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




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

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

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

                                                       Plaintiffs—Appellees,

                                    versus

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

                                                    Defendants—Appellants.


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


 Before Wiener, Stewart, and Willett, Circuit Judges.
 Per Curiam:
       Plaintiffs-Appellees James Lesmeister, Anthony Davis, and the
 National Coalition for Men sued Defendant-Appellants the Selective Service
 System and its director (collectively, “the Government”) alleging that the
 male-only military draft is unlawful sex discrimination. The district court
 granted Plaintiffs-Appellees declaratory judgment, holding that requiring
 only men to register for the draft violated their Fifth Amendment rights.
Case: 19-20272      Document: 00515525562          Page: 2     Date Filed: 08/13/2020




                                   No. 19-20272


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




                                        2
Case: 19-20272      Document: 00515525562           Page: 3     Date Filed: 08/13/2020




                                   No. 19-20272


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




                                         3
Case: 19-20272       Document: 00515525562        Page: 4     Date Filed: 08/13/2020




                                  No. 19-20272


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




                                        4
Case: 19-20272      Document: 00515525562          Page: 5    Date Filed: 08/13/2020




                                  No. 19-20272


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



                                        5
Case: 19-20272      Document: 00515525562         Page: 6     Date Filed: 08/13/2020




                                  No. 19-20272


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




                                        6
