaluating standing; given the Secretary‟s

28

facial challenge, the Court looks only to the SAC. Moreover, it is not clear that the Watts declaration is sufficient even if it could be considered.

22

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United States District Court Northern District of California

1

III. CONCLUSION

2

The Secretary‟s motion to dismiss lacks merit to the extent it is based on claims of

3 improper venue and nonjusticiability. The motion, however, is granted as the Court agrees with

4 the Secretary that there are insufficient allegations in the SAC to support standing. SWAN has

5 leave to file an amended complaint within four weeks of the date of this order.

6

This order disposes of Docket No. 102.

7

8

IT IS SO ORDERED.

9

10 Dated: May 1, 2018

11

12

______________________________________

13

EDWARD M. CHEN United States District Judge

14

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 Case 3:12-cv-06005-EMC Document 122 Filed 06/28/18 Page 1 of 23

1 ROSEMARIE T. RING (SBN 220769)
rose.ring@mto.com 2 MUNGER, TOLLES & OLSON LLP
560 Mission Street 3 Twenty-Seventh Floor
San Francisco, California 94105-2907 4 Telephone: (415) 512-4000
Facsimile: (415) 512-4077 5
CHRISTINE P. SUN (SBN 218701) 6 csun@aclunc.org
ELIZABETH O. GILL (SBN 218311) 7 egill@aclunc.org
SHILPI AGARWAL (SBN 270749) 8 sagarwal@aclunc.org
AMERICAN CIVIL LIBERTIES UNION 9 FOUNDATION OF NORTHERN CALIFORNIA, INC.
39 Drumm Street 10 San Francisco, CA 94111
Telephone: (415) 621-2493 11 Facsimile: (415) 255-8437

12 Attorneys for Plaintiff

13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

17 SERVICE WOMEN’S ACTION

CASE NO. 12-CV-06005 EMC

NETWORK,

18 Plaintiff,
19 v.

THIRD AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

20

JAMES N. MATTIS, Secretary of Defense,

21

Defendant.

22

23

24

25

26

27

28
THIRD AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. C 12-06005 EMC

Case 3:12-cv-06005-EMC Document 122 Filed 06/28/18 Page 2 of 23

1

Plaintiff Service Women’s Action Network alleges as follows:

2

INTRODUCTION

3

1. This case challenges the ongoing segregation and unequal treatment of

4 servicewomen in the United States military. The original complaint (“Complaint”) in this

5 case was filed in November 2012. The Complaint challenged as unconstitutional the

6 policy instituted in 1994 by the Department of Defense (“DoD”) through a directive that

7 excluded the original Plaintiffs, and all servicewomen, from assignment to units whose

8 primary mission was to engage in direct ground combat (“1994 directive”). Under the

9 1994 directive, women were barred from more than 238,000 positions across the Armed

10 Forces, including all infantry positions, and from certain military occupational specialties

11 (also known as “MOSs”) and training schools. No United States statute required this

12 categorical exclusion of women. Instead, the DoD had itself chosen to close all ground

13 combat positions to servicewomen solely on the basis of their gender.

14

2. Women make up an increasingly significant percentage of the Armed

15 Forces, with more than 280,000 having served in Iraq and Afghanistan alone. The

16 ongoing military activities in Iraq and Afghanistan, among other turbulent locations, lack

17 any clear boundaries or front lines, and the demands of these engagements have required

18 participation from troops across the Armed Forces. In addition, the unique circumstances

19 and demands of fighting around the globe have led to a greater need for women on the

20 ground. As a result, servicewomen across the Armed Forces, including the original

21 Plaintiffs, two of whom were wounded in combat and are recipients of the Purple Heart

22 Award, have risked their lives serving in combat in our nation’s active theatres of war.

23

3. In January 2013, Secretary of Defense Leon Panetta announced that the

24 1994 policy that had barred all women from applying for or serving in hundreds of

25 thousands of combat positions in the Armed Forces was rescinded. Despite Secretary

26 Panetta’s statement that the rescission was “effective immediately,” however, the DoD

27 continued for several years to enforce its policy and practice of excluding women from

28 applying for or serving in hundreds of thousands of combat positions, solely because they

THIRD AMENDED COMPLAINT FOR

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DECLARATORY AND INJUNCTIVE RELIEF,

CASE NO. C 12-06005 EMC

Case 3:12-cv-06005-EMC Document 122 Filed 06/28/18 Page 3 of 23

1 were women. The DoD’s continued exclusion of all women from combat units,

2 specialties, and schools, solely because of their gender and regardless of their abilities,

3 was unconstitutional.

4

4. On December 3, 2015, the DoD finally announced its “determin[ation] that

5 no exceptions are warranted to the full implementation of the rescission of the ‘1994

6 Direct Combat Definition and Assignment Rule.’” See Dec. 3, 2015 Memorandum from

7 the Secretary of Defense to Service Secretaries, Acting Under Secretary of Defense for

8 Personnel and Readiness, Service Chiefs, and the Commander of the U.S. Special

9 Operations Command (“USSOCOM”), available at http://www.defense.gov/Portals/1/

10 Documents/pubs/OSD014303-15.pdf. The DoD also announced that “[a]nyone who can

11 meet operationally relevant and gender neutral standards, regardless of gender, should

12 have the opportunity to serve in any position.” Id. (emphasis added). The DoD also

13 announced, in a document filed with this Court, that women would be assigned to

14 formerly-closed positions using “the same procedures that are currently used” for the

15 accession and assignment of male soldiers. Joint CMC Statement, Nov. 13, 2015

16 (Dkt. 66) at 7:8-15.

17

5. A few months later, the DoD abruptly changed its announced policy and

18 stated that the implementation plans submitted by the Services and USSOCOM would in

19 fact treat women differently than men, solely because of their gender. See Joint Case

20 Management Statement, April 28, 2016 (Dkt. 75) at 9-15, 18-19. In particular, the DoD

21 announced that the Army and Marines had adopted a “Leaders First” policy that required

22 junior enlisted women to wait to enter combat companies until two or more “women

23 leaders” joined those companies. Id.

24

6. As explained in this Third Amended Complaint, “Leaders First” is an

25 unconstitutional gender-based assignment policy that: (1) deprives junior enlisted

26 servicewomen access to the full range of positions available to their male colleagues,

27 because they are only able to be assigned to combat units in which women “leaders” are

28 installed; (2) deprives women “leaders” access to the full range of positions in combat

THIRD AMENDED COMPLAINT FOR

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DECLARATORY AND INJUNCTIVE RELIEF,

CASE NO. C 12-06005 EMC

Case 3:12-cv-06005-EMC Document 122 Filed 06/28/18 Page 4 of 23

1 units because they are assigned based on the needs of the “Leaders First” policy;

2 (3) communicates to male servicemembers and leaders in combat units that they have

3 little or no responsibility for the development and advancement of servicewomen;

4 (4) places unusual and unnecessary burdens on junior enlisted women, who are often

5 required to ignore chain of command norms in order to seek counsel from their designated

6 female “leaders”; (5) places unusual and unnecessary burdens on women “leaders,” who

7 are required to divert attention from their own professional development in their new roles

8 in combat units to mentor and supervise junior enlisted women; and (6) causes resentment

9 among male soldiers in combat units.

10

7. In addition, despite the requirement of “full integration” of women in

11 combat units—and therefore throughout the U.S. military—and despite the assurances

12 provided to this Court in 2015, the Marine Corps chose to continue to segregate recruits

13 for basic training into same-gender platoons. The Marine Corps is the only service branch

14 that separates training along gender lines.

15

8. The Marines’ policy of segregated basic training for women is an

16 unconstitutional gender-based policy because it: (1) is premised on stereotypes about

17 women’s aptitude for military service; (2) deprives women of equal opportunity for

18 training and mentorship, thus impairing their ability to successfully meet gender-neutral

19 physical standards for their contracted MOSs and thereby to continue their training in

20 those specialties; and (3) teaches male recruits and leaders to regard servicewomen as in

21 need of protection, incapable of competing on equal footing with men, and otherwise as

22 second-class members of the Marine Corps.

23

9. The U.S. Supreme Court has held that governmentally mandated

24 discrimination based on sex is unconstitutional unless it is supported by an “exceedingly

25 persuasive” justification that is “substantially related” to “important governmental

26 objectives.” United States v. Virginia, 518 U.S. 515, 533 (1996). Any such justification

27 must be genuine, not hypothetical, and cannot rely on “overbroad generalizations about

28 the different talents, capacities, or preferences of males and females.” Id. Defendant’s

THIRD AMENDED COMPLAINT FOR

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DECLARATORY AND INJUNCTIVE RELIEF,

CASE NO. C 12-06005 EMC

Case 3:12-cv-06005-EMC Document 122 Filed 06/28/18 Page 5 of 23

1 ongoing policies and practices of categorically segregating, isolating and marginalizing

2 women, regardless of their individual qualifications and capacities, do not and cannot

3 meet this exacting standard.

4

10. Defendant’s segregation policies and practices for servicewomen represent

5 the last vestiges of federal de jure discrimination against women. Nearly a century after

6 women first earned the right of suffrage, the DoD’s segregation policies and practices still

7 deny women a core component of full citizenship: serving on equal footing in defense of

8 our nation. Plaintiff therefore respectfully asks this Court to: (1) find the “Leaders First”

9 policy to be unconstitutional and declare that the DoD’s current policy of segregating

10 women to only those combat units in which women “leaders” already are installed, while

11 excluding them from applying for and serving in other units and positions in the Armed

12 Forces, solely because they are women, violates their rights to equal protection under the

13 Due Process Clause of the Fifth Amendment; (2) find the current policy of sex-segregated

14 basic training in the U.S. Marine Corps to violate women’s rights to equal protection

15 under the Due Process Clause of the Fifth Amendment; and (3) require the DoD to allow

16 women to apply for all combat-related positions and schools that men are allowed to apply

17 for, using the same procedures that are currently used for the accession and assignment of

18 male soldiers;.

19

JURISDICTION

20

11. This Court has original jurisdiction under 28 U.S.C. § 1331 because

21 Plaintiff’s claims arise from and under the U.S. Constitution, as set forth herein.

22

INTRADISTRICT ASSIGNMENT

23

12. The challenged policies and practices are enforced, and their impact is felt,

24 throughout the Northern District of California, including in Contra Costa County and

25 Monterey County, where the DoD maintains several bases, such as Camp Parks in Dublin

26 and Fort Hunter Liggett in Monterey County, and at Camp Roberts in Monterey County,

27 one of the state’s three main training bases for California National Guard troops.

28

THIRD AMENDED COMPLAINT FOR

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DECLARATORY AND INJUNCTIVE RELIEF,

CASE NO. C 12-06005 EMC

Case 3:12-cv-06005-EMC Document 122 Filed 06/28/18 Page 6 of 23

1

PARTIES

2

13. Plaintiff Service Women’s Action Network (“SWAN”) is a nonpartisan,

3 nonprofit membership organization founded in 2007 to support, connect and advocate for

4 all military women, including current service members, but also veterans and future

5 enlisted women.

6

14. SWAN’s mission and goals are frustrated by the DoD’s gender segregation

7 policies and practices, which limit women’s opportunities for advancement in the military,

8 and create significant issues and obstacles for servicewomen. SWAN seeks to empower

9 and promote servicewomen, but the inequities, uncertainties, and harms to servicewomen

10 caused by the DoD’s gender segregation policies and practices have forced SWAN to

11 divert its resources from direct advocacy promoting servicewomen and their needs during

12 and after active service to engagement and advocacy regarding the gender segregation

13 policies and practices that are the subject of this suit. SWAN also has members who are

14 being harmed by “Leaders First” and the Marine Corps’ segregated training.

15

15. As the leading national organization dedicated to service women, SWAN is

16 a unique community enabling service women to connect and unite with their peers and

17 create opportunities to improve their lives together. The SWAN community offers

18 valuable programs that enable its members to get involved and work side-by-side to

19 positively influence the issues that are important to them. Currently, SWAN’s main areas

20 of focus are: (1) unifying servicewomen as a nationwide community, through in-person

21 events and online engagement; (2) connecting servicewomen with the resources they and

22 their families need, primarily through building partnerships with other organizations; and

23 (3) amplifying the voices of servicewomen by advocating for them on a wide range of

24 issues, by participating in coalitions, conducting a national survey on the needs of women

25 in the military, and educating members of Congress as to those needs.

26

16. As part of its efforts to achieve these goals, some of SWAN’s most recent

27 efforts include the following:

28

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1

(a) SWAN fields on average ten calls, Facebook posts, and emails each month

from women in the military who are actively seeking assistance with legal services, a discharge

2 upgrade, to connect with women-friendly representatives at veteran organizations, or to reach out

to other women veterans in their communities. If an intern is not available, SWAN’s Director of

3 Operations is responsible for speaking with the client or member, assessing her needs, researching

remedies and referrals, calling the referral to make the connection, or connecting the member

4 with another staff member with relevant expertise.

5

(b) SWAN has been working to establish partnerships and, eventually, build a

coalition of organizations that work with women veterans in order to better address the particular

6 difficulties these women experience in transitioning to civilian life, and connect women veterans

more effectively to resources in their local communities.

7

(c) For the last one and a half years, SWAN has been actively researching and

8 maintaining a nationwide database of organizations that provide gender-specific services to

women in the military (active duty and veteran). These data will populate an on-line Resource

9 Portal that SWAN started developing in mid-2017.

10

(d) SWAN facilitates informing members of Congress about issues faced by

women in the military by organizing educational Hill visits by its members.

11

(e) SWAN is currently nearing the end of the first year of a three-year strategic

12 plan. That plan, the first of its kind for SWAN, was adopted in mid-2017 and identifies fourteen

objectives to be achieved by 2020. Among the objectives in this plan are to explore the feasibility

13 of establishing a 501(c)(4) arm, increase and diversify funding sources, to create an online

Resource Portal, to develop strategic partnerships with other organizations that can provide

14 resources to servicewomen, and to develop a prioritized engagement plan that sets forth how

SWAN will educate and mobilize key stakeholders and members to support professional growth.

15

16

17. SWAN is a small organization comprised of three full-time staff members,

17 two part-time consultants, and approximately six unpaid staff members who assist with

18 SWAN’s mission in various capacities.

19

18. The DoD’s decision to rescind its 1994 directive excluding women from

20 assignment to ground combat units has not reduced the work SWAN must do to combat

21 the ill effects of the DoD’s ongoing exclusion and segregation of servicewomen. On the

22 contrary, SWAN must address the serious issues raised by servicewomen regarding the

23 obstacles created by the DoD’s gender segregation policies and practices and must

24 continue to advocate for their elimination. If the DoD ceased its gender segregation

25 policies and practices, SWAN could reallocate its resources to advancing its overall

26 mission of empowering and promoting active and retired servicewomen, and to the

27 number of other goals and issues it has identified in its strategic plan

28

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1

19. Specifically, because of the policies and practices that are the subject of this

2 suit, SWAN has had to redirect its limited resources and limited staff hours to answering

3 questions from women who seek to enter combat roles, who are entering these roles under

4 the “Leaders First” policy, or who are experiencing or who have experienced the

5 segregated Marine Corps training. These women often voice concerns about limitations

6 on their career advancement and career opportunities that are the direct result of the

7 “Leaders First” policy or the Marine Corps segregated training and the barriers they create

8 for women in the military. In addition, many of these women have concerns about or

9 have experienced harassment from their male counterparts because of the continuing

10 differential treatment. Each one of these inquiries and concerns has the potential to

11 require and has in fact required several hours of limited staff hours to fully address. Were

12 it not for the policies and practices that are the subject of this suit, those hours would be

13 spent addressing any one of the initiatives to which SWAN is committed in its efforts to

14 support women in the military.

15

20. In early 2018, in direct response to concerns raised through SWAN’s

16 Facebook page, SWAN staff held (and sponsored) a one-day “Trailblazers Workshop” in

17 Fort Hood, Texas in order to support the first class of recruits trained for Army infantry

18 roles at Fort Hood. One of the primary purposes of this workshop was to support and

19 connect these infantry women in their day-to-day struggles, and to brainstorm how to deal

20 with the ramifications of the “Leaders First” policy and the continuing barriers and

21 stigmatization it creates. SWAN is scheduled to hold a second, similar workshop at Fort

22 Bragg, North Carolina on July 14, 2018. Were it not for “Leaders First,” SWAN would

23 have spent those resources on one or more of the objectives set forth in its strategic plan.

24

21. SWAN believes that its limited staff has expended approximately 15% of

25 their total working hours addressing concerns about the policies and practices that are the

26 subject of this suit. This includes time spent responding to direct communications from

27 its members, reaching out to Congress and other policymakers to advocate against these

28 policies and practices, or connecting servicewomen to resources or networks that they

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1 need as they attempt to navigate military careers under these policies and practices. Were

2 it not for the policies and practices challenged in this suit, these hours and resources

3 would be spent on the objectives set forth in SWAN’s strategic plan.

4

22. SWAN is a membership organization. Its membership is comprised of the

5 servicewomen with whom it connects and communicates via Facebook activity, phone

6 calls, email, or through its monthly e-newsletter. SWAN’s overall goals, efforts, and its

7 strategic plan are informed by, and the direct result of, the information it gathers from its

8 communication with its members. Since 2016, SWAN has conducted an annual nation-

9 wide survey of its members in order to understand what issues and challenges are of most

10 concern to them. In addition, in 2016 and 2017, SWAN held membership summits, where

11 it conducted focus groups to better understand the nature of these challenges. In 2016,

12 about 50 servicewomen attended the summit, and in 2017, about 60 attended the summit.

13 Following both summits, SWAN prepared “Summit Reports,” which set forth the main

14 priorities and areas of need among SWAN’s membership. SWAN then integrates the

15 needs of its membership as reflected in the reports into its strategic planning. For

16 example, the Resource Portal described above was created in response to a call for a

17 resource portal as identified in the 2016 Annual Summit Report.

18

23. SWAN’s servicewomen members have been directly impacted by the

19 DoD’s segregation policies and practices. For example, with respect to “Leaders First,”

20 SWAN has a member who is an Infantry Platoon Leader in the Army National Guard.

21 Because of the “Leaders First” policy, this member was treated differently from her male

22 counterparts by being denied the ability to take inactive guard status for six months at the

23 beginning of her service while she completed the civilian training required for her job as a

24 Denver Police Officer. This in turn led to her not being able to participate fully in the

25 training of her National Guard cohort, which caused her to be perceived as getting

26 different treatment from her male counterparts and ultimately ranked last as a Platoon

27 Leader in the cohort.

28

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1

24. SWAN also has servicewomen members in the Marine Corps who continue

2 to suffer harassment and stigmatization from their male counterparts based on the

3 segregated training, which perpetuates a culture that differentiates and excludes women.

4 As one SWAN member explains: “The purpose of boot camp is to break down recruits by

5 stripping them of their individuality, to form a team, to listen to superiors and act on their

6 command without questions, and to ‘make Marines.’ The male experience is different in

7 that misogyny, sexism, gender bias and the general hate that women have infiltrated their

8 boys’ club are taught during segregated boot camp and reinforced in male-only units.”

9

25. Defendant James N. Mattis is the Secretary of the Department of Defense.

10 He is responsible for the administration and enforcement of the challenged segregation

11 policies and practices and is named in his official capacity only.

12

BACKGROUND

13

26. For much of our nation’s history, women’s participation in the Armed

14 Forces has been severely limited by law, mirroring the many laws at every level of

15 government that excluded women and limited their opportunities for employment and

16 participation in civic life. Despite these legal restrictions, women have always served in

17 the military in defense of this country. In the Revolutionary and Civil Wars, women

18 served as nurses, spies, and cooks, and over 200 fought, disguising themselves as men.

19 Approximately 34,000 women served in uniform in World War I, mostly as nurses. In

20 World War II, that number increased tenfold to 400,000 women serving in uniform,

21 primarily in separate women’s auxiliaries and other services.

22

27. Over time, Congress removed statutory restrictions on women’s

23 participation in the Armed Forces and, by the early 1990s, no statute categorically

24 prohibited women from serving in any military position, including combat positions.

25

28. Nevertheless, the DoD adopted a policy and issued a directive in 1994 that

26 categorically excluded women from most combat positions, the majority of which were in

27 the Army and Marine Corps.

28

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1

29. In January 2013, Secretary of Defense Leon Panetta announced that the

2 1994 policy that had barred all women from applying for or serving in hundreds of

3 thousands of combat units and combat positions in the Armed Forces was rescinded.

4 Secretary Panetta also announced that full implementation of his directive “must be

5 completed no later than January 1, 2016.”

6 http://www.defense.gov/news/WISRJointMemo.pdf.

7

30. The DoD subsequently provided several assurances to this Court regarding

8 the timing of “full implementation” of the January 2013 rescission of the 1994 policy. For

9 example, in February 2014, the DoD told the Court that Plaintiffs’ concerns that many

10 combat positions would be closed for at least several more years were “baseless.”

11 Defendant’s Reply Mem. in Support of His Motion for Protective Order, Feb. 11, 2014

12 (Dkt. 28), at 5 n.4. Later that year, the Court asked counsel for the DoD “whether the

13 Government does have a position on what the January 1st, 2016 date means. . . . [W]hat

14 does it mean?” Counsel assured the Court that “it means what the Secretary of Defense

15 says, that the integration of women into newly opened positions must be completed no

16 later than January 1, 2016.” Tr. of Proceedings, Nov. 13, 2014, at 8. The Court then

17 stated that it had stayed the matter “with the understanding that the implementation of the

18 rescission of the DCGADR” would be “completed by 1/1/16 (not simply that notice to

19 Congress be given by that date).” Order, Nov. 13, 2014 (Dkt. 39), at 1.

20

31. The DoD’s assurances were unreliable. By 2015, the DoD’s new position

21 was that the integration of women into newly opened positions need not, and would not,

22 be “completed” by January 1, 2016. The DoD’s position was that all that needed to

23 happen by January 1, 2016 was a notification to Congress of the particular positions that

24 would or would not be opened to women. Joint CMC Statement, April 14, 2015

25 (Dkt. 47), at 6, 10-13. As of the date of the filing of this Third Amended Complaint, the

26 integration of women into combat positions still has not been completed.

27

32. The DoD provided the Court and Plaintiff with additional assurances at case

28 management conferences in 2015 that also turned out to be unreliable. As described in the

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1 Minute Order issued by the Court after the April 23, 2015 case management conference

2 (“CMC”), the DoD had assured the Court and Plaintiff at the CMC “that as to open

3 positions, female applicants may apply shortly after expiration of the congressional notice

4 period” and “[n]o other barriers are expected.” Civil Minutes, April 23, 2015 CMC

5 (Dkt. 50), at 1. In the fall of 2015, the DoD further assured the Court and Plaintiff that the

6 services “will follow” the same “normal” and “established” procedures for the accession

7 and assignment of women soldiers that the services used for men. Tr. of Proceedings,

8 April 23, 2015, at 5:6-16. See also Joint CMC Statement, Nov. 13, 2015 (Dkt 66), at 7:8-

9 15 (explaining that women would enter formerly-closed positions under “the same

10 procedures that are currently used” for accession and assignment of male soldiers).

11

33. The DoD subsequently reversed its position and announced that the Army

12 and Marines would implement new accession and assignment policies that would be

13 applied only to women and that required that junior enlisted women could only serve in

14 company-level combat units that already had two or more “women leaders” serving in

15 them. See Joint Case Management Statement, April 28, 2016 (Dkt. No. 75) at 9-15, 18-

16 19. The Marines also announced that servicewomen would continue to be segregated

17 from male soldiers during much of their basic training. These policies are at issue in this

18 Third Amended Complaint.

19

THE DOD’S CURRENT SEGREGATION POLICIES AND PRACTICES

20

ARE NOT JUSTIFIED BY ANY IMPORTANT GOVERNMENTAL OBJECTIVE AND CAUSE HARM TO SERVICEWOMEN AND

21

SWAN IN SIGNIFICANT WAYS

22

34. The “Leaders First” policies adopted by the Army and Marine Corps

23 preclude the assignment of women soldiers and Marines to a company-level unit until two

24 or more women “leaders” are assigned to that unit. Although the Armed Services have

25 asserted (without explanation) that the “Leaders First” policy furthers the goal of gender

26 integration, the policy is, in fact, acting as a barrier to servicewomen who want to enter

27 combat positions and is also causing resentment among male soldiers.

28

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1

35. There are many problems with the “Leaders First” policy and its

2 implementation, both practical and cultural. For instance, the “Leaders First” policy in the

3 Army has meant that, in practice, brand new junior enlisted women who graduate from

4 relevant combat training are being assigned to just a few brigades at a few bases. This by

5 definition limits the units and positions that these servicewomen have access to, as

6 opposed to their male counterparts. Women “leaders” are also being assigned solely to

7 these few brigades, with the result that they too are limited in the units and positions they

8 have access to, as opposed to their male counterparts. Indeed, according to a document

9 submitted by the Army to the quarterly Defense Advisory Committee on Women in the

10 Services (“DACOWITS”) meeting in September 2017, Army leadership referred to the

11 first two of these brigades open to women as “Amazon units” by Army leadership. The

12 Army concedes that having “Amazon units” is problematic.

13

36. Because the policy is having the effect of forcing women “leaders” and

14 junior enlisted women into a limited number of units and positions, the policy and its

15 implementation also limits the mobility of these women across units and positions. And

16 the policy and its implementation has resulted in resentment among servicemen to these

17 servicewomen on a number of levels, as women are perceived, correctly, as being treated

18 differently from their male counterparts.

19

37. In the National Guard, the problem is even more severe. Since the combat

20 exclusion policy was eliminated in 2013, National Guard units in only two states

21 (Colorado and New Hampshire) have met the “Leaders First” requirement. That means

22 that in the other 48 states, women still cannot enlist in infantry or armor occupations or be

23 assigned to ground combat units at the entry level in the National Guard, purely because

24 of their gender, more than five years after the so-called “immediate” rescission of the

25 1994 combat exclusion policy. The impact on women living in California who are

26 blocked by the Leaders First policy from joining a combat unit through the Army National

27 Guard is severe. Lt. Col. Forest Horan, the Commander of the Recruiting and Retention

28 Battalion of the California Army National Guard, stated in May 2017 that “[w]e have

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1 applications from hundreds of [lower enlisted] females that I believe would want to join

2 the infantry, but currently can’t” because of the Leaders First policy since May 2017.

3 Roudebush, “California Army National Guard Soldier ‘Queen of Battle’ Paves The Way,”

4 May 19, 2017, available at https://www.army.mil/article/188040/california_army_

5 national_guard_soldier_queen_of_battle_paves_the_way. Because women have

6 continued since May 2017 to be blocked in California by the Leaders First policy, the

7 number that Lt. Col. Horan used in May 2017 has likely grown much larger.

8

38. SWAN is informed and believes and on that basis alleges that the Army

9 National Guard has requested that it be exempted from the Leaders First policy, but the

10 Department of Defense rejected that request.

11

39. SWAN is informed and believes and on that basis alleges that there are at

12 least eight National Guard recruiting stations located in the Northern District: San

13 Francisco (San Francisco County); Concord (Contra Costa County); Hayward (Alameda

14 County); Mountain View (Santa Clara County); Richmond (Contra Costa County); San

15 Jose (Santa Clara County); Santa Rosa (Sonoma County); and Seaside (Monterey

16 County).

17

40. The DoD’s Leaders First policy is also harmful because it creates the false

18 impression that women are not capable of performing in positions viewed as central to the

19 core mission of the Armed Forces. The effect is to relegate women, literally and

20 figuratively, to a “supporting role” in our Armed Forces based on stereotypes about

21 women and assumptions about battlefield conditions that do not reflect the reality that

22 women are already serving in combat situations, and doing so with distinction. Moreover,

23 the policy creates separate classes of military personnel, which fosters an environment in

24 which sexual harassment and sexual assault are more likely to occur.

25

41. The “Leaders First” policy is also likely to result in hardening anti-women

26 feelings among male soldiers in those combat brigades that have no women in them. In

27 the first years of women’s integration at the military service academies, some academies

28 pursued a segregation approach and assigned women cadets to just a handful of

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1 companies. The policy was quickly abandoned because men from companies that had no

2 women were found to be far less accepting of their female classmates than those where

3 women were assigned. Judith Hicks Stiehm, Bring Me Men & Women: Mandated

4 Change at the U.S. Air Force Academy (Berkeley: University of California Press, 1981).

5

42. In addition, the “Leaders First” policy rests on the notion that women cannot

6 become successful soldiers without having women coaches or servicemembers at their

7 side. This flies in the face of the experience of many servicewomen who successfully

8 served in Iraq or Afghanistan without women mentors or supervisors. It is, moreover,

9 absurd to assume that male “leaders” need women by their sides to coach them and advise

10 them on how to lead women soldiers and Marines. This policy has never been applied to

11 any other occupational specialty including Field Artillery, a ground combat MOS.

12

43. The “Leaders First” policy also harms women soldiers because they have a

13 lessened opportunity (as compared to men) to develop a strong mentoring relationship

14 with senior men who are both influential in the advancement process and a source of

15 cultural guidance and battlefield wisdom.

16

44. Finally, the “Leaders First” policy that the Army and Marine Corps utilize

17 places the burden of successful integration on women. It is unreasonable to expect that

18 women “leaders” should—at the same time that they are themselves being integrated into

19 a combat unit—be responsible for the coaching and development of women soldiers or for

20 advising their own male leaders. In fact, SWAN has been contacted by a number of

21 women infantry and armor officers and enlisted women seeking advice and assistance on

22 how to navigate this transition.

23

45. The Marines’ policy of segregating women from men during basic training

24 also causes harm to servicewomen and to SWAN. The Marines’ policy is premised on the

25 twin beliefs that women are unable to compete with male recruits and that training

26 separately ultimately helps the “weaker sex” succeed. As Brig. Gen. Austin Renforth,

27 commanding officer at Parris Island, told a reporter, at Marine boot camp, “There’s a lot

28 of tears, there’s a lot of struggling. . . . I don’t necessarily want the men to see those

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1 women; it can have a reverse effect if you see them too early.” Seck, “Marine Boot Camp

2 Now As Integrated As It Should Get,” https://www.military.com/daily-

3 news/2017/06/06/marine-boot-camp-now-integrated-should-get-commander-says.html.

4

46. Segregated training has not, however, been shown to prepare women for

5 success in combat MOSs. According to one recent press report, in both FY16 and FY17,

6 at the completion of boot camp, only 25 percent of women contracted for combat arms

7 classifications passed the tests necessary to advance to the next MOS-specific training

8 program, resulting in their being reassigned to non-combat MOSs; in contrast, male

9 Marines’ overall pass rate was 96 percent. Jeff Schogol, “At Boot Camp, 3 Out of 4

10 Women Fail to Meet Combat Standards,” Marine Corps Times (Aug. 11, 2017), available

11 at https://www.marinecorpstimes.com/news/your-marine-corps/2017/08/11/at-boot-camp-

12 3-out-of-4-women-fail-to-meet-combat-standards/. In contrast, 56 percent of female

13 recruits graduated in May 2017 from the Army’s first integrated infantry basic training.

14 See Meghann Myers, “18 Women Graduate from the Army’s First Gender-Integrated

15 Infantry Basic Training,” Army Times (May 19, 2017), available at

16 https://www.armytimes.com/news/your-army/2017/05/19/18-women-graduate-from-the-

17 army-s-first-gender-integrated-infantry-basic-training/. Moreover, female Marines who,

18 after completing boot camp, train alongside their male peers at their MOS-specific combat

19 arms school, graduated in FY17 at a rate of 90 percent (as compared with 99 percent of

20 men), and in FY16 at a rate of 86 percent (as compared with 99 percent of men). See

21 Schogol, “At Boot Camp, 3 Out of 4 Women Fail to Meet Combat Standards,”

22 https://www.marinecorpstimes.com/news/your-marine-corps/2017/08/11/at-boot-camp-3-

23 out-of-4-women-fail-to-meet-combat-standards/.

24

47. Plaintiff is informed and believes and on that basis alleges that the DoD’s

25 segregation policies are at least in part the result of animus towards servicewomen on the

26 part of the DoD and the Administration. Defendant Mattis, President Trump, and the

27 President’s close advisors have expressed extreme hostility towards Secretary Panetta’s

28 January 2013 announcement that women would be allowed to serve in some or all combat

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1 units. For example, a few months after Secretary Panetta’s announcement, Mr. Trump

2 responded on Twitter to a Pentagon report on sexual assault in the military by stating that

3 “[t]he Generals and top military brass never wanted a mixer but were forced to do it by

4 very dumb politicians who wanted to be politically C?” The Huffington Post, “Donald

5 Trump’s Awful Tweet About Sexual Assault in the Military,” available at

6 http://www.huffingtonpost.com/2013/05/08/donald-trump-tweet-sexual-assault-

7 military_n_32397891.html.

8

48. More recently, in October 2016, Mr. Trump proclaimed that “[w]e have a

9 politically correct military, and it’s getting more and more politically correct every day.”

10 Paul Szoldra, “Trump Could Kick Women Out of Military Combat Jobs, Reversing a

11 Historic 2013 Policy Change,” Business Insider (Nov. 15, 2016), available at

12 http://www.businessinsider.com/trump-women-combat-jobs-2016-11.

13

49. In 2015, Defendant Mattis similarly demonstrated his animus towards

14 women soldiers when he proclaimed that women should not be allowed to serve in combat

15 units because if they did serve, America’s enemies would no longer fear “America’s

16 awesome determination to defend herself.” PBS News Hour (Dec. 9, 2016), available at

17 http://www.pbs.org/newshour/updates/trumps-defense-secretary-push-women-back-

18 combat/.

19

50. Defendant Mattis also suggested in his 2015 speech that if women were

20 allowed to serve in combat units, those units’ effectiveness would be compromised by

21 “eros.” Id. For support, Mattis cited a story from the Bible about King David: “If you go

22 back to the Bible, King David sends one of his officers off to fight so he could go to bed

23 with his wife. I mean, it’s right in the Bible. We’ve had numerous cases that we put

24 healthy young men and women together, and we expect them to act like little saints.” Id.

25

51. In the same speech, Defendant Mattis stated that “it would only be someone

26 who never crossed the line of departure into close encounters fighting that would ever

27 even promote such an idea.” Richard Sisk, “Mattis Pick Could See Senate Clash On

28 Women In Combat, PTSD,” Military.com (Dec. 1, 2016), available at

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1 http://www.military.com/daily-news/2016/12/01/mattis-pick-could-see-senate-clash-on-

2 women-in-combat-ptsd.html.

3

52. In July 2017, Mr. Trump appointed Marine General John Kelly as his Chief

4 of Staff. Gen. Kelly, at a Pentagon press briefing in 2016, had stated that “his greatest

5 fear” was that having women in combat units would result in “great pressure” to “lower

6 standards” because “that’s the only way it’ll work. . . .” “General Warns: Military Will

7 Face ‘Great Pressure’ to Lower Standards for Women in Combat to Please ‘Agenda-

8 Driven’ in D.C.” CNSNews.com (Jan. 9, 2016), available at

9 https//www.cnsnews.com/print/434264.

10

53. This hostility to women serving in combat positions may also result in a

11 decision by President Trump, or by Defendant Mattis, to reverse and rescind Secretary

12 Panetta’s January 2013 directive. Indeed, Defendant told this Court in November 2017

13 that he could not commit that the January 2013 Panetta directive would not be reversed.

14 See Defendant’s Statement In Response To The Court’s Order of September 22, 2017,

15 Dkt No. 106, filed Nov. 20, 2017, at 2.

16

54. Even if the DoD does not reverse the Panetta directive, its segregation

17 policies and practices are clearly unconstitutional because they are not supported by an

18 “exceedingly persuasive” justification that is substantially related to “important

19 governmental objectives.” Virginia, 518 U.S. at 533. Indeed, Defendant has not provided

20 any justification for the Leaders First policy. For example, Defendant has never explained

21 why men who are already leading soldiers in a combat unit should not be given the

22 responsibility to mentor and guide women soldiers just as they would the male soldiers in

23 the chain of command. Defendant also has not provided any justification for a policy that

24 deliberately leads to the isolation and segregation of women, either during training or

25 upon accession to a combat arms unit.

26

55. A “Leaders First” or segregated basic training policy for black soldiers,

27 Latino soldiers, or gay soldiers could never pass Constitutional muster. Defendant has

28 never explained why women should be treated differently.

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1

56. Defendant cannot justify his gender segregation policies and practices by

2 arguing that the Court must defer to Defendant’s judgment with respect to managing and

3 assigning servicewomen. See Chappell v. Wallace, 462 U.S. 296, 304 (1983) (“This

4 Court has never held, nor do we now hold, that military personnel are barred from all

5 redress in civilian courts for constitutional wrongs suffered in the course of military

6 service.”); Emory v. Sec’y of Navy, 819 F.2d 291, 294 (D.C. Cir. 1987) (“Where it is

7 alleged, as it is here, that the armed forces have trenched upon constitutionally guaranteed

8 rights through the promotion and selection process, the courts are not powerless to act”).

9 Accord, Doe 1 v. Trump, 275 F. Supp. 3d 167, 210-12 (D.D.C. 2017) (granting

10 preliminary injunction with respect to Presidential Memorandum barring transgender

11 individuals from serving in the Armed Forces); Service Women’s Action Network v.

12 Mattis, No. 12-CV-06005 EMC, 2018 WL 2021220 (N.D. Cal. May 1, 2018).

13

57. Defendant also cannot justify his gender segregation policies and practices

14 by claiming that they reduce the likelihood that male soldiers will assault women soldiers.

15 See Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach

16 of the law, but the law cannot, directly or indirectly, give them effect”); Doe 1, 275

17 F. Supp. 3d at 212, quoting Virginia, 518 U.S. at 533 (government justification for

18 gender-based classification “must not rely on overbroad generalizations about the

19 different talents, capacities, and preferences of males and females”).

20

58. Historically, the exclusion of women from combat units, positions, careers,

21 and schools was based on the presumption that no woman had the necessary physical

22 strength and mental toughness required to serve in combat. Defendant has not relied, and

23 could not rely, on such a presumption to justify the segregation policies and practices that

24 the DoD has put in place.

25

59. Moreover, any purported concerns about the possible effects of integrating

26 women on “unit cohesion” cannot justify the challenged policies and practices. That

27 hoary phrase has long been employed in attempts to justify discrimination against

28 African-American servicemembers, openly gay and lesbian servicemembers, female

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1 servicemembers, and—most recently—transgender servicemembers. For example, Army

2 Chief of Staff Omar Bradley contended in 1949 (in a formal written statement to a

3 Presidential Commission) that the integration of African-American soldiers into military

4 units “might seriously affect morale and thus affect battle efficiency,” with “big

5 problems” likely to arise “in living quarters and social gatherings.” Maj. Laura R. Kesler,

6 Serving with Integrity: The Rationale for the Repeal of “Don’t Ask, Don’t Tell” and Its

7 Ban on Acknowledged Homosexuals in the Armed Forces, 203 Mil. L. Rev. 284, 346

8 (2010). Congress embraced the same reasoning with respect to openly gay and lesbian

9 soldiers in the National Defense Authorization Act of 1994, which asserted that allowing

10 gay servicemembers “would create an unacceptable risk to the high standards of morale,

11 good order and discipline, and unit cohesion that are the essence of military capability.”

12 National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, § 571,

13 107 Stat. 1547, 1670 (1993) (codified at 10 U.S.C. § 654 (2000)). That year, the Army

14 made the same argument with respect to servicewomen, explaining that the presence of

15 women in combat positions would inhibit “bonding and unit cohesion,” which are “best

16 developed in a single gender all male environment.” Carla Crandall, The Effects of

17 Repealing Don’t Ask, Don’t Tell: Is the Combat Exclusion the Next Casualty in the March

18 Toward Integration?, 10 Geo. J. L. & Pub. Pol’y 15, 30 (2012). See also Virginia, 518

19 U.S. at 542-44 (pointing out that “women seeking careers in policing encountered

20 resistance based on fears that their presence would ‘undermine male solidarity.’”) And

21 the current Administration recently made such an argument in support of Mr. Trump’s

22 directive reversing a policy, scheduled to go into effect on January 1, 2018, permitting

23 enlistment of transgender individuals and prohibiting the discharge of such

24 servicemembers on the basis of their gender identity. See Doe 1, 275 F. Supp. 3d at 210-

25 12. In sum, any purported concerns about “unit cohesion” would necessarily be based on

26 fixed notions concerning the roles and preferences of males and females that cannot and

27 do not justify gender-based segregation policies and practices.

28

60. The DoD’s gender segregation policies and practices also cannot be justified

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THIRD AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. C 12-06005 EMC

Case 3:12-cv-06005-EMC Document 122 Filed 06/28/18 Page 21 of 23

1 by broad generalizations about “military effectiveness” or “force readiness.” On the

2 contrary, far from advancing these objectives, the challenged policies and practices

3 undermine them, placing additional strain on already overburdened men and women

4 serving in our Armed Forces.

5

FIRST CLAIM FOR RELIEF

6

DENIAL OF EQUAL PROTECTION UNDER THE FIFTH AMENDMENT

7

61. Plaintiff repeats and realleges the allegations contained in all of the above

8 paragraphs as if fully set forth herein.

9

62. As explained in this Third Amended Complaint, “Leaders First” is an

10 unconstitutional gender-based assignment policy that: (1) deprives junior enlisted

11 servicewomen access to the full range of positions available to their male colleagues,

12 because they are assigned to only those units in which women “leaders” are installed ;

13 (2) deprives women “leaders” access to the full range of positions because they are

14 assigned based on the needs of the “Leaders First” policy; (3) communicates to male

15 servicemembers and leaders in combat units that they have little or no responsibility for

16 the development and advancement of servicewomen; (4) places unusual and unnecessary

17 burdens on junior enlisted women, who are often required to ignore chain of command

18 norms in order to seek counsel from their designated female “leaders”; (5) places unusual

19 and unnecessary burdens on women “leaders,” who are required to divert attention from

20 their own professional development in their new roles in combat units to mentor and

21 supervise junior enlisted women; and (6) causes resentment among male soldiers in

22 combat units.

23

63. The challenged policies and practices are based solely on gender and are not

24 justified by any important governmental objective.

25

64. The challenged policies and practices violate servicewomen’s rights to equal

26 protection of the law, as secured by the Fifth Amendment of the Constitution.

27

65. As set forth in this Complaint, Plaintiff and servicewomen are harmed by

28 the policies and practices challenged in this case.

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1

SECOND CLAIM FOR RELIEF

2

DENIAL OF EQUAL PROTECTION UNDER THE FIFTH AMENDMENT

3

66. Plaintiff repeats and realleges the allegations contained in all of the above

4 paragraphs as if fully set forth herein.

5

67. As explained in this Third Amended Complaint, the U.S. Marine Corps’

6 current policy of gender-segregated basic training is an unconstitutional gender-based

7 policy because it (1) is premised on stereotypes about women’s aptitude for military

8 service; (2) deprives women of equal opportunity for training and mentorship, thus

9 impairing their ability to successfully meet gender-neutral physical standards for their

10 contracted combat MOSs and thereby to continue their training in those specialties; and

11 (3) instructs male recruits and leaders to regard female servicemembers as in need of

12 protection, incapable of competing on equal footing with men, and otherwise as second-

13 class members of the Marine Corps.

14

68. The challenged policies and practices are based solely on gender and are not

15 justified by any important governmental objective.

16

69. The challenged policies and practices violate servicewomen’s rights to equal

17 protection of the law, as secured by the Fifth Amendment of the Constitution.

18

70. As set forth in this Third Amended Complaint, Plaintiff and servicewomen

19 are harmed by the policies and practices challenged in this case.

20

21

PRAYER FOR RELIEF

22

WHEREFORE, Plaintiff prays for judgment as follows:

23

1. Plaintiff respectfully requests that this Court, pursuant to 28 U.S.C. § 2201,

24 enter a declaratory judgment stating that Defendant’s gender segregation policies and

25 practices violate servicewomen’s rights to the equal protection of the laws under the Fifth

26 Amendment.

27

2. Plaintiff respectfully requests that this Court enter an order: (1) enjoining

28 Defendant from enforcing or applying his gender segregation policies and practices; and

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1 (2) requiring Defendant to allow women to apply for and serve in all combat-related

2 positions and schools in all brigades that are open to male soldiers, utilizing the same

3 procedures and rules for the accession and assignment of women soldiers that are utilized

4 for men.

5

3. Plaintiff respectfully requests costs of suit, including reasonable attorneys’

6 fees.

7

4. Plaintiff respectfully requests all further relief to which it may be justly

8 entitled.

9 DATED: June 28, 2018 10 11 12 13

MUNGER, TOLLES & OLSON LLP

By

/s/ Rosemarie T. Ring

ROSEMARIE T. RING

Attorneys for Plaintiff SERVICE WOMEN’S ACTION NETWORK

14 Additional Counsel:
15 STEVEN M. PERRY (SBN 106154)
16 MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue, 50th Floor
17 Los Angeles, CA 90071-1560 Telephone: (213) 683-9100
18 Facsimile: (213) 687-3702 Email: steven.perry@mto.com
19 LENORA M. LAPIDUS [pro hac vice]
20 AMERICAN CIVIL LIBERTIES UNION FOUNDATION WOMEN’S RIGHTS PROJECT
21 125 Broad Street, 18th Floor New York, NY 10004
22 Telephone: (212) 549-2668 Facsimile: (212) 549-2580
23 Email: llapidus@aclu.org

24

25 39152032.1

26

27

28

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THIRD AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, CASE NO. C 12-06005 EMC

 
 Service Women’s Action Network v. Mattis, 352 F.Supp.3d 977 (2018)

352 F.Supp.3d 977 United States District Court, N.D. California.
SERVICE WOMEN’S ACTION NETWORK, Plaintiff, v.
James N. MATTIS, Defendant.
Case No. 12-cv-06005-EMC |
Signed 11/29/2018

Liberties Union of No. Calif., San Francisco, CA, Gillian L. Thomas, Pro Hac Vice, Lenora Michelle Lapidus, American Civil Liberties Union, New York, NY, Steven McCall Perry, Munger Tolles & Olson LLP, Los Angeles, CA, for Plaintiff.
Andrew Evan Carmichael, U.S. Department of Justice, Washington, DC, for Defendant.

Synopsis Background: Nonprofit advocating for women in the military brought action against Secretary of Department of Defense alleging Army and Marine Corps policy precluding assignment of women soldiers and Marines to company-level unit until two or more women were assigned, as well as segregated training for Marine Corps, were unconstitutional. Secretary filed motion to dismiss.
Holdings: The District Court, Edward M. Chen, J., held that:
nonprofit had organizational standing to challenge policies;
nonprofit had associational standing to challenge segregated training;
nonprofit did not have associational standing to challenge assignment policy; and
nonprofit plausibly alleged Secretary applied facially discriminatory policy based on gender and that government offered no legitimate and substantial justification.
Motion granted in part and denied in part.
Procedural Posture(s): Motion to Dismiss for Failure to State a Claim; Motion to Dismiss for Lack of Standing.
Attorneys and Law Firms
*979 Rosemarie T. Ring, Rosemarie Theresa Ring, Munger, Tolles & Olson LLP, Christine Patricia Sun, Elizabeth O. Gill, Shilpi Agarwal, American Civil
1

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS
Docket No. 127
EDWARD M. CHEN, United States District Judge
Plaintiff is Service Women’s Action Network (“SWAN”) a nonprofit “to support, connect and advocate for all military women, including current service members, but also veterans and future enlisted women.” Docket No. 122 ¶ 13. Defendant is the Secretary of the Department of Defense, James N. Mattis. Id. ¶ 25. SWAN challenges as unconstitutional the “Leaders First” policy for the Army and Marines Corps, as well as the segregated training for the Marine Corps. Id. ¶ 6, 8. The Secretary moved for a motion to dismiss arguing that SWAN lacked both organizational and associational standing, and that SWAN has not stated a claim upon which relief can be granted. Docket No. 127.
The Court finds that SWAN has organizational standing to challenge both these policies. However, SWAN has failed to plead facts to establish associational standing to bring a claim on behalf of its members to challenge the “Leaders First” policy. SWAN has pled facts to establish associational standing to challenge the Marine Corps’ segregated basic training. SWAN is granted leave to amend its Third Amended Complaint (“TAC”) to allege factual allegations that it has a member who would have standing to challenge the “Leaders First” policy.
The Court also finds that SWAN has stated a claim upon which relief may be granted.

Service Women’s Action Network v. Mattis, 352 F.Supp.3d 977 (2018)

I. FACTUAL & PROCEDURAL BACKGROUND
The original complaint in this matter was filed on November 11, 2012. Docket No. 1. The original complaint challenged the Department of Defense’s 1994 policy that excluded women from ground combat. Docket No. 1 ¶ 1. On January 24, 2013, the Secretary of Defense at the time rescinded the 1994 policy, and stated that the integration of women into combat positions and units must be completed by January 1, 2016. Docket No. 66 at 1. However, on April 28, 2016, the parties in this matter filed a joint case management statement indicating that the “Leaders First” policy would be implemented; this policy requires establishing women leaders into the previously *980 closed units before junior enlisted women are able to join those units. Docket No. 75 at 9-17. The Leaders First policy, adopted by the Army and Marine Corps, “preclude the assignment of women soldiers and Marines to a company-level unit until two or more women ‘leaders’ are assigned to the unit.” Id. ¶ 34. The Armed Services assert that the “ ‘Leaders First’ policy furthers the goal of gender integration.” Id. SWAN pleads that this policy
(1) deprives junior enlisted servicewomen access to the full range of positions available to their male colleagues, because they are only able to be assigned to combat units in which women “leaders” are installed; (2) deprives women “leaders” access to the full range of positions in combat units because they are assigned based on the needs of the “Leaders First” policy; (3) communicates to male servicemembers and leaders in combat units that they have little or no responsibility for the development and advancement of servicewomen; (4) places unusual and unnecessary burdens on junior enlisted women, who are often required to ignore chain of command norms in order to seek counsel from their designated female “leaders”; (5) places
2

unusual and unnecessary burdens on women “leaders,” who are required to divert attention from their own professional development in their new roles in combat units to mentor and supervise junior enlisted women; and (6) causes resentment among male soldiers in combat units.
Id. ¶ 6.
Similarly, the Marine Corps “continue to segregate recruits for basic training into same-gender platoons. The Marine Corps is the only service branch that separates training along gender lines.” Id. ¶ 7. SWAN claims that this policy is unconstitutional because it:
(1) is premised on stereotypes about women’s aptitude for military service; (2) deprives women of equal opportunity for training and mentorship, thus impairing their ability to successfully meet gender-neutral physical standards for their contracted MOSs and thereby to continue their training in those specialties; and (3) teaches male recruits and leaders to regard servicewomen as in need of protection, incapable of competing on equal footing with men, and otherwise as second-class members of the Marine Corps.
Id. ¶ 8.
On December 18, 2017, SWAN filed a Second Amended Complaint. Docket No. 107. On February 2, 2018, the Secretary filed a motion to dismiss for improper venue, lack of justiciability, and lack of standing. Docket No. 110. The Court granted the motion to dismiss on the grounds that SWAN lacked standing, but rejected the Secretary’s arguments as to improper venue and lack of justiciability. Docket No. 118. Following the Court’s order granting the Secretary’s motion to dismiss, SWAN filed the TAC. Docket No. 122.
The TAC states that SWAN’s goals include the

Service Women’s Action Network v. Mattis, 352 F.Supp.3d 977 (2018)

empowerment and promotion of servicewomen. Id. ¶ 14. SWAN describes its main areas of focus as:

(1) unifying servicewomen as a

nationwide community, through in-

person events and online

engagement; (2) connecting

servicewomen with the resources

they and their families need,

primarily through building

partnerships

with

other

organizations; and (3) amplifying

the voices of servicewomen by

advocating for them on a wide

range of issues, by participating in

coalitions, conducting a national

survey on the needs *981 of

women in the military, and

educating members of Congress as

to those needs.

Id. ¶ 15.
In furtherance of its goals, SWAN engages in the following activities: (a) fielding on average ten phone calls, Facebook posts, and emails per month from servicewomen looking for assistance with legal services and other issues; (b) seeking partnerships and coalition building with other organizations that assist women veterans; (c) creating a database of services for women in the military; (d) keeping Congress informed on issues related to women in the military by having educational Hill visits for its members; (e) developing a three-year strategic plan which includes “establishing a 501(c)(4) arm, increase and diversify funding sources, to create an online Resource Portal, to develop strategic partnerships with other organizations that can provide resources to servicewomen, and to develop a prioritized engagement plan that sets forth how SWAN will educate and mobilize key stakeholders and members to support professional growth.” Id. ¶ 16.
SWAN asserts that the policies at issue have forced it to “divert its resources from direct advocacy promoting servicewomen and their needs during and after active service to engagement and advocacy regarding the gender segregation policies and practices that are the subject of this suit.” Id. ¶ 14. SWAN contends that it has been forced to redirect “its limited resources and limited staff hours to answering questions from women who seek to enter combat roles, who are entering these roles under the
3

‘Leaders First’ policy, or who are experiencing or who have experience the segregated Marine Corps training.” Id. ¶ 19.
SWAN pleads that its servicewomen members describe concerns about career advancement and opportunities because of “Leaders First” and the Marine Corps segregated training. Id. SWAN claims that these two policies have led to harassment from male counterparts. Id. The TAC states that to cope with these inquiries and concerns, it must devote many hours of limited staff time. Id.
Additionally, “in direct response to concerns raised through SWAN’s Facebook page, SWAN staff held (and sponsored) a one-day ‘Trailblazers Workshop’ in Fort Hood, Texas in order to support the first class recruits trained for Army infantry roles at Fort Hood.” Id. ¶ 20. This workshop was to “support and connect these infantry women in their day-to-day struggles, and to brainstorm how to deal with the ramifications of the ‘Leaders First’ policy and the continuing barriers and stigmatizations it creates.” Id. ¶ 20. SWAN expressed an intention to hold another workshop in Fort Bragg, North Carolina. Id.
SWAN claims that approximately 15% of its staff’s work hours have been spent addressing concerns regarding the policies at issue in this matter. Id. ¶ 21. SWAN has been forced to divert resources for “reaching out to Congress and other policymakers to advocate against these policies and practices, or connecting servicewomen to resources or networks that they need as they attempt to navigate military careers under these policies and practices.” Id. But for the policies at issue here, SWAN believes it would be able to spend its time and resources focusing on its strategic plan rather than wasting valuable time combatting the effects of these policies. Id.
“SWAN is a membership organization.” Id. ¶ 22. SWAN’s membership is comprised of servicewomen that communicate with SWAN through Facebook, phone calls, emails and through its monthly e-newsletter. Id. In the TAC, SWAN shared *982 stories of how these policies have impacted its members.
For example, with respect to “Leaders First,” SWAN has a member who is an Infantry Platoon Leader in the Army National Guard. Because of the “Leaders First” policy, this member was treated differently from her male counterparts by being denied the

Service Women’s Action Network v. Mattis, 352 F.Supp.3d 977 (2018)

ability to take inactive guard status for six months at the beginning of her service while she completed the civilian training required for her job as a Denver Police Officer. This in turn led to her not being able to participate fully in the training of her National Guard cohort, which caused her to be perceived as getting different treatment from her male counterparts and ultimately ranked last as a Platoon Leader in the cohort.

are based in part on “animus towards servicewomen on the part of the DoD and the Administration.” Id. ¶ 47.
On August 8, 2018, the Secretary filed a motion to dismiss arguing that the TAC must be dismissed because SWAN lacks standing and failed to state a claim upon which relief can be granted. Docket No. 127. On September 27, 2018, the Court heard arguments from both parties on these two issues. Docket No. 133. The Court found that SWAN has standing to bring this cause of action and has stated a claim upon which relief can be granted. Id.

Id. ¶ 23. SWAN also explained that members in the Marine Corps suffer harassment and stigmatization as a result of the segregated training. Id. ¶ 24. The TAC quotes one SWAN member explaining that
The purpose of boot camp is to break down recruits by stripping them of their individuality, to form a team, to listen to superiors and act on their command without questions, and to “make Marines.” The male experience is different in that misogyny, sexism, gender bias and the general hate that women have infiltrated their boys’ club are taught during segregated boot camp and reinforced in male-only units.
Id.
Similarly, SWAN argues that because of “Leaders First,” junior enlisted women are limited to certain units and positions. Id. ¶ 36. The TAC states that with respect to the National Guard only two states (Colorado and New Hampshire) have met the requirements for “Leaders First.” Id. ¶ 37. SWAN contends that the “Leaders First” policy relegates “women, literally and figuratively, to a ‘supporting role’ in our Armed Forces based on stereotypes about women and assumptions about battlefield conditions that do not reflect the reality that women are already serving in combat situations, and doing so with distinction.” Id. ¶ 40. The segregated training, SWAN believes, fosters an environment that leads to an increased likelihood of sexual harassment and sexual assault. Id. The TAC discusses how these policies
4

II. DISCUSSION
A. Standing The Secretary challenges SWAN’s standing to bring this action. The Court previously addressed the issue of standing and dismissed the Second Amended Complaint because SWAN failed to plead sufficient facts showing organizational standing or associational standing. Docket No. 118 at 18–22. The Court specifically found that SWAN’s allegations of standing were too conclusory. Id. at 22 (“SWAN does not provide any specificity in describing (1) from what and (2) to what its resources have been reallocated.”).
To establish standing, a party must allege factual allegations showing the three requirements for standing are met. *983 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The three requirements are: (1) there must be injury in fact, meaning an injury that is “concrete and particularized,” and “actual or imminent”; (2) the injury must be “fairly traceable” to the defendant’s conduct; and (3) it must be more than speculative that the injury will be redressable through success in the matter. Id. at 560–61, 112 S.Ct. 2130. The standing inquiry is “especially rigorous” when a court is deciding the constitutionality of another branch’s actions. Clapper v. Amnesty Intern. USA, 568 U.S. 398, 408, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (quoting Raines v. Byrd, 521 U.S. 811, 819–820, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) ). “In deciding whether a plaintiff has made this showing, we ‘accept as true all material allegations of the complaint’ and ‘construe the complaint in favor of the complaining party.’ ” Nat’l Council of La Raza v. Cegavske, 800 F.3d

Service Women’s Action Network v. Mattis, 352 F.Supp.3d 977 (2018)

1032, 1039 (9th Cir. 2015) (quoting Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) ). SWAN claims that it has both organizational standing associational standing to challenge the two policies at issue here. Docket No. 128 at 2–8.1
1. Organizational Standing An organization has standing to bring a claim on its own behalf if it can show that it has suffered due to a diversion of its resources to address a problem and that it has experienced a “frustration of its mission.” Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012) (quoting Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002). It is not enough to “manufacture the injury by incurring litigation costs or simply choosing to spend money fixing a problem that otherwise would not affect the organization at all.” La Asociacion de Trabajadores de Lake Forest v. Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). An organization “must instead show that it would have suffered some other injury if it had not diverted resources to counteracting the problem.” *984 Id. It “may sue only if it was forced to choose between suffering an injury and diverting resources to counteract the injury.” Id. at 1088 n.4. In Havens Realty Corp. v. Coleman, the Supreme Court held that a consequent drain on an organizations resources can constitute concrete and demonstrable injury sufficient to establish organizational standing. In Havens Realty Corp., the Court found standing where racial steering practices required the organization to “devote significant resources to identify and counteract the defendant’s [sic] racially discriminatory steering practices” and frustrated its purpose. Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (alteration in original). The Ninth Circuit applied Havens in Fair Housing Council of San Fernando Valley v. Roommate.com, LLC and found that an organization had standing where the organization “started new education and outreach campaigns targeted at discriminatory roommate advertising.” Fair Hous. Council of San Fernando Valley, LLC, 666 F.3d at 1219. The Ninth Circuit held that “[b]ecause Roommate’s conduct caused the FHCs to divert resources independent of litigation costs and frustrated their central mission” the organization had standing. Id. Similarly, the Ninth Circuit in National Council of La Raza v. Cegavske, applying Havens, found that an organization had standing where “[t]he complaint specifically allege[d] that Plaintiffs expended additional resources that they would not otherwise have expended, and in ways that they would not have expended them.”
5

Cegavske, 800 F.3d at 1040. In that case, the plaintiffs were unable to “allocate substantial resources to other activities central to [their] mission[s].” Id. (alteration in original).
Here, SWAN, in its Complaint, describes how “Leaders First” and the Marine Corps’ segregated basic training frustrates its goal of empowering and promoting women in service. Docket No. 122 ¶ 14. Importantly, SWAN alleges in some detail how it has been forced to divert resources in response to these policies. For example, SWAN has alleged that “because of the policies and practices that are the subject of this suit, SWAN has had to redirect its limited resources and limited staff hours to answering questions from women who seek to enter combat roles, who are entering these roles under the ‘Leaders First’ policy, or who are experiencing or who have experienced the segregated Marine Corps training.” Id. ¶ 19. SWAN also alleges that the services it provides to its members is impeded because “approximately 15% of its staff’s work hours have been spent addressing concerns regarding the policies at issue in this matter.” Id. ¶ 21. Not only has SWAN had to divert resources towards fielding questions from members in these programs, but “in direct response to concerns raised through SWAN’s Facebook page, SWAN staff held (and sponsored) a oneday ‘Trailblazers Workshop’ in Fort Hood, Texas in order to support the first class recruits trained for Army infantry roles at Fort Hood.” Id. ¶ 20. This workshop was directly focused on how women can deal with the “ramifications of the ‘Leaders First’ policy and the continuing barriers and stigmatizations it creates.” Id.
In Smith v. Pac. Properties & Dev. Corp., the Ninth Circuit found a sufficient “showing of a ‘diversion of resources’ and to survive a 12(b)(6) motion” where the plaintiff “specifically stated in its complaint that ‘in order to monitor the violations and educate the public regarding the discrimination at issue,” the plaintiff had “to divert its scarce resources from other efforts to promote awareness of—and compliance with—federal and state accessibility laws *985 and to benefit the disabled community in other ways (for example, [the organization’s] efforts to free disabled persons from nursing homes.).” Smith v. Pac. Properties & Dev. Corp., 358 F.3d 1097, 1105–06 (9th Cir. 2004). In this case, SWAN has similarly been forced to divert its scarce resources to fielding phone calls and putting on a workshop to combat the negative effects of the policies. But for the two policies at issue here, it would have used its limited budget towards its strategic plan. Docket No. 122 ¶ 21.
As the cases above demonstrate, such a specific allegation of diversion of resources suffices to establish

Service Women’s Action Network v. Mattis, 352 F.Supp.3d 977 (2018)

organizational standing. Indeed, the Ninth Circuit has specifically found that diversion of resources for “outreach campaigns” and educating the public establishes a diversion of resources sufficient to establish organizational standing. See Cegavske, 800 F.3d at 1040 (finding that “The [Supreme] Court has also made clear that a diversion-of-resources injury is sufficient to establish organizational standing at the pleading stage, even when it is ‘broadly alleged.’ ”); Pac. Properties & Dev. Corp., 358 F.3d at 1105–06. Those cases are apposite here.
Therefore, SWAN has organizational standing to challenge the “Leaders First” policy and the segregated basic training in the Marine Corps.
2. Associational Standing SWAN also argues that it has pled factual allegations that it has members who would have standing and therefore it can challenge the “Leaders First” policy and the Marine Corps segregated training based on associational standing. For SWAN to assert associational standing, it must show “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Associated Gen. Contractors of Am., San Diego Chapter, Inc. v. California Dep’t of Transp., 713 F.3d 1187, 1194 (9th Cir. 2013) (citing Associated Gen. Contractors of Am. v. Metro. Water Dist. of S. Cal., 159 F.3d 1178, 1181 (9th Cir. 1998).
To show that a member would have standing to sue in his or her own right, the organization “must show that a member suffers an injury-in-fact that is traceable to the defendant and likely to be redressed by a favorable decision.” Associated Gen. Contractors of Am., San Diego Chapter, Inc., 713 F.3d at 1194.
In the TAC, SWAN gives examples of members who have previously suffered from the allegedly discriminatory policies at issue in this matter. Docket No. 122 ¶ 23 (describing a member who was denied the opportunity to take inactive status because she had to stay on as a leader for the purposes of the “Leaders First” policy); Id. ¶ 24 (describing how segregated boot camp leads to stigmatization). For example, SWAN asserts that a member “was treated differently from her male counterparts by being denied the ability to take inactive guard status for six months at the beginning of her service
6

while she completed civilian training required for her job as a Denver Police Officer.” Docket No. 122 ¶ 23. SWAN argues that this denial “led to her not being able to participate fully in the training of her National Guard cohort, which caused her to be perceived as getting different treatment from her male counterparts and ultimately ranked last as a Platoon Leader in the cohort.” Id.
However, past injury alone is not sufficient to establish associational standing, particularly where the sole relief sought is prospective. See *986 Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (requiring that an injury must be “actual or imminent, not ‘conjectural’ or ‘hypothetical’ ”). See also Summers v. Earth Island Institute, 555 U.S. 488, 495, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (rejecting standing in part “because it relates to past injury rather than imminent future injury that is sought to be enjoined.”); City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Furthermore, SWAN does not explain how the proposed injunctive relief sought, ending the Leaders First policy, would provide redress for the member being ranked last as a Platoon Leader. To establish standing for prospective injunctive relief, SWAN must show that a member “has suffered or is threatened with a ‘concrete and particularized’ legal harm,” and has “ ‘a sufficient likelihood that [she] will again be wronged in a similar way.’ ” Bates v. United Parcel Service, Inc., 511 F.3d 974, 985 (9th Cir. 2007) (quoting Lyons, 461 U.S. at 111, 103 S.Ct. 1660).”
In this case, the remedy SWAN seeks is “an order (1) enjoining Defendant from enforcing or applying his gender segregation policies and practices; and (2) requiring Defendant to allow women to apply for and serve in all combat-related positions and schools in all brigades that are open to male soldiers, utilizing the same procedures and rules for the accession and assignment of women soldiers that are utilized for men.” Docket No. 122, Prayer for Relief ¶ 2. This requested prospective relief would not redress the past harm of being denied the opportunity to seek inactive duty. Bates, 511 F.3d at 985 (recognizing that a plaintiff must establish a “real and immediate threat of repeated injury” and that “the claimed threat of injury must be likely to be redressed by the prospective injunctive relief”). In particular, removing the current policy would not redress the member for the harm of being “perceived as getting different treatment from her male counterparts and ultimately ranked last as a Platoon Leader in the cohort.” Docket No. 122 ¶ 23. Additionally, SWAN has not alleged that it is likely that this member will again seek inactive guard status. Although the TAC generally alleges servicewomen are subject e.g. to resentment from males and harassment

Service Women’s Action Network v. Mattis, 352 F.Supp.3d 977 (2018)

resulting from the Leaders First policy (see TAC, Paragraphs 6, 34, 36, and 40), the TAC does not specifically allege harm to its members. See Bayaa v. United Airlines, Inc., 249 F.Supp.2d 1198, 1203–04 (C.D. Cal. 2002) (rejecting associational standing where the plaintiff did “not claim that the eleven individuals allegedly [injured] ... [were] its members”). The member described in Paragraph 23 of the TAC is the only member of SWAN which the TAC specifically alleges an injury from the “Leaders First” policy. As SWAN has not established that it has a member whose injuries resulting from the “Leaders First” policy would be redressed by the prospective relief SWAN seeks, SWAN has not established associational standing to seek that relief.
SWAN does claim that it has members “in the Marine Corps who continue to suffer harassment and stigmatization from their male counterparts based on the segregated training, which perpetuates a culture that differentiates and excludes women.” Docket No. 122 ¶ 24. While SWAN does not state that it has members who will soon join the segregated basic training imminently or that it has members who are currently in the segregated basic training, SWAN does allege that it has members who currently are experiencing the harm (e.g., harassment) from the sexist culture and connotation that arises from segregated basic training. Id. As to likelihood of obtaining redress from the relief sought herein, it is plausible that ending the Marine Corps segregated basic training, *987 which SWAN argues “perpetuates a culture that differentiates and excludes women” would change the culture that is causing harassment and stigmatizations for its members. Thus, SWAN has asserted an ongoing harm to its members that may be redressed by the prospective remedy sought herein at least for pleading purposes.
In order to establish associational standing, SWAN must also assert that “(b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Associated Gen. Contractors of Am., San Diego Chapter, Inc., 713 F.3d at 1194.
As to prong (b), SWAN describes its goals as seeking “to empower and promote servicewomen.” Obtaining equal treatment of women in the military and preventing harassment and stigmatization of service women is germane to the organizations purpose of promoting and empowering women in military service. See Greater Los Angeles Council on Deafness, Inc. v. Baldrige, 827 F.2d 1353, 1358 (9th Cir. 1987) (finding an organization whose “members consist of deaf or hearing-impaired
7

individuals” had representational standing because the organization sought “to protect the interests of [hearingimpaired] individuals and alleged that this was one of its objectives”). As to prong (c), the Secretary has not raised any arguments that the individual members must be a party to this lawsuit, nor does the Court find any reason why the servicewomen members would need to be a party to this lawsuit.
For the reasons stated herein, SWAN has alleged enough facts to establish associational standing to challenge the Marine Corps segregated basic training on behalf of its members for purposes of Defendant’s motion to dismiss.
Although SWAN has not sufficiently alleged associational standing to challenge the “Leaders First” policy, it is given leave to amend its complaint to include factual allegations to establish associational standing as it relates to the “Leaders First” policy.
B. Failure to State a Claim2 When a Court evaluates a motion to dismiss for failure to state a claim upon which relief can be granted, it must “accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party.” Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014). However, in order for a plaintiff’s complaint to survive a 12(b)(6) motion to dismiss, it is required to plead “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955; accord Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) *988 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).
The Secretary argues that the Supreme Court’s decision, Trump v. Hawaii, dictates the standard of review in this matter. Docket No. 127 at 18–22. The Secretary asserts that courts must be highly deferential when reviewing military decisions, id. at 24–25, and that under such deferential review, SWAN has failed to state a claim upon which relief can be granted. Id.
The Court does not agree. The highly deferential standard articulated in Trump does not apply here. Trump involved the decision of the Executive to deny admission to certain aliens from entering the country based on consideration of

Service Women’s Action Network v. Mattis, 352 F.Supp.3d 977 (2018)

national security and foreign relations. In Trump, “[t]he Proclamation ... sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present ‘public safety threats.’ ” Trump v. Hawaii, ––– U.S. ––––, 138 S.Ct. 2392, 2404, 201 L.Ed.2d 775, (2018). The Supreme Court recognized that “[t]o further that purpose, the Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate.”
Trump was animated by two important factors: (1) plaintiffs sought “to invalidate a national security directive regulating entry to aliens abroad” and (2) that the executive order was “facially neutral toward religion.” Id. at 2418. Furthermore, the Court explained that “[f]or more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’ ” Id. (quoting Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) ).
The present case is distinguishable from Trump in multiple ways. This case, unlike Trump, involves a facially discriminatory policy that treats men and women differently. Trump, 138 S.Ct. at 2418. The facial neutrality of the executive order in Trump informed the Court’s deferential standard. Id. Unlike a facially neutral policy, there is no need to inquire into the deliberative process and discern intent and motive of the executive branch. The deferential standard in Trump concerned that inquiry.
Second, Trump involved the intersection of immigration policy and national security. Trump observed in particular that the “narrow standard of review ‘has particular force’ in admission and immigration cases that overlap with ‘the area of national security.’ ” Trump, 138 S.Ct. at 2419 (quoting Kerry v. Din, ––– U.S. ––––, 135 S.Ct. 2128, 2140, 192 L.Ed.2d 183 (2015) (Kennedy, J., concurring in judgment) ). Nor does the case at bar pertain to the admission of foreign nationals outside the United States; Trump dealt with the admission and exclusion of foreign nationals who traditionally have been understood to be “largely immune from judicial control.” Id. at 2418. In contrast, the case at bar concerns U.S. citizens and residents qualified to serve in our armed services, persons who enjoy the full measure of protection under the constitution. Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).
Furthermore, the “[j]udicial inquiry into the national-
8

security realm raises concerns for the separation of powers’ by intruding on the President’s constitutional responsibilities in the area of foreign affairs.” Id. (quoting Ziglar v. Abbasi, ––– U.S. ––––, 137 S.Ct. 1843, 1861, 198 L.Ed.2d 290 (2017) ). Trump involved the *989 particular confluence of “admission and immigration”, “national security”, and “foreign affairs.” Id. The Court referenced the specific need for deference when it recognized that “ ‘Any rule of constitutional law that would inhibit the flexibility’ of the President ‘to respond to changing world conditions should be adopted only with the greatest caution,’ and our inquiry into matters of entry and national security is highly constrained.” Id. at 2419– 20 (quoting Diaz, 426 U.S. at 81–82, 96 S.Ct. 1883).
The two policies at issue in the instant case do not inhibit the President from responding to changing world conditions, nor do the policies touch on the specific areas of “admission and immigration”, “national security”, and “foreign affairs” that the Supreme Court deemed warranted the deferential standard laid out in Trump.
The Secretary argues that “[t]he Supreme Court further explained that this deferential review may apply ‘across different contexts and constitutional claims,’ even when evaluating a ‘categorical’ classification ‘on the basis of sex.’ ” Docket No. 127 at 19 (quoting Trump, 138 S.Ct. at 2419). However, the Secretary fails to provide the fuller quotation wherein the Court stated deferential review would be applied even in the context of a classification “on the basis of sex,” because “ ‘it is not the judicial role in cases of this sort to probe and test the justifications’ of immigration policies.” Trump, 138 S.Ct. at 2419 (emphasis added). Trump dealt with the narrow issue of an executive order regarding aliens abroad in the immigration context informed by foreign policy and national security concerns. Id. at 2418. The language cited by the Secretary was specifically related to the potential for the highly deferential review to apply to categorical classifications on the basis of sex in the immigration context. Id.
The Ninth Circuit’s recent decision, Regents of the Univ. of California v. U.S. Dep’t of Homeland Sec., confirms the limited scope of Trump. In that case, the Ninth Circuit did not apply the highly deferential standard articulated in Trump to a challenge of the U.S. Department of Homeland Security’s decision to rescind the Deferred Action for Childhood Arrivals (“DACA”) program, finding that case “differ[ed] from Hawaii in several potentially important respects, including the physical location of the plaintiffs within the geographic United States, the lack of a national security justification for the challenged government action, and the nature of the

Service Women’s Action Network v. Mattis, 352 F.Supp.3d 977 (2018)

constitutional claim raised.” Regents of the Univ. of California v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 520 (9th Cir. 2018) (citing Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 781 (9th Cir. 2014) (en banc) ). Other courts have refused to apply Trump to challenges to discriminatory practices within the military. See Stockman v. Trump, 331 F.Supp.3d 990, 1001–02 (C.D. Cal. 2018) (Bernal, J.) (finding that Trump did not apply to a policy “banning transgender people from the military”); Karnoski v. Trump, 328 F.Supp.3d 1156 (W.D. Wash. 2018) (Pechman, J.) (reiterating that the transgender ban in the military “is subject to strict scrutiny”). Cf. Ramos v. Nielsen, 321 F.Supp.3d 1083, 1127–31 (N.D. Cal. 2018) (Chen, J.) (holding that “Trump did not address the standard of review to be applied under the equal protection doctrine when steps are taken to withdraw an immigration status or benefit from aliens lawfully present and admitted into the United States for reasons unrelated to national security or foreign affairs.”).
Instead of Trump, the Court looks to Rostker v. Goldberg for the legal standard of reviewing gender based discrimination claims in the military context. There, the Supreme Court addressed the merits of whether a statute that allowed the President *990 to require men and not women to register for the draft was constitutional. Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981). In that case the Court noted that

The Solicitor General argues ... that

this Court should scrutinize the

MSSA only to determine if the

distinction drawn between men and

women bears a rational relation to

some legitimate Government

purpose, and should not examine

the Act under the heightened

scrutiny with which we have

approached

gender-based

discrimination. We do not think

that the substantive guarantee of

due process or certainty in the law

will be advanced by any further

“refinement” in the applicable tests

as suggested by the Government.

Announced degrees of “deference”

to legislative judgments, just as

levels of “scrutiny” which this

Court announces that it applies to

particular classifications made by a

legislative body, may all too readily

become facile abstractions used to

justify a result. In this case the

9

courts are called upon to decide whether Congress, acting under an explicit constitutional grant of authority, has by that action transgressed an explicit guarantee of individual rights which limits the authority so conferred. Simply labeling the legislative decision “military” on the one hand or “gender-based” on the other does not automatically guide a court to the correct constitutional result.
Id. at 69–70, 101 S.Ct. 2646 (internal citations omitted). The Supreme Court rejected the Solicitor General’s assertion of deferential rational basis review. Id. Instead, the Court examined the factual bases for the challenged policy of excluding women from selective service, examining the extent to which Congress carefully and thoughtfully decided to implement the draft for men only. Id. at 69–82, 101 S.Ct. 2646; see also United States v. Virginia, 518 U.S. 515, 573, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (Scalia, J., dissenting) (describing Rostker as applying intermediate-scrutiny), Pitts v. Thornburgh, 866 F.2d 1450, 1455 (D.C. Cir. 1989) (citing Rostker as an example of one of “the many cases finding that even while the government favors a traditionally protected class with immediate benefits or exemption from an immediate burden, its acts are still subject to heightened scrutiny”). For example, the Rostker Court found that “[i]n light of the floor debate and the Report of the Senate Armed Services Committee ... discussed, it is apparent that Congress was fully aware not merely of the many facts and figures presented to it by witnesses who testified before its Committees, but of the current thinking as to the place of women in the Armed Services.” Id. at 71, 101 S.Ct. 2646. The Court similarly recognized that “[n]o one could deny that under the test of Craig v. Boren [429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) ] the Government’s interest in raising and supporting armies is an ‘important governmental interest.’ Congress and its Committees carefully considered and debated two alternative means of furthering that interest” and chose to only register men for the draft. Id. at 69, 101 S.Ct. 2646. The Supreme Court did not just accept the conclusions of Congress, but evaluated how Congress reached its conclusion.
In this case, SWAN alleges that the Marine Corps segregated basic training “is premised on stereotypes about women’s aptitude for military service.” Docket No. 122 ¶ 8. Furthermore, the Leaders First policy “relegate[s] women, literally and figuratively, to a ‘supporting role’ in

Service Women’s Action Network v. Mattis, 352 F.Supp.3d 977 (2018)

our Armed Forces based on stereotypes about women and assumptions about battlefield conditions that do not reflect the reality that women are already serving in combat *991 situations, and doing so with distinction.” Id. ¶ 40. SWAN pleads that as it relates to the implementation of these policies “the DoD’s segregation policies are at least in part the result of animus towards servicewomen on the part of the DoD and the Administration.” Id. ¶ 47. SWAN notes that “In 2015, Defendant Mattis ... demonstrated his animus towards women soldiers when he proclaimed that women should not be allowed to serve in combat units because if they did serve, America’s enemies would no longer fear ‘America’s awesome determination to defend herself.’ ” Id. ¶ 49.3 The Secretary claims that Leaders First is based on studies such as the Gender Integration Study. Docket No. 127 at 20–21. It is not clear whether or to what extent these studies were considered in the formulation of the policy, unlike in Rostker where there was a clear record of debate, Senate Report, etc. At least for pleading purposes, SWAN’s claims related to the Leaders First policy survive a motion to dismiss under Rostker.
With respect to the Marine Corps segregated basic training, the Secretary’s stated justification is that “the training program is based upon the government’s interest in maintaining the military readiness of the Marine Corps and not that of gender discrimination.” Id. at 23. The Secretary also cites to a recent RAND Corporation report which “explained that by separating male and female recruits at the initial stages of MCRT, the Marine Corps ‘[s]eeks to raise expectations for individual performance, instill high levels of confidence, and maximize physical fitness while minimizing injuries’ without distraction.” Id. He also references a Congressional Commission study from 1999 which found that gender segregated training helped with combat readiness. Id. at 24. The Secretary, by referencing these documents but not properly requesting that the Court judicially notice them, asks the Court to assume the truth of them and assume that they were the basis for the proposed policies.4 However, that is not the appropriate standard at the motion to dismiss stage. Ponomarenko v. Shapiro, 287 F.Supp.3d 816, 826 (N.D. Cal. 2018) (citing MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (“the Court’s review on *992 a motion to dismiss is limited to the four corners of

the complaint.”).
For the purposes of a motion to dismiss, the Court must accept as true the factual allegations in the complaint. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Here, SWAN has alleged that the Secretary has applied a facially discriminatory policy based on gender, and that the government offers no legitimate and substantial justification therefor. There may be a factual dispute as to the basis for the policies at issue, but SWAN has pled allegations that state a plausible claim for relief. The TAC pleads a plausible claim for relief under the Equal Protection Clause sufficient to survive a motion to dismiss. Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
The Secretary’s motion to dismiss for failure to state a claim upon which relief can be granted is denied.
III. CONCLUSION
The Court finds that SWAN has alleged sufficient facts to establish organizational standing to challenge both policies and associational standing to challenge the Marine Corps’ segregated training policy. SWAN has not sufficiently alleged associational standing to challenge the Leaders First policy but is given thirty (30) days to amend. The Court also finds that SWAN has stated a claim upon which relief can be granted. For these reason, the Secretary’s Motion to Dismiss is DENIED in part and GRANTED in part.
This order disposes of Docket No. 127.
IT IS SO ORDERED.
All Citations
352 F.Supp.3d 977

Footnotes

1

The Secretary presents for the first time in his Reply Brief the argument that Gill v. Whitford prevents the Court from addressing

the issues raised in this matter. He argues that because “the Supreme Court found that a citizen did not have standing to

challenge a gerrymandered district in a neighboring district within the citizen’s state of residence” the Court cannot find standing

here where “a Washington, D.C. based advocacy group, seeks to establish its standing without alleging that it has suffered any

diversion of resources within the Northern District of California or even within the State of California.” Docket No. 129 at 5 n.3.

This belatedly raised argument is waived. In any event, it is without merit. The Court has already addressed the issue of venue in

10

Service Women’s Action Network v. Mattis, 352 F.Supp.3d 977 (2018)

this case. Docket No. 118. Gill v. Whitford was not an organizational standing case. The question of organizational standing addressed herein is distinct from the question of venue. In Gill, no plaintiff could establish injury - the Court found that “not a single plaintiff sought to prove that he or she lives in a cracked or packed district” and therefore plaintiffs were unable to show any injury. Gill v. Whitford, ––– U.S. ––––, 138 S.Ct. 1916, 1932, 201 L.Ed.2d 313 (2018). Lack of injury, not venue, was the issue. In the same footnote in his reply brief, the Secretary belatedly argues that “as a practical matter it is also difficult to see how the Court’s exercise of jurisdiction over the Marine Corps policies at issue could square with the Ninth Circuit’s recent decision in City & Cty. of S.F. v. Trump, 897 F.3d 1225 (9th Cir. 2018), vacating a nation-wide injunction to the extent it applies outside of the State of California.” Docket No. 129 at 5 n.3. The Secretary appears to assert that the Court cannot hear this matter because courts are barred from issuing nationwide injunctive relief; however, that is not the holding of that case. The Ninth Circuit stated “[w]e are unpersuaded by the Administration’s arguments in favor of a blanket restriction on all nationwide injunctions. And we do not wish to interfere with the district court’s considerable discretion in ordering an appropriate equitable remedy.” City & Cty. of San Francisco, 897 F.3d at 1244–45.

2

The Court rejects SWAN’s argument that under 12(g) the Secretary cannot raise a motion to dismiss for failure to state a claim

because of a previous motion to dismiss the Second Amended Complaint. The Ninth Circuit has held that “[d]enying late-filed

Rule 12(b)(6) motions and relegating defendants to the three procedural avenues specified in Rule 12(h)(2) can produce

unnecessary and costly delays, contrary to the direction of Rule 1.” In re Apple Iphone Antitrust Litig., 846 F.3d 313, 318 (9th Cir.

2017), cert. granted sub nom. Apple Inc. v. Pepper, ––– U.S. ––––, 138 S.Ct. 2647, 201 L.Ed.2d 1049 (2018). In light of the Ninth

Circuit’s approach to late filed motions, the Court will consider the Secretary’s 12(b)(6) motion to dismiss.

3

SWAN seeks to include statements made by the Secretary after the filing of the TAC. Docket No. 132. SWAN requests under Local

Rule 7-3(d) leave from the Court to submit an article and transcript of public statements made by the Secretary. Local Rule 7-3(d)

states that “[o]nce a reply is filed, no additional memoranda, papers or letters may be filed without prior Court approval,” except:

“[i]f new evidence has been submitted in the reply, the opposing party may file and serve an Objection to Reply Evidence”, or a

Statement of Recent Decision. L.R. 7-3(d). SWAN does not assert that the transcript is in response to new evidence presented in

the Secretary’s Reply Brief, nor is this a Statement of Recent Decision. Therefore, the Court denies SWAN’s request for leave to

file additional statements by the Secretary.

4

The Secretary in its motion to dismiss includes at least fifteen footnotes of various links for the Court to accept as true for the

purposes of a motion to dismiss. Docket No. 127. The Secretary does so without properly requesting the Court judicially notice

these documents. Additionally, the Ninth Circuit recently found that it was an abuse of discretion to judicially notice content that

is subject to different interpretations, as many of the Secretary’s cited footnotes require. See Khoja v. Orexigen Therapeutics, Inc.,

899 F.3d 988, 1000 (9th Cir. 2018). For these reason, the Court grants the one lone request to judicially notice the fact that

“President Trump, Secretary Mattis and Gen. (ret.) Kelly were not members of the Joint Chiefs of Staff on January 9, 2013.”

Docket No. 127 at 16 n. 9. The remaining citations that the Secretary cited to without a request for judicial notice shall be ignored

by the Court for the purposes of the motion to dismiss.

End of Document

11

 
 Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 1 of 25
ADRMOP,PROTO,REFDIS,REFSET−LB,STAYED
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:12−cv−06005−EMC

Service Women's Action Network v. Esper Assigned to: Hon. Edward M. Chen Referred to: Magistrate Judge Laurel Beeler Cause: 42:1983 Civil Rights Act
Plaintiff
Mary Jennings Hegar TERMINATED: 12/18/2017

Date Filed: 11/27/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Rosemarie T Ring Munger Tolles and Olson 560 Mission Street, 27th Floor San Francisco, CA 94105 415−512−4008 Email: rose.ring@mto.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ariela Miriam Migdal American Civil Liberties Union Womens Rights Project 125 Broad Street, 18th Floor New York, NY 10004 212−519−7861 Email: amigdal@aclu.org TERMINATED: 07/21/2015 ATTORNEY TO BE NOTICED
Christine Patricia Sun ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 (415) 621−2493 Fax: (415) 255−8437 Email: csun@aclunc.org TERMINATED: 09/19/2019
Elizabeth O. Gill American Civil Liberties Union of No. Calif. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: egill@aclunc.org ATTORNEY TO BE NOTICED
Gillian L. Thomas 125 Broad Street 18th Floor New York, NY 10004 212−284−7356 Email: gthomas@aclu.org ATTORNEY TO BE NOTICED
Lenora Michelle Lapidus American Civil Liberties Union Womens Rights Project 125 Broad Street, 18th Floor New York, NY 10004 212−549−2668

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 2 of 25

Plaintiff
Jennifer Hunt TERMINATED: 12/18/2017

Email: llapidus@aclu.org ATTORNEY TO BE NOTICED
Margaret Campbell Crosby American Civil Liberties Union of Northe 39 Drumm Street San Francisco, CA 94111 415/621−2493 Fax: 415/255−8437 Email: mcrosby@aclunc.org TERMINATED: 04/27/2015
Rosemarie Theresa Ring Munger, Tolles & Olson LLP 560 Mission St 27th Floor San Francisco, CA 95105−2907 415−512−4000 Fax: 415−512−4700 Email: rose.ring@mto.com ATTORNEY TO BE NOTICED
Shilpi Agarwal ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 (415) 621−2493 Fax: (415) 255−1478 Email: sagarwal@aclunc.org ATTORNEY TO BE NOTICED
Steven McCall Perry Munger Tolles & Olson LLP 355 South Grand Avenue 35th Floor Los Angeles, CA 90071−1560 213−683−9100 Fax: 213−687−3702 Email: steven.perry@mto.com ATTORNEY TO BE NOTICED
represented by Rosemarie T Ring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rosemarie Theresa Ring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ariela Miriam Migdal (See above for address) TERMINATED: 07/21/2015 ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/19/2019
Elizabeth O. Gill (See above for address) ATTORNEY TO BE NOTICED

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 3 of 25

Plaintiff
Alexandra Zoe Bedell TERMINATED: 12/18/2017

Gillian L. Thomas (See above for address) ATTORNEY TO BE NOTICED
Lenora Michelle Lapidus (See above for address) ATTORNEY TO BE NOTICED
Margaret Campbell Crosby (See above for address) TERMINATED: 04/27/2015
Shilpi Agarwal (See above for address) ATTORNEY TO BE NOTICED
Steven McCall Perry (See above for address) ATTORNEY TO BE NOTICED
represented by Rosemarie T Ring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rosemarie Theresa Ring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ariela Miriam Migdal (See above for address) TERMINATED: 07/21/2015 ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/19/2019
Elizabeth O. Gill (See above for address) ATTORNEY TO BE NOTICED
Gillian L. Thomas (See above for address) ATTORNEY TO BE NOTICED
Lenora Michelle Lapidus (See above for address) ATTORNEY TO BE NOTICED
Margaret Campbell Crosby (See above for address) TERMINATED: 04/27/2015
Shilpi Agarwal (See above for address) ATTORNEY TO BE NOTICED
Steven McCall Perry (See above for address) ATTORNEY TO BE NOTICED

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 4 of 25

Plaintiff Colleen Farrell TERMINATED: 12/18/2017
Plaintiff Service Women's Action Network

represented by Rosemarie T Ring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rosemarie Theresa Ring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ariela Miriam Migdal (See above for address) TERMINATED: 07/21/2015 ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/19/2019
Elizabeth O. Gill (See above for address) ATTORNEY TO BE NOTICED
Gillian L. Thomas (See above for address) ATTORNEY TO BE NOTICED
Lenora Michelle Lapidus (See above for address) ATTORNEY TO BE NOTICED
Margaret Campbell Crosby (See above for address) TERMINATED: 04/27/2015
Shilpi Agarwal (See above for address) ATTORNEY TO BE NOTICED
Steven McCall Perry (See above for address) ATTORNEY TO BE NOTICED
Zoe Bedell Munger Tolles Olson 1155 F Street NW, 7th FL Washington, DC 20004 202−220−1129 Email: zoe.bedell@mto.com ATTORNEY TO BE NOTICED
represented by Rosemarie T Ring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rosemarie Theresa Ring (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 5 of 25
Ariela Miriam Migdal (See above for address) TERMINATED: 07/21/2015 ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/19/2019
Elizabeth O. Gill (See above for address) ATTORNEY TO BE NOTICED
Gillian L. Thomas (See above for address) ATTORNEY TO BE NOTICED
Lenora Michelle Lapidus (See above for address) ATTORNEY TO BE NOTICED
Margaret Campbell Crosby (See above for address) TERMINATED: 04/27/2015
Shilpi Agarwal (See above for address) ATTORNEY TO BE NOTICED
Steven McCall Perry (See above for address) ATTORNEY TO BE NOTICED
Zoe Bedell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Leon Panetta Secretary of Defense TERMINATED: 10/31/2013

represented by Andrew Evan Carmichael U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW, Room 12108 Washington, DC 20530 202−514−3346 Email: andrew.e.carmichael@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline Lewis Wolverton US Dept of Justice Civil Division, Federal Programs Branch PO Box 883 Washington, DC 20530 (202) 514−0265 Fax: (202)616−8470 Email: caroline.lewis−wolverton@usdoj.gov TERMINATED: 06/26/2017 LEAD ATTORNEY
Rebecca Cutri−Kohart U.S. Department of Justice

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 6 of 25

Defendant Chuck Hagel Secretary of Defense TERMINATED: 12/18/2017
Defendant Ashton Carter TERMINATED: 12/18/2017
Defendant Secretary of Defense James N Mattis

Federal Programs Branch 1100 L Street NW Washington, DC 20530 202−514−0265 Email: rebecca.cutri−kohart@usdoj.gov ATTORNEY TO BE NOTICED
represented by Andrew Evan Carmichael (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline Lewis Wolverton (See above for address) TERMINATED: 06/26/2017 LEAD ATTORNEY
Rebecca Cutri−Kohart (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Evan Carmichael (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline Lewis Wolverton (See above for address) TERMINATED: 06/26/2017 LEAD ATTORNEY
Rebecca Cutri−Kohart (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Evan Carmichael (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Fraser Knapp United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20005 202−305−8613 Fax: 202−616−8470 Email: michael.knapp@usdoj.gov TERMINATED: 08/20/2019 ATTORNEY TO BE NOTICED
Rebecca Cutri−Kohart (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/27/2012

# Docket Text
1 COMPLAINT; summons issued against Leon Panetta (Filing fee $ 350, receipt number 34611080849). Filed by Mary Jennings Hegar, Colleen Farrell, Alexandra Zoe

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 7 of 25

11/27/2012 11/27/2012 01/17/2013
01/17/2013
01/23/2013 01/23/2013 01/23/2013 01/29/2013 02/07/2013 02/08/2013
06/07/2013 06/07/2013 06/11/2013
09/09/2013

Bedell, Service Women's Action Network, Jennifer Hunt. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(slh, COURT STAFF) (Filed on 11/27/2012) (Entered: 11/28/2012)
2 Certificate of Interested Entities or Persons by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (slh, COURT STAFF) (Filed on 11/27/2012) (Entered: 11/28/2012)
3 ADR SCHEDULING ORDER: Case Management Statement due by 2/21/2013. Case Management Conference set for 2/28/2013 09:00 AM in Courtroom 5, 17th Floor, San Francisco. (Attachments: # 1 Standing Order)(slh, COURT STAFF) (Filed on 11/27/2012) (Entered: 11/28/2012)
4 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971−7414946.) filed by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (Attachments: # 1 Certificate/Proof of Service)(Lapidus, Lenora) (Filed on 1/17/2013) (Entered: 01/17/2013)
5 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971−7414989.) filed by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (Attachments: # 1 Certificate/Proof of Service)(Migdal, Ariela) (Filed on 1/17/2013) (Entered: 01/17/2013)
6 CERTIFICATE OF SERVICE by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network Regarding Summons, Complaint and Initiating Case Documents (Attachments: # 1 Exhibit 1−3)(Ring, Rosemarie) (Filed on 1/23/2013) (Entered: 01/23/2013)
7 ORDER by Judge Edward M. Chen granting 4 Motion for Pro Hac Vice (Lapidis) (bpf, COURT STAFF) (Filed on 1/23/2013) Modified on 1/24/2013 (slh, COURT STAFF). (Entered: 01/23/2013)
8 ORDER by Judge Edward M. Chen granting 5 Motion for Pro Hac Vice (Migdal) (bpf, COURT STAFF) (Filed on 1/23/2013) (Entered: 01/23/2013)
9 STIPULATION to Extend Time to Respond to Complaint filed by Leon Panetta. (Wolverton, Caroline) (Filed on 1/29/2013) (Entered: 01/29/2013)
10 STIPULATION WITH PROPOSED ORDER re 3 ADR Scheduling Order filed by Leon Panetta. (Wolverton, Caroline) (Filed on 2/7/2013) (Entered: 02/07/2013)
11 STIPULATION AND ORDER re 10 ADR Scheduling Order filed by Leon Panetta Case Management Statement due by 7/11/2013. Case Management Conference reset for 7/18/2013 09:00 AM in Courtroom 5, 17th Floor, San Francisco.. Signed by Judge Edward M. Chen on 2/8/13. (bpf, COURT STAFF) (Filed on 2/8/2013) (Entered: 02/08/2013)
12 STIPULATION re 1 Complaint, to Extend Time to Respond filed by Leon Panetta. (Wolverton, Caroline) (Filed on 6/7/2013) (Entered: 06/07/2013)
13 STIPULATION WITH PROPOSED ORDER re 11 Stipulation and Order, Set Deadlines/Hearings,, to continue Initial Case Management Conference Set for July 18, 2013 and ADR Deadlines filed by Leon Panetta. (Wolverton, Caroline) (Filed on 6/7/2013) (Entered: 06/07/2013)
14 STIPULATION AND ORDER re 13 , 11 to continue Initial Case Management Conference Set for July 18, 2013 and ADR Deadlines filed by Leon Panetta Case Management Statement due by 9/26/2013. Case Management Conference set for 10/3/2013 09:00 AM in Courtroom 5, 17th Floor, San Francisco.. Signed by Judge Edward M. Chen on 6/11/13. (bpf, COURT STAFF) (Filed on 6/11/2013) (Entered: 06/11/2013)
15 CLERKS NOTICE Case Management Statement due by 10/1/2013. Case Management Conference reset for 10/8/2013 02:30 PM in Courtroom 5, 17th Floor, San Francisco. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE.(bpf, COURT STAFF) (Filed on 9/9/2013)

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 8 of 25

09/13/2013 09/18/2013
10/31/2013 12/19/2013 12/19/2013 01/09/2014 01/21/2014 01/21/2014
01/23/2014 01/23/2014 01/23/2014
02/04/2014

(Entered: 09/09/2013)
16 STIPULATION WITH PROPOSED ORDER to Continue Initial Case Management Conference Set for October 8, 2013 and ADR Deadlines filed by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (Ring, Rosemarie) (Filed on 9/13/2013) (Entered: 09/13/2013)
17 STIPULATION AND ORDER re 16 to Continue Initial Case Management Conference Set for October 8, 2013 and ADR Deadlines filed by Service Women's Action Network, Colleen Farrell, Jennifer Hunt, Mary Jennings Hegar, Alexandra Zoe Bedell Case Management Statement due by 3/13/2014. Case Management Conference set for 3/20/2014 09:00 AM in Courtroom 5, 17th Floor, San Francisco.. Signed by Judge Edward M. Chen on 9/18/13. (bpf, COURT STAFF) (Filed on 9/18/2013) (Entered: 09/18/2013)
18 AMENDED COMPLAINT First Amended Complaint for Declatory and Injunctive Relief against Leon Panetta. Filed byMary Jennings Hegar, Colleen Farrell, Alexandra Zoe Bedell, Service Women's Action Network, Jennifer Hunt. (Ring, Rosemarie) (Filed on 10/31/2013) (Entered: 10/31/2013)
19 MOTION to Dismiss for Lack of Jurisdiction filed by Chuck Hagel, Leon Panetta. Motion Hearing set for 3/13/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 1/31/2014. Replies due by 2/14/2014. (Attachments: # 1 Proposed Order)(Wolverton, Caroline) (Filed on 12/19/2013) (Entered: 12/19/2013)
20 Declaration of Juliet M. Beyler in Support of 19 MOTION to Dismiss for Lack of Jurisdiction filed byChuck Hagel, Leon Panetta. (Attachments: # 1 Attachment 1, part 1, # 2 Attachment 1, part 2, # 3 Attachment 1, part 3, # 4 Attachment 1, part 4, # 5 Attachment 2)(Related document(s) 19 ) (Wolverton, Caroline) (Filed on 12/19/2013) (Entered: 12/19/2013)
21 STIPULATION WITH PROPOSED ORDER re 19 MOTION to Dismiss for Lack of Jurisdiction , 17 Stipulation and Order, Set Deadlines/Hearings,, filed by Chuck Hagel. (Wolverton, Caroline) (Filed on 1/9/2014) Modified on 1/23/2014 (bpf, COURT STAFF). (Replaced by #21; granted #24) (Entered: 01/09/2014)
22 STIPULATION WITH PROPOSED ORDER re 21 STIPULATION WITH PROPOSED ORDER re 19 MOTION to Dismiss for Lack of Jurisdiction , 17 Stipulation and Order, Set Deadlines/Hearings,, filed by Chuck Hagel. (Wolverton, Caroline) (Filed on 1/21/2014) (Entered: 01/21/2014)
23 MOTION for Protective Order to Stay Discovery Pending Ruling on Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction filed by Chuck Hagel. Motion Hearing set for 2/27/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Responses due by 2/4/2014. Replies due by 2/11/2014. (Attachments: # 1 Proposed Order)(Wolverton, Caroline) (Filed on 1/21/2014) (Entered: 01/21/2014)
24 STIPULATION AND ORDER re 22 re 19 MOTION to Dismiss for Lack of Jurisdiction , 17 Stipulation and Order filed by Chuck Hagel. Signed by Judge Edward M. Chen on 1/23/14. (bpf, COURT STAFF) (Filed on 1/23/2014) (Entered: 01/23/2014)
Set/Reset Deadlines:, Set/Reset Hearing Case Management Statement due by 8/21/2014. Case Management Conference set for 8/28/2014 09:00 AM in Courtroom 5, 17th Floor, San Francisco. (bpf, COURT STAFF) (Filed on 1/23/2014) (Entered: 01/23/2014)
Set/Reset Deadlines as to 19 MOTION to Dismiss for Lack of Jurisdiction. Responses due by 4/14/2014. Replies due by 4/28/2014. Motion Hearing set for 5/22/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. Motion for protective order #23 Hearing set for 2/27/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen. (bpf, COURT STAFF) (Filed on 1/23/2014) (Entered: 01/23/2014)
25 RESPONSE (re 23 MOTION for Protective Order to Stay Discovery Pending Ruling on Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction ) Plaintiffs'

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 9 of 25

02/04/2014 02/04/2014 02/11/2014 02/27/2014 03/04/2014 03/04/2014 03/05/2014
03/25/2014 04/08/2014 04/10/2014
05/01/2014

Opposition to Defendant's Motion for Protective Order filed byAlexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (Ring, Rosemarie) (Filed on 2/4/2014) (Entered: 02/04/2014)
26 Declaration of Rosemarie T. Ring in Support of 25 Opposition/Response to Motion, filed byAlexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (Related document(s) 25 ) (Ring, Rosemarie) (Filed on 2/4/2014) (Entered: 02/04/2014)
27 Declaration of Mari Overbeck in Support of 25 Opposition/Response to Motion, filed byAlexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Related document(s) 25 ) (Ring, Rosemarie) (Filed on 2/4/2014) (Entered: 02/04/2014)
28 REPLY (re 23 MOTION for Protective Order to Stay Discovery Pending Ruling on Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction ) filed byChuck Hagel. (Wolverton, Caroline) (Filed on 2/11/2014) (Entered: 02/11/2014)
29 Minute Entry: Motion Hearing held on 2/27/2014 before Judge Edward M. Chen (Date Filed: 2/27/2014) re 23 MOTION for Protective Order to Stay Discovery Pending Ruling on Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction filed by Chuck Hagel. Deferred ruling. (Court Reporter Lydia Zinn.) (bpf, COURT STAFF) (Date Filed: 2/27/2014) (Entered: 02/27/2014)
30 TRANSCRIPT ORDER by Chuck Hagel for Court Reporter Lydia Zinn. (Wolverton, Caroline) (Filed on 3/4/2014) (Entered: 03/04/2014)
31 TRANSCRIPT ORDER by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network for Court Reporter Lydia Zinn. (Ring, Rosemarie) (Filed on 3/4/2014) (Entered: 03/04/2014)
32 Transcript of Proceedings held on 2/27/2014, before Judge Edward M. Chen. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 6/3/2014. (Related documents(s) 31 , 30 ) (Zinn, Lydia) (Filed on 3/5/2014) (Entered: 03/05/2014)
33 CLERKS NOTICE resetting CMC from 9:00 to 9:30 a.m. on 8/28/14. Case Management Conference set for 8/28/2014 09:30 AM in Courtroom 5, 17th Floor, San Francisco. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE.(bpf, COURT STAFF) (Filed on 3/25/2014) (Entered: 03/25/2014)
34 STIPULATION WITH PROPOSED ORDER Revised Stipulation and [Proposed] Order Setting Briefing Schedule and Hearing Dates and Continuing Initial Case Status Conference filed by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (Ring, Rosemarie) (Filed on 4/8/2014) (Entered: 04/08/2014)
35 STIPULATION AND ORDER re 34 STIPULATION WITH PROPOSED ORDER Revised Stipulation and [Proposed] Order Setting Briefing Schedule and Hearing Dates and Continuing Initial Case Status Conference filed by Service Women's Action Network, Case Management Statement due by 8/21/2014. Case Management Conference set for 9/4/2014 09:30 AM in Courtroom 5, 17th Floor, San Francisco. Responses due by 5/5/2014. Replies due by 5/19/2014. Motion Hearing set for 6/26/2014 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 4/10/14. (bpf, COURT STAFF) (Filed on 4/10/2014) (Entered: 04/10/2014)
36 STIPULATION WITH PROPOSED ORDER Regarding a Limited Stay of This Matter filed by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt,

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 10 of 25

05/05/2014
05/05/2014 11/06/2014 11/14/2014 11/14/2014 11/17/2014 11/20/2014 12/18/2014
01/27/2015 02/24/2015 02/25/2015

Service Women's Action Network. (Ring, Rosemarie) (Filed on 5/1/2014) (Entered: 05/01/2014)
37 STIPULATION AND ORDER re 36 Regarding a Limited Stay of This Matter filed by Service Women's Action Network, Colleen Farrell, Jennifer Hunt, Mary Jennings Hegar, Alexandra Zoe Bedell, Motions terminated: 36 STIPULATION WITH PROPOSED ORDER Regarding a Limited Stay of This Matter filed by Service Women's Action Network, Colleen Farrell, Jennifer Hunt, Mary Jennings Hegar, Alexandra Zoe Bedell, 23 MOTION for Protective Order to Stay Discovery Pending Ruling on Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction filed by Chuck Hagel, 19 MOTION to Dismiss for Lack of Jurisdiction filed by Leon Panetta, Chuck Hagel. CMC reset from 9/4/14 to 11/13/14 at 9:30 a.m. Signed by Judge Edward M. Chen on 5/5/14. (bpf, COURT STAFF) (Filed on 5/5/2014) (Entered: 05/05/2014)
Set/Reset Deadlines:, Set/Reset Hearing re 37 Stipulation and Order. Case Management Statement due by 11/6/2014. Case Management Conference set for 11/13/2014 09:30 AM in Courtroom 5, 17th Floor, San Francisco. (bpf, COURT STAFF) (Filed on 5/5/2014) (Entered: 05/05/2014)
38 CASE MANAGEMENT STATEMENT (JOINT) filed by Chuck Hagel. (Wolverton, Caroline) (Filed on 11/6/2014) (Entered: 11/06/2014)
39 Minute Entry for proceedings held before Hon. Edward M. Chen: Initial Case Management Conference held on 11/13/2014. Case Management Statement due by 3/12/2015. Further Case Management Conference set for 3/19/2015 10:30 AM in Courtroom 5, 17th Floor, San Francisco. FTR Time 9;37−9:59. (Date Filed: 11/14/2014)(bpf, COURT STAFF) (Entered: 11/14/2014)
Case Stayed (bpf, COURT STAFF) (Filed on 11/14/2014) (Entered: 11/14/2014)
40 ** CORRECTION: The hearing date is 11/13/14 (not 11/14/14). ** TRANSCRIPT ORDER by Chuck Hagel for Court Reporter FTR − San Francisco. (Wolverton, Caroline) (Filed on 11/17/2014) Modified on 11/17/2014 (djc, COURT STAFF). (Entered: 11/17/2014)
41 TRANSCRIPT ORDER by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network for Court Reporter FTR − San Francisco. (Ring, Rosemarie) (Filed on 11/20/2014) (Entered: 11/20/2014)
42 TRANSCRIPT OF PROCEEDINGS OF THE OFFICIAL ELECTRONIC SOUND RECORDING − FTR 9:37 a.m. − 9:59 a.m. held on 11/13/14, before Judge Edward M. Chen. Court Reporter/Transcriber Jill R. Bryce/Bryce Reporting Services, Telephone number (510)828−9404, Email: Info@brycereporting.com. Tape Number: FTR 9:37−9:59. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 40 Transcript Order ) Release of Transcript Restriction set for 3/18/2015. (Related documents(s) 40 ) (Bryce, Kelly) (Filed on 12/18/2014) (Entered: 12/18/2014)
43 CLERK'S NOTICE Case Management Statement due by 3/26/2015. Further Case Management Conference reset from 3/19/2015 to 4/2/2015 10:30 AM in Courtroom 5, 17th Floor, San Francisco. THIS IS A TEXT ONLY DOCKET ENTRY; THERE IS NO DOCUMENT ASSOCIATED WITH THIS NOTICE.(bpf, COURT STAFF) (Filed on 1/27/2015) (Entered: 01/27/2015)
44 STIPULATION WITH PROPOSED ORDER re 43 Clerk's Notice, seeking continuance of further CMC and updated joint CMC statement filed by Ashton Carter. (Attachments: # 1 Declaration of Caroline Lewis Wolverton)(Wolverton, Caroline) (Filed on 2/24/2015) (Entered: 02/24/2015)
45 STIPULATION AND ORDER re 44 STIPULATION WITH PROPOSED ORDER re 43 Clerk's Notice, seeking continuance of further CMC and updated joint CMC statement filed by Ashton Carter Case Management Statement due by

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 11 of 25

04/09/2015
04/14/2015 04/17/2015 04/27/2015 04/27/2015
04/28/2015 04/30/2015 05/05/2015
07/21/2015 07/23/2015
07/23/2015 07/24/2015 07/31/2015

4/9/2015. Further Case Management Conference set for 4/23/2015 10:30 AM in Courtroom 5, 17th Floor, San Francisco.. Signed by Judge Edward M. Chen on 2/25/15. (bpf, COURT STAFF) (Filed on 2/25/2015) (Entered: 02/25/2015)
46 STIPULATION WITH PROPOSED ORDER re 45 Stipulation and Order,, Set Deadlines/Hearings, Stipulated Request and [Proposed] Order for continuance of Updated CMC Statement filed by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (Attachments: # 1 Declaration of Caroline Lewis Wolverton)(Ring, Rosemarie) (Filed on 4/9/2015) (Entered: 04/09/2015)
47 CASE MANAGEMENT STATEMENT Joint Case Management Statement filed by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (Ring, Rosemarie) (Filed on 4/14/2015) (Entered: 04/14/2015)
48 ORDER by Judge Edward M. Chen granting 46 Stipulation to extend time to file CMC statement (bpf, COURT STAFF) (Filed on 4/14/2015) (Entered: 04/17/2015)
49 NOTICE of Substitution of Counsel by Rosemarie Theresa Ring, Esq (Ring, Rosemarie) (Filed on 4/27/2015) (Entered: 04/27/2015)
50 Minute Entry for proceedings held before Hon. Edward M. Chen: Further Case Management Conference held on 4/23/2015. Case Management Statement due by 7/23/2015. Further Case Management Conference set for 7/30/2015 10:30 AM in Courtroom 5, 17th Floor, San Francisco. FTR Time 10:31−10:56. (bpf, COURT STAFF) (Date Filed: 4/27/2015) (Entered: 04/27/2015)
51 TRANSCRIPT ORDER by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network for Court Reporter FTR − San Francisco. (Ring, Rosemarie) (Filed on 4/28/2015) (Entered: 04/28/2015)
52 TRANSCRIPT ORDER by Ashton Carter for Court Reporter FTR − San Francisco. (Wolverton, Caroline) (Filed on 4/30/2015) (Entered: 04/30/2015)
53 Transcript of Proceedings of the official sound recording held on 04/23/15, before Judge Edward M. Chen. FTR/Transcriber Echo Reporting, Inc., Telephone number (858) 453−7590.;echoreporting@yahoo.com. Tape Number: FTR 10:31 − 10:56. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 51 Transcript Order ) Redaction Request due 5/26/2015. Redacted Transcript Deadline set for 6/5/2015. Release of Transcript Restriction set for 8/3/2015. (Related documents(s) 51 ) (tgb, COURT STAFF) (Filed on 5/5/2015) (Entered: 05/05/2015)
54 NOTICE of Change In Counsel by Ariela Miriam Migdal (Migdal, Ariela) (Filed on 7/21/2015) (Entered: 07/21/2015)
55 CLERK'S NOTICE resetting Further CMC from 10:30 a.m. to 9:30 a.m. on 7/30/2015 in Courtroom 5, 17th Floor, San Francisco. 7/30/2015 09:30 AM in Courtroom 5, 17th Floor, San Francisco. Case Management Statement due by 7/23/2015.. (This is a text−only entry generated by the court. There is no document associated with this entry.) (bpf, COURT STAFF) (Filed on 7/23/2015) (Entered: 07/23/2015)
56 JOINT CASE MANAGEMENT STATEMENT filed by Mary Jennings Hegar. (Ring, Rosemarie) (Filed on 7/23/2015) (Entered: 07/23/2015)
57 Declaration of Juliet M. Beyler in Support of 56 Joint Case Management Statement filed byAlexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (Related document(s) 56 ) (Ring, Rosemarie) (Filed on 7/24/2015) (Entered: 07/24/2015)
58 SEE AMENDED MINUTE ORDER (Docket #60) No reporter, just FTR recording. Minute Entry for proceedings held before Edward M. Chen: Further Case Management Conference held on 7/30/2015. Case Management Statement due by 10/1/2015. Further Case Management Conference set for 10/8/2015 10:30

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 12 of 25

08/04/2015 08/04/2015 08/17/2015 08/25/2015
09/10/2015 09/14/2015 11/05/2015 11/13/2015 11/20/2015 12/03/2015 12/16/2015

AM in Courtroom 5, 17th Floor, San Francisco.FTR Time 9:45−10:23. (bpf, COURT STAFF) (Date Filed: 7/31/2015) Modified on 8/4/2015 (Entered: 07/31/2015)
59 TRANSCRIPT ORDER by Ashton Carter for Court Reporter FTR − San Francisco. (Wolverton, Caroline) (Filed on 8/4/2015) (Entered: 08/04/2015)
60 Amended Minute Entry for proceedings held before Edward M. Chen: Further Case Management Conference held on 7/30/2015. Further CMC set for 10/8/15 at 10:30 a.m. No reporter.FTR Time 9:45−10:23. (bpf, COURT STAFF) (Date Filed: 8/4/2015) (Entered: 08/04/2015)
61 TRANSCRIPT ORDER by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network for Court Reporter FTR − San Francisco. (Ring, Rosemarie) (Filed on 8/17/2015) (Entered: 08/17/2015)
62 Transcript of Proceedings held on 07/30/2015, before Judge Edward M. Chen. Court Reporter/Transcriber Leo T. Mankiewicz, CSR, RMR, CRR, telephone number (415) 722−7045; email: leomank@gmail.com. FTR 9:45 a.m. − 10:23 a.m. = 38 minutes. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 59 Transcript Order, 61 Transcript Order ) Redaction Request due 9/15/2015. Redacted Transcript Deadline set for 9/25/2015. Release of Transcript Restriction set for 11/23/2015. (Related documents(s) 59 , 61 ) (Mankiewicz, Leo) (Filed on 8/25/2015) (Entered: 08/25/2015)
63 STIPULATION WITH PROPOSED ORDER re 60 Case Management Conference − Further filed by Ashton Carter. (Wolverton, Caroline) (Filed on 9/10/2015) (Entered: 09/10/2015)
64 STIPULATION AND ORDER resetting CMC. Case Management Statement due by 11/10/2015. Further Case Management Conference set for 11/19/2015 10:30 AM in Courtroom 5, 17th Floor, San Francisco. Signed by Judge Edward M. Chen on 9/14/15. (bpf, COURT STAFF) (Filed on 9/14/2015) (Entered: 09/14/2015)
65 CLERK'S NOTICE resetting Further Case Management Conference from 11/19/2015 to Friday 11/20/2015 10:30 AM in Courtroom 5, 17th Floor, San Francisco. Case Management Statement due by 11/13/2015. (This is a text−only entry generated by the court. There is no document associated with this entry.) (bpf, COURT STAFF) (Filed on 11/5/2015) (Entered: 11/05/2015)
66 CASE MANAGEMENT STATEMENT Joint Case Management Statement filed by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (Ring, Rosemarie) (Filed on 11/13/2015) (Entered: 11/13/2015)
67 Minute Entry for proceedings held before Edward M. Chen: Further Case Management Conference held on 11/20/2015. Case Management Statement due by 2/11/2016. Further Case Management Conference set for 2/18/2016 10:30 AM in Courtroom 5, 17th Floor, San Francisco.FTR Time 10:36−10:54. (bpf, COURT STAFF) (Date Filed: 11/20/2015) (Entered: 11/20/2015)
68 TRANSCRIPT ORDER by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network for Court Reporter FTR − San Francisco. (Ring, Rosemarie) (Filed on 12/3/2015) (Entered: 12/03/2015)
69 Transcript of Proceedings of the official sound recording held on 11/20/15, before Judge Edward M. Chen. FTR/Transcriber Echo Reporting, Inc., telephone number (858) 453−7590.;echoreporting@yahoo.com. Tape Number: FTR 10:36 − 10:54. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 13 of 25

12/22/2015 02/04/2016 02/09/2016 03/03/2016 03/07/2016
04/28/2016 05/05/2016 05/12/2016 06/06/2016 06/12/2016
08/03/2016 08/16/2016

Redaction, if required, is due no later than 5 business days from date of this filing. (Re 68 Transcript Order ) Redaction Request due 1/6/2016. Redacted Transcript Deadline set for 1/19/2016. Release of Transcript Restriction set for 3/15/2016. (Related documents(s) 68 ) (tgb, COURT STAFF) (Filed on 12/16/2015) (Entered: 12/16/2015)
70 TRANSCRIPT ORDER by Ashton Carter for Court Reporter FTR − San Francisco. (Wolverton, Caroline) (Filed on 12/22/2015) (Entered: 12/22/2015)
71 STIPULATION WITH PROPOSED ORDER re 67 Case Management Conference − Further,, Set Deadlines/Hearings, for Continuance filed by Ashton Carter. (Attachments: # 1 Declaration of Caroline Lewis Wolverton)(Wolverton, Caroline) (Filed on 2/4/2016) (Entered: 02/04/2016)
72 STIPULATION AND ORDER re 71 For Continuance filed by Ashton Carter Case Management Statement due by 3/3/2016. Further Case Management Conference set for 3/10/2016 10:30 AM in Courtroom 5, 17th Floor, San Francisco. Signed by Judge Edward M. Chen on 2/9/16. (bpf, COURT STAFF) (Filed on 2/9/2016) (Entered: 02/09/2016)
73 STIPULATION WITH PROPOSED ORDER re 72 Stipulation and Order,, Set Deadlines/Hearings, filed by Ashton Carter. (Attachments: # 1 Declaration of Caroline Lewis Wolverton)(Wolverton, Caroline) (Filed on 3/3/2016) (Entered: 03/03/2016)
74 STIPULATION AND ORDER re 73 STIPULATION WITH PROPOSED ORDER re 72 Stipulation and Order filed by Ashton Carter. Case Management Statement due by 4/28/2016. Further Case Management Conference set for 5/5/2016 10:30 AM in Courtroom 5, 17th Floor, San Francisco. Signed by Judge Edward M. Chen on 3/6/16. (bpfS, COURT STAFF) (Filed on 3/7/2016) (Entered: 03/07/2016)
75 CASE MANAGEMENT STATEMENT Joint filed by Ashton Carter. (Wolverton, Caroline) (Filed on 4/28/2016) (Entered: 04/28/2016)
76 Minute Entry for proceedings held before Edward M. Chen: Further Case Management Conference held on 5/5/2016. Case Management Statement due by 8/18/2016. Further Case Management Conference set for 8/25/2016 10:30 AM in Courtroom 5, 17th Floor, San Francisco.FTR Time 10:34−11:06. (bpf, COURT STAFF) (Date Filed: 5/5/2016) (Entered: 05/05/2016)
77 TRANSCRIPT ORDER for proceedings held on 05/05/2016 before Edward M. Chen by Ashton Carter, for Court Reporter FTR − San Francisco. (Wolverton, Caroline) (Filed on 5/12/2016) (Entered: 05/12/2016)
78 TRANSCRIPT ORDER for proceedings held on 05/05/2016 before Edward M. Chen by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network, for Court Reporter FTR − San Francisco. (Ring, Rosemarie) (Filed on 6/6/2016) (Entered: 06/06/2016)
79 Transcript of Proceedings held on May 5, 2016, before Judge Edward M. Chen. Court Reporter/Transcriber Joan Marie Columbini, CSR, telephone number joan.columbini.csr@gmail.com 510−367−3043. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 77 Transcript Order, 78 Transcript Order, ) Redaction Request due 7/5/2016. Redacted Transcript Deadline set for 7/13/2016. Release of Transcript Restriction set for 9/12/2016. (Related documents(s) 77 , 78 ) (Columbini, Joan) (Filed on 6/12/2016) (Entered: 06/12/2016)
80 CLERK'S NOTICE. Case Management Statement due by 8/19/2016. Further Case Management Conference reset from 8/25/2016 to Friday 8/26/2016 10:30 AM in Courtroom 5, 17th Floor, San Francisco. (This is a text−only entry generated by the court. There is no document associated with this entry.) (bpfS, COURT STAFF) (Filed on 8/3/2016) (Entered: 08/03/2016)
81 Unopposed REQUEST for Continuance of Case Management Conference and Updated CMC Statement; [PROPOSED] ORDER filed by Alexandra Zoe Bedell,

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 14 of 25

08/19/2016 08/19/2016 09/29/2016 10/03/2016 10/07/2016
10/07/2016 10/07/2016 10/17/2016
01/05/2017 01/10/2017 01/12/2017

Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (Ring, Rosemarie) (Filed on 8/16/2016) Modified on 8/17/2016 (slhS, COURT STAFF). (Entered: 08/16/2016)
82 ORDER by Judge Edward M. Chen granting 81 Motion to Continue Further CMC to 10/6/16 at 10:30 a.m. (bpfS, COURT STAFF) (Filed on 8/19/2016) (Entered: 08/19/2016)
Set/Reset Deadlines:, Set/Reset Hearing Case Management Statement due by 9/29/2016. Further Case Management Conference set for 10/6/2016 10:30 AM in Courtroom 5, 17th Floor, San Francisco. (bpfS, COURT STAFF) (Filed on 8/19/2016) (Entered: 08/19/2016)
83 CASE MANAGEMENT STATEMENT updated filed by Ashton Carter. (Attachments: # 1 Declaration of Lt. Col. Christine Rice, # 2 Declaration of Col. Jeffrey W. Fultz, # 3 Declaration of Stephen B. Wittle)(Wolverton, Caroline) (Filed on 9/29/2016) (Entered: 09/29/2016)
84 CASE MANAGEMENT STATEMENT CORRECTION OF DOCKET # 83 filed by Ashton Carter. (Attachments: # 1 Declaration of Lt. Col. Christine Rice, # 2 Declaration of Col. Jeffrey W. Fultz, # 3 Declaration of Stephen B. Wittle)(Wolverton, Caroline) (Filed on 10/3/2016) (Entered: 10/03/2016)
85 Minute Entry for proceedings held before Edward M. Chen: Further Case Management Conference held on 10/6/2016. Case Management Statement due by 1/5/2017. Further Case Management Conference set for 1/12/2017 10:30 AM in Courtroom 5, 17th Floor, San Francisco.FTR Time 11:13−11:37. (bpf, COURT STAFF) (Date Filed: 10/7/2016) Modified on 10/7/2016: Matter transcribed by Leo Mankiewicz. (rjdS, COURT STAFF). (Entered: 10/07/2016)
86 TRANSCRIPT ORDER for proceedings held on 10/06/2016 before Edward M. Chen by Ashton Carter, for Court Reporter FTR − San Francisco. (Wolverton, Caroline) (Filed on 10/7/2016) (Entered: 10/07/2016)
87 TRANSCRIPT ORDER for proceedings held on 10/06/16 before Edward M. Chen by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network, for Court Reporter FTR − San Francisco. (Ring, Rosemarie) (Filed on 10/7/2016) (Entered: 10/07/2016)
88 Transcript of Proceedings held on 10/06/2016, before Judge Edward M. Chen. Court Reporter/Transcriber Leo T. Mankiewicz, CSR, RMR, CRR, telephone number (415) 722−7045; email: leomank@gmail.com. FTR 11:13 a.m. − 11:37 a.m. = 24 minutes. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 86 Transcript Order ) Redaction Request due 11/7/2016. Redacted Transcript Deadline set for 11/17/2016. Release of Transcript Restriction set for 1/17/2017. (Related documents(s) 86 ) (Mankiewicz, Leo) (Filed on 10/17/2016) (Entered: 10/17/2016)
89 CASE MANAGEMENT STATEMENT filed by Ashton Carter. (Attachments: # 1 Declaration of Lt. Col. Christine Rice, # 2 Declaration of Col. Douglas Mayer, # 3 Declaration of Lawrence Coleman)(Wolverton, Caroline) (Filed on 1/5/2017) (Entered: 01/05/2017)
90 CLERK'S NOTICE. Further CMC remains set for 1/12/17 at 10:30 a.m. before Judge Edward M. Chen. (This is a text−only entry generated by the court. There is no document associated with this entry.) (bpfS, COURT STAFF) (Filed on 1/10/2017) (Entered: 01/10/2017)
91 Minute Entry for proceedings held before Edward M. Chen: Further Case Management Conference held on 1/12/2017. Case Management Statement due by 7/6/2017. Further Case Management Conference set for 7/13/2017 10:30 AM in Courtroom 5, 17th Floor, San Francisco. FTR Time: 10:37 − 11:04. Plaintiff Attorneys: Rosemarie Ring, Elizabeth Gill.

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 15 of 25

01/17/2017 01/17/2017 03/12/2017
06/26/2017 06/30/2017 06/30/2017 07/05/2017 09/14/2017 09/22/2017
09/26/2017 10/06/2017

Defendant Attorney: Caroline Wolverton. Attachment: Minute Order. (afmS, COURT STAFF) (Date Filed: 1/12/2017) Modified on 1/18/2017: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 01/13/2017)
92 TRANSCRIPT ORDER for proceedings held on 01/12/17 before Edward M. Chen by Ashton Carter, for Court Reporter FTR − San Francisco. (Wolverton, Caroline) (Filed on 1/17/2017) (Entered: 01/17/2017)
93 TRANSCRIPT ORDER for proceedings held on 01/12/2017 before Edward M. Chen by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network, for Court Reporter FTR − San Francisco. (Ring, Rosemarie) (Filed on 1/17/2017) (Entered: 01/17/2017)
94 Transcript of Proceedings held on January 12, 2017, before Judge Edward M. Chen. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number joan.columbini.csr@gmail.com (510)367−3043. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 93 Transcript Order, 92 Transcript Order ) Redaction Request due 4/3/2017. Redacted Transcript Deadline set for 4/12/2017. Release of Transcript Restriction set for 6/12/2017. (Related documents(s) 93 , 92 ) (Columbini, Joan) (Filed on 3/12/2017) (Entered: 03/12/2017)
95 NOTICE of Substitution of Counsel by Andrew Evan Carmichael (Carmichael, Andrew) (Filed on 6/26/2017) (Entered: 06/26/2017)
96 CLERK'S NOTICE. Further Case Management Conference reset from 7/13/2017 to 7/11/2017 10:30 AM in Courtroom 5, 17th Floor, San Francisco. Case Management Statement due by 7/5/2017. (This is a text−only entry generated by the court. There is no document associated with this entry.) (bpfS, COURT STAFF) (Filed on 6/30/2017) (Entered: 06/30/2017)
97 STIPULATION WITH PROPOSED ORDER re 91 Case Management Conference − Further,,, Set Deadlines/Hearings,, filed by Ashton Carter, Chuck Hagel, Leon Panetta. (Attachments: # 1 Declaration of Andrew E Carmichael)(Carmichael, Andrew) (Filed on 6/30/2017) (Entered: 06/30/2017)
98 STIPULATION AND ORDER resetting CMC. Case Management Statement due by 9/14/2017. Further Case Management Conference set for 9/21/2017 10:30 AM in Courtroom 5, 17th Floor, San Francisco. Signed by Judge Edward M. Chen on 7/5/17. (bpfS, COURT STAFF) (Filed on 7/5/2017) (Entered: 07/05/2017)
99 JOINT CASE MANAGEMENT STATEMENT filed by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (Attachments: # 1 Declaration Attachment 1 − Kurta, # 2 Declaration Attachment 2 − Merrcer, # 3 Declaration Attachment 3 − Mayer, # 4 Declaration Attachment 4− Haring)(Perry, Steven) (Filed on 9/14/2017) (Entered: 09/14/2017)
100 Minute Entry for proceedings held before Edward M. Chen: Further Case Management Conference held on 9/21/2017. Case Management Statement due by 3/15/2018. Further Case Management Conference set for 3/22/2018 10:30 AM in Courtroom 5, 17th Floor, San Francisco. Total Time in Court: 16 minutes. Court Reporter: Rhonda Aquilina. (bpfS, COURT STAFF) (Date Filed: 9/22/2017) (Entered: 09/22/2017)
101 TRANSCRIPT ORDER for proceedings held on 09/21/2017 before Judge Edward M. Chen by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network, for Court Reporter Rhonda Aquilina. (Ring, Rosemarie) (Filed on 9/26/2017) (Entered: 09/26/2017)
102 Transcript of Proceedings held on 09/21/2017, before Judge Edward M. Chen. Court Reporter Rhonda Aquilina, rhondaaquilina@aol.com. Per General Order No. 59 and

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 16 of 25

10/25/2017 10/27/2017 11/09/2017
11/20/2017 12/18/2017 12/19/2017 12/20/2017 02/16/2018
03/09/2018
03/29/2018 04/12/2018

Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 101 Transcript Order, ) Release of Transcript Restriction set for 1/4/2018. (Related documents(s) 101 ) (Aquilina, Rhonda) (Filed on 10/6/2017) (Entered: 10/06/2017)
103 TRANSCRIPT ORDER for proceedings held on 09/21/2017 before Judge Edward M. Chen by Ashton Carter, Chuck Hagel, Leon Panetta, for Court Reporter Rhonda Aquilina. (Carmichael, Andrew) (Filed on 10/25/2017) (Entered: 10/25/2017)
104 JOINT PROPOSED SCHEDULE for the Filing of a Second Amended Complaint and Defendant's Motion to Dismiss filed by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (Perry, Steven) (Filed on 10/27/2017) Modified on 10/30/2017 (slhS, COURT STAFF). (Entered: 10/27/2017)
105 ORDER re 104 Joint Case Management Statement, filed by Service Women's Action Network, Colleen Farrell, Jennifer Hunt, Mary Jennings Hegar, Alexandra Zoe Bedell. Case Management Statement due by 4/12/2018. Further Case Management Conference reset from 3/22/2018 to 4/19/2018 01:30 PM in Courtroom 5, 17th Floor, San Francisco. Motion to dismiss set for 4/19/2018 at 1:30 p.m. Signed by Judge Edward M. Chen on 11/9/17. (bpfS, COURT STAFF) (Filed on 11/9/2017) (Entered: 11/09/2017)
106 Statement in Response to the Court's Order of 9/22/17 re 100 Case Management Conference − Further by Ashton Carter, Chuck Hagel, Leon Panetta. (Carmichael, Andrew) (Filed on 11/20/2017) Modified on 11/21/2017 (slhS, COURT STAFF). (Entered: 11/20/2017)
107 SECOND AMENDED COMPLAINT against James N Mattis. Filed by Service Women's Action Network. (Ring, Rosemarie) (Filed on 12/18/2017) Modified on 12/19/2017 (slhS, COURT STAFF). (Entered: 12/18/2017)
108 MOTION & [PROPOSED] ORDER for leave to appear in Pro Hac Vice Gillian L. Thomas ( Filing fee $ 310, receipt number 0971−11961520.) filed by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network. (Thomas, Gillian) (Filed on 12/19/2017) Modified on 12/20/2017 (aaaS, COURT STAFF). (Entered: 12/19/2017)
109 ORDER by Judge Edward M. Chen granting 108 Motion for Pro Hac Vice. (bpf, COURT STAFF) (Filed on 12/20/2017) (Entered: 12/20/2017)
110 MOTION to Dismiss for Lack of Jurisdiction filed by Ashton Carter, Chuck Hagel, James N Mattis, Leon Panetta. Motion Hearing set for 4/19/2018 01:30 PM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. Responses due by 3/9/2018. Replies due by 3/29/2018. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Proposed Order)(Carmichael, Andrew) (Filed on 2/16/2018) (Entered: 02/16/2018)
111 OPPOSITION/RESPONSE (re 110 MOTION to Dismiss for Lack of Jurisdiction ) PLAINTIFF SERVICE WOMENS ACTION NETWORKS BRIEF IN OPPOSITION TO SECRETARY MATTISS MOTION TO DISMISS PLAINTIFFS SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF; DECLARATIONS OF ELLEN HARING AND LYDIA WATTS IN SUPPORT THEREOF filed byService Women's Action Network. (Attachments: # 1 Declaration of Ellen Haring, # 2 Declaration of Lydia C. Watts)(Ring, Rosemarie) (Filed on 3/9/2018) (Entered: 03/09/2018)
112 REPLY (re 110 MOTION to Dismiss for Lack of Jurisdiction ) filed byAshton Carter, Chuck Hagel, James N Mattis, Leon Panetta. (Attachments: # 1 Exhibit 1 (McKenzie Decl.), # 2 Exhibit 2 (Horan Decl.), # 3 Exhibit 3 (Ulses Decl.))(Carmichael, Andrew) (Filed on 3/29/2018) (Entered: 03/29/2018)
113 JOINT CASE MANAGEMENT STATEMENT filed by Service Women's Action Network. (Attachments: # 1 Declaration of Stephanie A. Barna, # 2 Declaration of

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 17 of 25

04/16/2018 04/19/2018
04/23/2018 04/26/2018
05/01/2018 05/11/2018 05/16/2018 05/30/2018 06/28/2018 06/29/2018 07/03/2018

LTC Naomi R. Mercer, # 3 Declaration of LTC Forrest C. Horan, # 4 Declaration of Col. Douglas S. Mayer)(Perry, Steven) (Filed on 4/12/2018) (Entered: 04/12/2018)
114 Statement re 111 Opposition/Response to Motion,, Plaintiff's Statement of Recent Decisions Relevant to Defendant's Motion to Dismiss, Submitted Pursuant to Civil L.R. 7−3(d)(2) by Service Women's Action Network. (Attachments: # 1 Karnoski v. Trump, # 2 Tiwari v. Mattis, # 3 National Coalition for Men v. Selective Service System)(Perry, Steven) (Filed on 4/16/2018) (Entered: 04/16/2018)
115 Minute Entry for proceedings held before Judge Edward M. Chen: Motion Hearing held on 4/19/2018 re 110 MOTION to Dismiss for Lack of Jurisdiction filed by James N Mattis, Leon Panetta, Ashton Carter, Chuck Hagel. Court took matter under submission. Case Management Statement due by 7/12/2018. Further Case Management Conference set for 7/19/2018 10:30 AM in San Francisco, Courtroom 05, 17th Floor. Total Time in Court: 1 hour 12 minutes. Court Reporter: Lydia Zinn. (bpf, COURT STAFF) (Date Filed: 4/19/2018) (Entered: 04/19/2018)
116 TRANSCRIPT ORDER for proceedings held on 04/19/2018 before Judge Edward M. Chen by Alexandra Zoe Bedell, Colleen Farrell, Mary Jennings Hegar, Jennifer Hunt, Service Women's Action Network, for Court Reporter Lydia Zinn. (Ring, Rosemarie) (Filed on 4/23/2018) (Entered: 04/23/2018)
117 Transcript of Proceedings held on 4/19/2018, before Judge Edward M. Chen. Court Reporter/Transcriber Lydia Zinn, telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 116 Transcript Order, ) Redacted Transcript Deadline set for 5/29/2018. Release of Transcript Restriction set for 7/25/2018. (Related documents(s) 116 ) (zinnlr62S, COURT STAFF) (Filed on 4/26/2018) (Entered: 04/26/2018)
118 ORDER by Judge Edward M. Chen Granting 110 Defendant's Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 5/1/2018) (Entered: 05/01/2018)
119 STIPULATION WITH PROPOSED ORDER EXTENDING DEADLINE FOR FILING OF THIRD AMENDED COMPLAINT filed by Service Women's Action Network. (Perry, Steven) (Filed on 5/11/2018) (Entered: 05/11/2018)
120 STIPULATION AND ORDER re 119 EXTENDING DEADLINE FOR FILING OF THIRD AMENDED COMPLAINT filed by Service Women's Action Network. Signed by Judge Edward M. Chen on 5/16/18. (bpfS, COURT STAFF) (Filed on 5/16/2018) (Entered: 05/16/2018)
121 CLERK'S NOTICE. Further Case Management Conference reset from 7/19/2018 to 8/9/2018 10:30 AM in San Francisco, Courtroom 05, 17th Floor. Case Management Statement due by 8/2/2018. (This is a text−only entry generated by the court. There is no document associated with this entry.) (bpfS, COURT STAFF) (Filed on 5/30/2018) (Entered: 05/30/2018)
122 THIRD AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against James N Mattis. Filed by Service Women's Action Network. (Ring, Rosemarie) (Filed on 6/28/2018) Modified on 6/29/2018 (slhS, COURT STAFF). (Entered: 06/28/2018)
123 NOTICE of Appearance by Shilpi Agarwal (Agarwal, Shilpi) (Filed on 6/29/2018) (Entered: 06/29/2018)
124 STIPULATION WITH PROPOSED ORDER EXTENDING THE DEADLINE FOR DEFENDANT'S RESPONSE TO THE THIRD AMENDED COMPLAINT filed by Ashton Carter, Chuck Hagel, James N Mattis, Leon Panetta. (Carmichael, Andrew) (Filed on 7/3/2018) (Entered: 07/03/2018)

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 18 of 25

07/16/2018 07/16/2018 08/06/2018 08/28/2018 09/13/2018 09/20/2018 09/21/2018 09/26/2018
09/27/2018 09/27/2018

125 STIPULATION AND ORDER re 124 EXTENDING THE DEADLINE FOR DEFENDANT'S RESPONSE TO THE THIRD AMENDED COMPLAINT filed by James N Mattis, Leon Panetta, Ashton Carter, Chuck Hagel. Signed by Judge Edward M. Chen on 7/16/18. (bpfS, COURT STAFF) (Filed on 7/16/2018) (Entered: 07/16/2018)
126 CLERK'S NOTICE. Further Case Management Conference reset from 8/9/2018 to 9/27/2018 01:30 PM in San Francisco, Courtroom 05, 17th Floor. Case Management Statement due by 9/20/2018. (This is a text−only entry generated by the court. There is no document associated with this entry.) (bpfS, COURT STAFF) (Filed on 7/16/2018) (Entered: 07/16/2018)
127 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by Ashton Carter, Chuck Hagel, James N Mattis, Leon Panetta. Motion Hearing set for 9/27/2018 01:30 PM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. Responses due by 8/28/2018. Replies due by 9/13/2018. (Attachments: # 1 Proposed Order)(Carmichael, Andrew) (Filed on 8/6/2018) (Entered: 08/06/2018)
128 OPPOSITION/RESPONSE (re 127 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim ) Plaintiff's Opposition to Defendant's Motion to Dismiss Plaintiff's Third Amended Complaint filed byService Women's Action Network. (Ring, Rosemarie) (Filed on 8/28/2018) (Entered: 08/28/2018)
129 REPLY in Support (re 127 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim) filed by Ashton Carter, Chuck Hagel, James N Mattis, Leon Panetta. (Carmichael, Andrew) (Filed on 9/13/2018) (Entered: 09/13/2018)
130 JOINT CASE MANAGEMENT STATEMENT filed by Service Women's Action Network. (Attachments: # 1 Declaration of Lieutenant Colonel Naomi R. Mercer, # 2 Declaration of Colonel Douglas S. Mayer)(Perry, Steven) (Filed on 9/20/2018) (Entered: 09/20/2018)
131 NOTICE by Service Women's Action Network re 127 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Notice of Supplemental Authority Pursuant to L.R. 7−3(d)(2) with Respect to Defendant's Motion to Dismiss Plaintiff's Third Amended Complaint (Attachments: # 1 Stockman v. Trump)(Perry, Steven) (Filed on 9/21/2018) (Entered: 09/21/2018)
132 REQUEST pursuant to L.R. 7−3(d) for Leave to Submit Sec. Mattiss September 25, 2018 Statements Regarding Women in Combat Roles re 127 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by Service Women's Action Network. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 127 ) (Perry, Steven) (Filed on 9/26/2018) Modified on 9/27/2018 (slhS, COURT STAFF). (Entered: 09/26/2018)
Electronic filing error Re: 132 Supplemental Brief, filed by Service Women's Action Network. Incorrect event used. [err101] Corrected by Clerk's Office. No further action is necessary. (slhS, COURT STAFF) (Filed on 9/27/2018) (Entered: 09/27/2018)
133 Minute Entry for proceedings held before Judge Edward M. Chen:

Motion Hearing held on 9/27/2018 re 127 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by James N Mattis, Leon Panetta, Ashton Carter, Chuck Hagel and Further Case Management Conference held on 9/27/2018. Case Management Statement due by 11/12/2018. Further Status Conference set for 11/19/2018 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. See pdf image for further details.

Total Time in Court: 52 Minutes. Court Reporter: Katherine Sullivan.

Plaintiff Attorneys: Elizabeth Gill, Steve Perry, Shilpi Agarwal. Defendant Attorney: Andrew Carmichael.

Attachment: Minute Order. (afmS, COURT STAFF) (Date Filed: 9/27/2018) (Entered: 09/28/2018)

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 19 of 25

11/05/2018 11/07/2018 11/13/2018 11/16/2018
11/27/2018 11/27/2018 11/29/2018 11/29/2018 11/30/2018 12/07/2018 12/11/2018 12/14/2018
12/20/2018

134 CLERK'S NOTICE: The time of the Status Conference is reset from 11/19/2018 at 10:30 a.m. to 11/19/2018 01:30 PM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. (This is a text−only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Filed on 11/5/2018) (Entered: 11/05/2018)
135 CLERK'S NOTICE: The time of the Status Conference is reset from 11/19/2018 at 1:30 p.m. to 11/19/2018 at 02:30 PM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. (This is a text−only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Filed on 11/7/2018) (Entered: 11/07/2018)
136 JOINT CASE MANAGEMENT STATEMENT filed by Service Women's Action Network. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Perry, Steven) (Filed on 11/13/2018) (Entered: 11/13/2018)
137 CLERK'S NOTICE: The Status Conference scheduled for 11/19/2018 at 2:30 p.m. is VACATED and RESCHEDULED for 12/11/2018 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. Joint Status Report due by 12/4/2018. (This is a text−only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Filed on 11/16/2018) (Entered: 11/16/2018)
138 NOTICE of Change of Address by Andrew Evan Carmichael (Carmichael, Andrew) (Filed on 11/27/2018) (Entered: 11/27/2018)
139 STIPULATION WITH PROPOSED ORDER for Continuance of Case Management Conference filed by James N Mattis. (Carmichael, Andrew) (Filed on 11/27/2018) (Entered: 11/27/2018)
140 ORDER by Judge Edward M. Chen Granting in Part and Denying in Part 127 Defendant's Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 11/29/2018) (Entered: 11/29/2018)
141 Order by Judge Edward M. Chen granting 139 Stipulation to Continue Status Conference. Status Report due by 12/13/2018. Status Conference rescheduled for 12/20/2018 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen.(afmS, COURT STAFF) (Filed on 11/29/2018) (Entered: 11/29/2018)
142 TRANSCRIPT ORDER for proceedings held on Sep 27, 2018 before Judge Edward M. Chen by James N Mattis, for Court Reporter Katherine Sullivan. (Carmichael, Andrew) (Filed on 11/30/2018) (Entered: 11/30/2018)
143 ANSWER to 122 Third Amended Complaint by James N Mattis. (Carmichael, Andrew) (Filed on 12/7/2018) Modified on 12/10/2018 (slhS, COURT STAFF). (Entered: 12/07/2018)
144 JOINT CASE MANAGEMENT STATEMENT filed by Service Women's Action Network. (Perry, Steven) (Filed on 12/11/2018) (Entered: 12/11/2018)
145 Transcript of Proceedings held on 9/27/18, before Judge Edward M. Chen. Court Reporter/Transcriber Katherine Sullivan, Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 142 Transcript Order ) Redaction Request due 1/4/2019. Redacted Transcript Deadline set for 1/14/2019. Release of Transcript Restriction set for 3/14/2019. (Related documents(s) 142 ) (Sullivan, Katherine) (Filed on 12/14/2018) (Entered: 12/14/2018)
146 Minute Entry for proceedings held before Judge Edward M. Chen:

Status Conference held on 12/20/2018. Joint Status Report due by 3/21/2019. Status Conference set for 3/28/2019 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. See pdf image for further details.

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 20 of 25

Total Time in Court: 20 Minutes. Court Reporter: Not Reported.

Plaintiff Attorneys: Steven Perry, Elizabeth Gill. Defendant Attorneys: Andrew Carmichael, Joseph Nosse.

02/26/2019 03/19/2019 03/20/2019
03/22/2019
04/05/2019 04/05/2019 04/12/2019 04/12/2019 04/12/2019
04/18/2019
04/18/2019 04/25/2019 05/02/2019

Attachment: Minute Order. (afmS, COURT STAFF) (Date Filed: 12/20/2018) (Entered: 12/21/2018)
147 NOTICE of Appearance by Michael Fraser Knapp (Knapp, Michael) (Filed on 2/26/2019) (Entered: 02/26/2019)
148 STIPULATION WITH PROPOSED ORDER to continue Case Management Conference filed by James N Mattis. (Knapp, Michael) (Filed on 3/19/2019) (Entered: 03/19/2019)
149 Order by Judge Edward M. Chen granting 148 Stipulation to Continue Case Management Conference. Joint Status Report due by 4/25/2019. Status Conference rescheduled for 5/2/2019 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen.(afmS, COURT STAFF) (Filed on 3/20/2019) (Entered: 03/20/2019)
150 MOTION for Protective Order filed by James N Mattis. Motion Hearing set for 5/2/2019 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. Responses due by 4/5/2019. Replies due by 4/12/2019. (Attachments: # 1 Exhibit A − Defendant's Initial Disclosures, # 2 Exhibit B − Pl.'s Second Set of Requests for Production, # 3 Proposed Order)(Knapp, Michael) (Filed on 3/22/2019) (Entered: 03/22/2019)
151 OPPOSITION/RESPONSE (re 150 MOTION for Protective Order ) Plaintiff's Opposition to Defendant's Motion for Protective Order filed byService Women's Action Network. (Perry, Steven) (Filed on 4/5/2019) (Entered: 04/05/2019)
152 Declaration of Steven M. Perry in Support of 151 Opposition/Response to Motion for Protective Order filed byService Women's Action Network. (Related document(s) 151 ) (Perry, Steven) (Filed on 4/5/2019) (Entered: 04/05/2019)
153 MOTION for leave to appear in Pro Hac Vice of Zoe Bedell ( Filing fee $ 310, receipt number 0971−13257009.) filed by Service Women's Action Network. (Attachments: # 1 Exhibit Certificate of Good Standing)(Bedell, Zoe) (Filed on 4/12/2019) (Entered: 04/12/2019)
154 REPLY in Support (re 150 MOTION for Protective Order ) filed by James N Mattis. (Attachments: # 1 Declaration of Douglas Mayer, # 2 Declaration of Mark Henderson, # 3 Declaration of Naomi Johnson)(Knapp, Michael) (Filed on 4/12/2019) (Entered: 04/12/2019)
155 Declaration of Michael F. Knapp in Support of 154 Reply to Opposition/Response, filed byJames N Mattis. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Related document(s) 154 ) (Knapp, Michael) (Filed on 4/12/2019) (Entered: 04/12/2019)
156 CLERK'S NOTICE CHANGING TIME OF HEARINGS: Motion hearing re: 150 MOTION for Protective Order and Status Conference are rescheduled from 10:30 a.m. to 1:30 p.m. in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. (This is a text−only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Filed on 4/18/2019) (Entered: 04/18/2019)
157 Order by Judge Edward M. Chen granting 153 Motion for Pro Hac Vice.(afmS, COURT STAFF) (Filed on 4/18/2019) (Entered: 04/18/2019)
158 JOINT CASE MANAGEMENT STATEMENT filed by Service Women's Action Network. (Perry, Steven) (Filed on 4/25/2019) (Entered: 04/25/2019)
159 Minute Entry for proceedings held before Judge Edward M. Chen:

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 21 of 25

Motion Hearing and Status Conference held on 5/2/2019 re 150 MOTION for Protective Order filed by James N Mattis. Motion REFERRED to Magistrate Judge. Joint Status Report due by 7/11/2019. Further Status Conference set for 7/18/2019 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. See pdf image for further details.

Total Time in Court: 35 Minutes. Court Reporter: JoAnn Bryce.

Plaintiff Attorneys: Rosemarie Ring, Zoe Bedell, Elizabeth Gill. Defendant Attorneys: Andrew Carmichael, Michael Knapp, Michael Townsend.

05/03/2019 05/06/2019 05/07/2019
05/14/2019 05/16/2019 05/17/2019 06/04/2019 06/05/2019 06/07/2019

Attachment: Minute Order. (afmS, COURT STAFF) (Date Filed: 5/2/2019) (Entered: 05/03/2019)
160 CASE REFERRED to Magistrate Judge for Discovery (afmS, COURT STAFF) (Filed on 5/3/2019) (Entered: 05/03/2019)
CASE REFERRED to Magistrate Judge Laurel Beeler for Discovery (ahm, COURT STAFF) (Filed on 5/6/2019) (Entered: 05/06/2019)
162 ORDER by Judge Laurel Beeler addressing 150 Motion for Protective Order. The court directs the parties to meet and confer under the dispute−resolution procedure set forth in the court's standing order (attached) regarding (1) what documents are appropriately included in the administrative record; (2) whether the government must provide a privilege log if it asserts the deliberative−process privilege regarding any documents; and (3) assuming extra−record evidence is discoverable, what evidence outside the administrative record should be produced. The court asks the parties to submit a joint update in seven days with their timeline for their additional submission. (Attachments: # 1 Standing Order) (lblc1S, COURT STAFF) (Filed on 5/7/2019) (Entered: 05/07/2019)
163 STATUS REPORT Joint Update Re: Discovery Disputes by Service Women's Action Network. (Ring, Rosemarie) (Filed on 5/14/2019) (Entered: 05/14/2019)
164 ORDER re 163 Status Report filed by Service Women's Action Network. The court approves the parties' proposed timeline set out in their status report. The parties will continue to meet and confer and, if necessary, will submit a joint letter brief on June 4, 2019. Signed by Judge Laurel Beeler on May 16, 2019. (lblc1S, COURT STAFF) (Filed on 5/16/2019) (Entered: 05/16/2019)
165 TRANSCRIPT ORDER for proceedings held on 05/02/2019 before Judge Edward M. Chen by Service Women's Action Network, for Court Reporter Jo Ann Bryce. (Ring, Rosemarie) (Filed on 5/17/2019) (Entered: 05/17/2019)
166 Joint Brief Regarding Referred Issues Involving Defendants Administrative Record re 162 Order on Motion for Protective Order filed by Service Women's Action Network. (Related document(s) 162 ) (Perry, Steven) (Filed on 6/4/2019) Modified on 6/5/2019 (slhS, COURT STAFF). Modified on 6/28/2019 (Beeler, Laurel). (Entered: 06/04/2019)
167 CLERK'S NOTICE SETTING DISCOVERY HEARING: Discovery Hearing set for 6/13/2019 at 9:30 AM in San Francisco, Courtroom B, 15th Floor before Magistrate Judge Laurel Beeler. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 6/5/2019) (Entered: 06/05/2019)
168 Transcript of Proceedings held on 5/2/19, before Judge Edward M. Chen. Court Reporter Jo Ann Bryce, telephone number 510−910−5888, joann_bryce@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction after 90 days. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 165 Transcript Order ) Release of Transcript Restriction set for 9/5/2019. (Related documents(s) 165 ) (jabS, COURTSTAFF) (Filed on 6/7/2019) (Entered: 06/07/2019)

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 22 of 25

06/07/2019 06/07/2019
06/11/2019 06/13/2019 06/17/2019

169 CLERK'S NOTICE RESETTING DISCOVERY HEARING: Discovery Hearing, previously set for 6/13/2019, is reset to 6/20/2019 at 11:00 AM in San Francisco, Courtroom B, 15th Floor before Magistrate Judge Laurel Beeler. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 6/7/2019) (Entered: 06/07/2019)
170 CLERK'S NOTICE ADVANCING STATUS CONFERENCE: Due to Court unavailability, Status Conference set for 7/18/2019 is ADVANCED to 7/16/2019 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. Joint Status Report due by 7/9/2019. (This is a text−only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Filed on 6/7/2019) (Entered: 06/07/2019)
171 Supplemental Brief re 166 Brief, 162 Order on Motion for Protective Order,,, filed byJames N Mattis. (Attachments: # 1 Exhibit 1 − July 1999 Final Report, # 2 Exhibit 2 − March 1999 Status Report)(Related document(s) 166 , 162 ) (Knapp, Michael) (Filed on 6/11/2019) Modified on 6/28/2019 (Beeler, Laurel). (Entered: 06/11/2019)
172 RESPONSE re 171 Supplemental Brief Regarding Referred Issues Involving Defendants Administrative Record by Service Women's Action Network. (Perry, Steven) (Filed on 6/13/2019) Modified on 6/14/2019 (slhS, COURT STAFF). Modified on 6/28/2019 (Beeler, Laurel). (Entered: 06/13/2019)
173 ORDER. The court has a conflict that has arisen on June 20, 2019, and reschedules the hearing for June 28, 2019 at 9:30 a.m.

06/19/2019 06/20/2019 06/25/2019
06/28/2019

The court also is aware of the Ninth Circuit's decision last Friday in Karnoski v. Trump, __ F.3d __, No. 18−35347, 2019 WL 2479442 (9th Cir. June 14, 2019). The court is interested in the parties' views about whether this case affects their positions or arguments, including regarding the deliberative−process privilege and what information, if any, the defendant should be required to provide regarding its privilege claims. Cf. id. at *19. The court directs the parties to file a joint statement with their views by June 20, 2019 at noon. If the parties are of the view that Karnoski affects their positions, the parties should include with their statement (1) a joint brief of not more than five single−spaced pages or (2) a proposed schedule for meeting and conferring on their updated positions and for further briefing (including a new hearing date if June 28 does not work for them under this schedule). Signed by Judge Laurel Beeler on June 17, 2019. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lblc1S, COURT STAFF) (Filed on 6/17/2019) (Entered: 06/17/2019)
174 Statement re 173 Order Parties' Joint Proposed Schedule by James N Mattis. (Knapp, Michael) (Filed on 6/19/2019) (Entered: 06/19/2019)
175 CLERK'S NOTICE RESETTING DISCOVERY HEARING TIME: Discovery Hearing set for 6/28/2019 at 9:30 AM is reset to 2:00 PM in San Francisco, Courtroom B, 15th Floor before Magistrate Judge Laurel Beeler. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 6/20/2019) (Entered: 06/20/2019)
176 Supplemental Brief re 173 Order,,,,,, Set Deadlines/Hearings,,,,, 174 Statement SUPPLEMENTAL JOINT BRIEF REGARDING THE IMPACT OF KARNOSKI ON THE PARTIES POSITIONS REGARDING THE REFERRED ISSUES INVOLVING DEFENDANTS ADMINISTRATIVE RECORD filed byService Women's Action Network. (Related document(s) 173 , 174 ) (Perry, Steven) (Filed on 6/25/2019) Modified on 6/28/2019 (Beeler, Laurel). (Entered: 06/25/2019)
177 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Discovery Hearing held on 6/28/2019. Court to issue order.

Total Time in Court: 28 minutes. FTR Time: 2:48−3:16.

Plaintiff's Attorneys: Zoe Bedell and Elizabeth Gill. Defendant's Attorney: Andrew Carmichael. >br> (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 6/28/2019) (Entered: 06/28/2019)

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 23 of 25

06/28/2019 07/02/2019 07/03/2019
08/02/2019 08/16/2019
08/20/2019 08/21/2019 08/22/2019
09/19/2019 10/10/2019
10/17/2019

178 ORDER REGARDING DISCOVERY DISPUTES IN ECF NOS. 166 171 172 176 . (Beeler, Laurel) (Filed on 6/28/2019) (Entered: 06/28/2019)
179 STIPULATION WITH PROPOSED ORDER TO CONTINUE CASE MANAGEMENT CONFERENCE filed by James N Mattis. (Carmichael, Andrew) (Filed on 7/2/2019) (Entered: 07/02/2019)
180 Order by Judge Edward M. Chen granting 179 Stipulation to Continue Case Management Conference. Joint Status Report due by 8/22/2019. Status Conference set for 7/16/2019 is vacated and rescheduled for 8/29/2019 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen.(afmS, COURT STAFF) (Filed on 7/3/2019) (Entered: 07/03/2019)
181 RESPONSE re 178 Order on Discovery Letter Brief,,, by James N Mattis. (Attachments: # 1 Exhibit 1 (Declaration of Tracey Madsen))(Carmichael, Andrew) (Filed on 8/2/2019) (Entered: 08/02/2019)
182 RESPONSE re 178 Order on Discovery Letter Brief,,, by James N Mattis. (Attachments: # 1 Exhibit 1 (Declaration of Thomas Delfilippo), # 2 Exhibit 2 (Declaration of Maj Comiskey), # 3 Exhibit 3 (Declaration of Col Mayer))(Carmichael, Andrew) (Filed on 8/16/2019) (Entered: 08/16/2019)
183 NOTICE of Substitution of Counsel by Rebecca Cutri−Kohart (Cutri−Kohart, Rebecca) (Filed on 8/20/2019) (Entered: 08/20/2019)
184 STIPULATION WITH PROPOSED ORDER filed by Service Women's Action Network. (Bedell, Zoe) (Filed on 8/21/2019) (Entered: 08/21/2019)
185 Order by Judge Edward M. Chen granting 184 Stipulation. Joint Status Report due by 10/10/2019. Status Conference reset for 10/17/2019 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen.(afmS, COURT STAFF) (Filed on 8/22/2019) (Entered: 08/22/2019)
186 NOTICE of Change In Counsel by Elizabeth O. Gill (Gill, Elizabeth) (Filed on 9/19/2019) (Entered: 09/19/2019)
187 STATUS REPORT JOINT by Service Women's Action Network. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bedell, Zoe) (Filed on 10/10/2019) **Edited filer per filer's request.** Modified on 10/10/2019 (ddkS, COURT STAFF). (Entered: 10/10/2019)
188 Minute Entry for proceedings held before Judge Edward M. Chen:

Status Conference held on 10/17/2019. Jury Trial set for 10/26/2020 at 8:30 a.m. Scheduling Order to issue. Joint Status Report due by 3/5/2020. Status Conference set for 3/12/2020 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. See pdf image for further details.

Total Time in Court: 18 Minutes. Court Reporter: Not Reported.

Plaintiff Attorneys: Zoe Bedell, Elizabeth Gill. Defendant Attorneys: Andrew Carmichael, Rebecca Cutri−Kohart, Tracey Madsen, Michael Townsend, Jr.

10/18/2019

Attachment: Minute Order. (afmS, COURT STAFF) (Date Filed: 10/17/2019) (Entered: 10/18/2019)
189 CASE MANAGEMENT AND PRETRIAL ORDER FOR JURY TRIAL: Dispositive Motions due by 6/11/2020. Dispositive Motion Hearing set for 7/16/2020 01:30 PM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. Discovery due by 4/23/2020. Final Pretrial Conference set for 9/29/2020 02:30 PM in San Francisco, Courtroom 05, 17th Floor. Jury Selection/Jury Trial set for 10/26/2020 08:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. Further Jury Trial set for 10/27/2020, 10/28/2020, 10/30/2020, 11/2/2020, 11/3/2020, 11/4/2020, 11/6/2020, 11/9/2020 08:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. Status Conference set 3/12/2020 at 10:30 a.m. Joint Status

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 24 of 25

01/07/2020 01/08/2020 01/09/2020 01/09/2020 02/26/2020 02/26/2020 02/26/2020 02/26/2020
03/03/2020
03/04/2020 03/04/2020
03/18/2020
04/23/2020

Report due 3/5/2020. Signed by Judge Edward M. Chen on 10/17/2019. (afmS, COURT STAFF) (Filed on 10/18/2019) (Entered: 10/18/2019)
190 NOTICE by Ashton Carter, Chuck Hagel, James N Mattis, Leon Panetta of Legislation Related to the Pending Litigation (Cutri−Kohart, Rebecca) (Filed on 1/7/2020) (Entered: 01/07/2020)
191 STIPULATION WITH PROPOSED ORDER PROTECTIVE ORDER filed by Service Women's Action Network. (Bedell, Zoe) (Filed on 1/8/2020) (Entered: 01/08/2020)
192 Order by Magistrate Judge Laurel Beeler granting 191 Stipulated Protective Order. (ejkS, COURT STAFF) (Filed on 1/9/2020) (Entered: 01/09/2020)
193 CLERK'S NOTICE: Parties are ordered to meet and confer re: 190 Notice and are to note result in status report filed 3/5/2020 prior to next status conference. (This is a text−only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Filed on 1/9/2020) (Entered: 01/09/2020)
194 STIPULATION and Proposed Order selecting Mediation by Service Women's Action Network filed by Service Women's Action Network. (Bedell, Zoe) (Filed on 2/26/2020) (Entered: 02/26/2020)
195 STIPULATION re 193 Clerk's Notice, filed by Service Women's Action Network. (Bedell, Zoe) (Filed on 2/26/2020) Modified on 2/26/2020 (afmS, COURT STAFF). (Entered: 02/26/2020)
196 Order by Judge Edward M. Chen granting 194 Stipulation selecting Mediation. Court refers to Magistrate Judge Laurel Beeler for settlement conference. (afmS, COURT STAFF) (Filed on 2/26/2020) (Entered: 02/26/2020)
197 Order as Modified by Judge Edward M. Chen granting 195 Stipulation Regarding Continuance of Status Conference and Regarding Discovery and Pretrial Order in Light of Pending ADR Request. Status Conference set for 3/12/2020 is vacated and rescheduled for 6/11/2020 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. Joint Status Report due by 6/4/2020. Current pre−trial deadlines and trial date vacated. (afmS, COURT STAFF) (Filed on 2/26/2020) (Entered: 02/26/2020)
198 CLERK'S NOTICE SETTING SETTLEMENT CONFERENCE SCHEDULING CALL: This case was referred for a settlement conference to Magistrate Judge Laurel Beeler. The court sets a call with the parties to discuss the timing and logistics of the settlement conference for Thursday, 3/5/2020 at 10:30 AM. The court will email a call−in number separately. If this date does not work, parties may request to change the date by stipulation. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 3/3/2020) (Entered: 03/03/2020)
199 STIPULATION re 198 Clerk's Notice,, filed by James N Mattis. (Carmichael, Andrew) (Filed on 3/4/2020) (Entered: 03/04/2020)
200 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE SCHEDULING CALL: Pursuant to the parties' stipulation, the court resets the settlement conference scheduling call to 3/19/2020 at 10:15 AM. The court will email the call−in information separately. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 3/4/2020) (Entered: 03/04/2020)
201 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE CALL: The parties proposed moving the scheduling call to April. The court moves the call from 3/19/2020 to 4/30/2020 at 11:30 AM. and will circulate a call−in number separately. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 3/18/2020) (Entered: 03/18/2020)
202 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE SCHEDULING CALL: Pursuant to the parties' stipulation, the court resets the Settlement Conference Scheduling Call previously set for 4/30/2020 to 5/21/2020 at 10:30 AM. The court will email the call−in information separately. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF)

Case: 3:12-cv-6005 As of: 05/19/2020 08:11 PM PDT 25 of 25 (Filed on 4/23/2020) (Entered: 04/23/2020)