                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           FEB 19 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NATIONAL COALITION FOR MEN and                   No. 13-56690
JAMES LESMEISTER, Individually and
on behalf of others similarly situated,          D.C. No. 2:13-cv-02391-DSF-
                                                 MAN
              Plaintiffs - Appellants,

 v.                                              MEMORANDUM*

SELECTIVE SERVICE SYSTEM and
LAWRENCE G. ROMO, as Director of
Selective Service System,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                     Argued and Submitted December 8, 2015
                              Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GOULD and BERZON, Circuit Judges, and STEEH,** Senior District
Judge.

      The National Coalition for Men (“Coalition”) and James Lesmeister appeal

the district court’s dismissal of their suit against the Selective Service as unripe.

We reverse and remand for further proceedings.

      1. “[S]ince ripeness is peculiarly a question of timing, it is the situation now

rather than the situation at the time of the District Court’s decision that must

govern.” Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 140 (1974). The

district court’s decision was largely premised on the fact that the Department of

Defense has been engaged in a multi-year process of integrating women into

formerly closed positions, and it was unclear the extent to which these positions

would be opened. Much of that uncertainty has passed: as the government has

noted, the Secretary of Defense recently announced that the military “intends to

open all formerly closed positions” to women.

      Even if some uncertainty remains as to the full extent to which women will

end up serving in combat roles, that does not render the Coalition and Lesmeister’s

claims unripe. The ripeness inquiry asks whether there is a legitimate controversy



       **
              The Honorable George Caram Steeh III, Senior District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.


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that is “fit for adjudication.” Assoc. of Am. Med. Colls. v. United States, 217 F.3d

770, 782 (9th Cir. 2000) (quoting Texas v. United States, 523 U.S. 296, 300

(1998)). Lesmeister and the Coalition point to numerous specific changes in

statutes, policies, and practices that have happened since the Supreme Court’s

decision in Rostker v. Goldberg, 453 U.S. 57 (1981). The Selective Service argues

that women’s roles in combat have not changed sufficiently to revisit Rostker. But

whether there has been sufficient change to revisit Rostker is a question about the

merits of the Coalition and Lesmeister’s claims, not about ripeness. We make no

comment on the merits of these claims, other than noting that they are “definite and

concrete, not hypothetical or abstract,” and so ripe for adjudication. Wolfson v.

Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010) (quoting Thomas v. Anchorage

Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000)).

      2. For purposes of standing’s redressability inquiry, the injuries the Coalition

and Lesmeister allege could be addressed either by extending the burden of

registration to women or by striking down the requirement for men. When a court

sustains an equal protection challenge to a statute, “it may either declare the statute

a nullity . . . or it may extend the coverage of the statute.” Heckler v. Mathews,

465 U.S. 728, 738 (1984) (quoting Welsh v. United States, 398 U.S. 333, 361




                                           3
(1970) (Harlan, J., concurring in the result)); see also Levin v. Commerce Energy,

Inc., 560 U.S. 413, 426-27 (2010) (“How equality is accomplished—by extension

or invalidation of the unequally distributed benefit or burden, or some other

measure—is a matter on which the Constitution is silent.”). We express no view as

to which remedy might ultimately be appropriate. But we note the Selective

Service is wrong to argue that the Coalition and Lesmeister lack standing because

their alleged equality injuries would not be redressed if the burdens they challenge

were extended to women.

      3. We decline otherwise to address the Selective Service’s standing

argument. The remaining challenges to standing are premised on alleged

deficiencies in the complaint. The district court did not address these alleged

deficiencies. A full consideration of the case-specific standing issues may benefit

from amendment of the complaint and factual development. See, e.g., Hayes v.

County of San Diego, 736 F.3d 1223, 1229 (9th Cir. 2013); Friery v. L.A. Unified

Sch. Dist., 448 F.3d 1146, 1150 (9th Cir. 2006).

      We remand for the district court to consider the questions of standing other

than the one we have addressed, and, if it has jurisdiction, the merits of the case.

      REVERSED and REMANDED.




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