U.S. Army Spc. Valerie Arceneaux, 3rd Armored Brigade Combat Team, 1st Cavalry Division, poses for a series of feature photos during the Expert Soldier Badge Qualification at Fort Hood, Texas, August 19, 2020. (U.S. Army Illustration by Sgt. Calab Franklin)

By Ashley Willard

As it stands, the Military Selective Service Act (“MSSA”) only impacts males.[1] The MSSA gives the President authority to issue a proclamation requiring all male citizens and most male noncitizen residents between the ages of eighteen and twenty-six to register with the Selective Service.[2] The current registration period began when President Carter issued Presidential Proclamation 4771 in 1980.[3] The registration process facilitates conscription in the event that a national emergency necessitates a military draft.[4] Any man who knowingly fails to register may face criminal penalties of up to five years in prison and up to $10,000 in fines.[5] Other penalties include ineligibility for federal student aid or federal job training.[6]

Nearly forty years ago, the Supreme Court upheld the constitutionality of the MSSA in Rotsker v. Goldberg.[7] The Court emphasized then recent congressional findings in which Congress considered extending the MSSA to include women, but ultimately declined to do so.[8] In these findings, Congress highlighted two main facts—(1) the purpose of the draft is mass mobilization of combat troops, and (2) women were ineligible for combat roles at the time.[9] Therefore, the Court held that men and women were not similarly situated with regard to the draft because of the combat restrictions on women, and therefore there was no Fifth Amendment violation.[10]

However, in February 2019, a federal district court judge in Houston found that the male-only draft registration requirement was indeed unconstitutional on Fifth Amendment equal protection grounds.[11] The court reasoned that “Rotsker is factually distinguishable” because of the substantial changes in the facts underlying that decision.[12] Women’s opportunities in the military have greatly expanded since 1981.[13] In fact, the doors opened completely for women in 2015 when Defense Secretary Ash Carter rescinded the combat-exclusion policy that had previously kept women from serving in combat roles.[14] The district court highlighted that “women are now eligible for all military service roles, including combat positions.”[15] Applying intermediate scrutiny, the court held that the government did not meet its burden to show that the male-only registration requirement continues to be substantially related to the admittedly important governmental interest of raising and supporting armies.[16]

The government appealed, and in August 2020, the Fifth Circuit reversed, holding that Rotsker controlled until the Supreme Court itself decided to reverse its precedent.[17] The court of appeals echoed the lower court’s assertion that “the factual underpinning of the controlling Supreme Court decision has changed,” but emphasized that appeals courts do not have “license to disregard or overrule that precedent.”[18] Yet, while the MSSA remains binding precedent, the winds of change have clearly started to blow.

In 2017, Congress tasked the National Commission on Military, National, and Public Service to conduct a review of the military selective service process.[19] In their report, issued in March 2020, the Commission concluded that it was time to extend the registration requirement to women.[20] First, there are prudent reasons for including women in the draft—seven out of every ten young Americans would not meet the physical, moral, educational, and health standards required for service.[21] Department of Defense research indicates that women are equally likely to qualify for service as men, and excluding half the pool of eligible individuals would be “imprudent.”[22] Second, there are ethical and moral reasons for doing so—the “current disparate treatment of women unacceptably excludes women from a fundamental civic obligation and reinforces gender stereotypes about the role of women.”[23]

If Congress is persuaded by this recommendation and passes legislation amending the MSSA, there will be no need for the Supreme Court to revisit the issue.[24] There have been several failed legislative attempts to amend the MSSA and require women to register with the Selective Service.[25] The most promising attempt began with the Senate Armed Services Committee recommending that Congress amend the MSSA to require women to register; it ended instead with the creation of a commission to report on the issue, as discussed above.[26] A different report, published by the Congressional Research Service, proposed three routes that Congress could take to wade into the debate.[27] First, Congress could amend the MSSA to require women to register for the Selective Service.[28] Second, Congress could simply amend the MSSA to provide a new justification for why women should not be required to register, to preempt judicial review.[29] Third, Congress could repeal the MSSA altogether.[30] It is highly unlikely that Congress will pursue this final route.

If Congress takes no action, then resolution of this issue rests with the judicial system. As discussed above, the facts relied on by the Rotsker Court have changed substantially and the circumstances no longer seem to support the constitutionality of the MSSA. The Court has demonstrated a willingness in the past to overrule prior decisions based on subsequent factual developments.[31] Therefore, if the Court takes up the issue, it is likely that it will overturn Rotsker and declare a male-only draft unconstitutional.

Whether the issue is tackled in Congress or by the Court, we can expect a resolution in the not-so-distant future. Ladies, get ready. 

[1] 50 U.S.C. § 3802 (“[I]t shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who . . . is between the ages of eighteen and twenty-six, to present himself for and submit to registration) (emphasis added).

[2] Id. See also Jonathan M. Gaffney, Cong. Rsch. Serv., LSB10491, Expanding the Selective Service: Legal Issues Surrounding Women and the Draft 1 (2020), https://crsreports.congress.gov/product/pdf/LSB/LSB10491.

[3] Proclamation No. 4771, 3 C.F.R. § 82 (1981), reprinted in 50 U.S.C. § 3802 app. at 742 (2018).

[4] Nat’l Coal. for Men v. Selective Serv. Sys., 969 F.3d 546, 547 (5th Cir. 2020).

[5] 50 U.S.C. § 3811(a)–(b).

[6] Id. § 3811(f).

[7] 453 U.S. 57 (1981).

[8] Id. at 73.

[9] Id. at 77.

[10] Id. at 78–79. The MSSA, a federal law, implicates the Fifth Amendment rather than the Fourteenth because the Fifth Amendment applies to actions of the federal government. See Barron v. Baltimore, 32 U.S. 243 (1833).

[11] Nat’l Coal. for Men v. Selective Serv. Sys., 355 F. Supp. 3d 568 (S.D. Tex. 2019), rev’d, 969 F.3d 546 (5th Cir. 2020). Marc Angelucci, counsel for the National Coalition for Men, was killed earlier this year by fellow men’s rights activist Den Hollander, a former member of NCFM who had been ousted from the group in 2015 after making threats on NCFM’s president for passing him over as co-counsel in this case. Sonia Mohge & Paul P. Murphy, Friend of Slain California Attorney Says Suspect in Attack on Judge’s Family Had a Grudge Against Him, CNN (Jul. 22, 2020), https://www.cnn.com/2020/07/22/us/hollander-angelucci-judge-salas-shooting/index.html.

[12] Nat’l Coal. for Men, 355 F. Supp. 3d at 575.

[13] Id. at 576.

[14] Nat’l Comm’n on Mil., Nat., and Pub. Serv., Inspired to Serve: The Final Report 114 (2020), https://inspire2serve.gov/sites/default/files/final-report/Final%20Report.pdf [hereinafter Inspired to Serve]. See also Cheryl Pellerin, Carter Opens All Military Occupations, Positions to Women, DOD News (Dec. 3, 2015),  https://www.defense.gov/Explore/News/Article/Article/632536/carter-opens-all-military-occupations-positions-to-women/#:~:text=Defense%20Secretary%20Ash%20Carter%20announced,open%20to%20women%2C%20without%20exception.&text=%E2%80%9CThey’ll%20be%20allowed%20to,into%20combat%2C%22%20Carter%20added.

[15] Nat’l Coal. for Men, 355 F. Supp. 3d at 576.

[16] Id. at 581.

[17] Nat’l Coal. for Men v. Selective Serv. Sys., 969 F.3d 546, 547 (5th Cir. 2020).

[18] Id. at 549-50.

[19] Gaffney, supra note 2, at 3.

[20] Inspired to Serve, supra note 14, at 115.

[21] Id.

[22] Id. Actually, the reported statistics indicate that women are slightly more likely to qualify for service (29.3 percent) than their male counterparts (29 percent). Id.

[23] Id.

[24] While the National Coalition for Men has not yet petitioned the Supreme Court for review, its website indicates that it plans to, as it is currently “exploring its options, including filing a Petition for Writ of Certiorari with the United States Supreme Court.” Nat’l Coalit. for Men, https://ncfm.org/ (last visited Oct. 6, 2020).

[25] Gaffney, supra note 2, at 3.

[26] See supra notes 19–23.

[27] Gaffney, supra note 2, at 4.

[28] Id.

[29] Id. The government offered two such justifications in National Coalition for Men: (1) the requirement of female conscription into combat roles might reduce female enlistment by increasing the perception that women would be forced to serve in combat roles; and (2) the administrative problems of drafting women, who are treated differently with regard to “dependency, hardship, and physical standards.” 969 F.3d 546, 579–80 (5th Cir. 2020). The court outright rejected the first as an “archaic and overbroad generalization” that women are more combat-averse than men, so that justification will unlikely be used to support future legislation. Id. at 579. While the court ultimately also rejected the second, they did so in part because of the standard of review. The court indicated that if Congress were to make a “studied choice” based on male and female rates of physical eligibility, the administrative justification might stand in the future. Id. at 581. However, as discussed in supra note 22, women are actually more likely to be physical eligible than men. Thus, while Congress might be able to find a satisfactory administrative justification, they probably will not be able to justify the continued exclusion of women based on rates of physical eligibility.

[30] Gaffney, supra note 2, at 4.

[31] Cong. Rsch Serv., R45319, The Supreme Court’s Overruling of Constitutional Precedent 17–18 (2018), https://www.everycrsreport.com/files/20180924_R45319_3cafb6dc6b134c9a1c83eff9bfb780a3b904bd3a.pdf.


By Kelsey Mellan

On October 21, 2016, the Fourth Circuit issued a published opinion in Al Shimari v. CACI Premier Tech., Inc., a civil case involving four Iraqi nationals who were allegedly abused while detained at Abu Gharib prison, located near Baghdad, Iraq, in 2003 and 2004. While the plaintiffs in this action were held by the United States Army, CACI Premier Technology (“CACI”), a corporation headquartered in Virginia, provided contract interrogation services for the military at the time of the alleged abuse. This case is on appeal before the Fourth Circuit for the fourth time. The current issue before the court is whether the district court erred in dismissing plaintiffs’ complaint on the ground that it presented a non-justiciable political question. The Fourth Circuit vacated the district court’s judgment and remanded this case for further proceedings consistent with the instructions discussed in this opinion.

Facts & Procedural History

 In 2003, the US took control of Abu Gharib prison (“Abu Gharib”), a prison located near Baghdad, Iraq that was previously under Saddam Hussein’s control. Upon assuming control of the Abu Gharib, the US military used the facilities to hold individuals for interrogation related to intelligence gathering. Due to a shortage of military interrogators, the US contracted CACI to provide additional interrogation services at Abu Gharib. In a later investigation of Abu Gharib, the United States Department of Defense (“DoD”) determined that prisoners were tortured at the prison between October and December 2003. The DoD investigation confirmed that both CACI interrogators and military personnel engaged in the allegedly abusive conduct. The US military disciplined multiple service members who were involved by either court martial or imprisonment. It is unclear as to whether any CACI interrogators where punished either administratively or criminally.

In their complaint, filed in June 2008, the plaintiffs alleged that CACI interrogators conspired with low-ranking military police officials to abuse the plaintiffs to make them “more responsive” during later interrogations. The plaintiffs further allege that CACI interrogators “instigated, directed, participated in, encouraged, and aided and abetted conduct towards detainees” in clear violation of the Geneva Conventions, the Army Field Manual, and the laws of the United States. Furthermore, the plaintiffs allege the acts of abuse were possible because of a “command vacuum” at Abu Gharib, caused by the failure of military leaders to exercise effective oversight of CACI interrogators. CACI moved to dismiss the plaintiff’s complaint on several grounds, including the political question doctrine. However, the district court determined that it lacked subject matter jurisdiction over this case, as CACI is a private party rather than a governmental actor, and both parties failed to demonstrate either diversity or federal question jurisdiction.

After several subsequent remands and rehearings in this case, the district court decided in Al Shimari v. CACI Premier Tech., Inc. (4th Cir. 2014) (Al Shimari III) that the plaintiffs’ claim presented a non-justiciable political question and should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). In this appeal, the plaintiffs contend that the district court erred in dismissing their complaint as non-justiciable under the political question doctrine.

Explanation of Political Question Doctrine

The Supreme Court defined the political question doctrine in Japan Whaling Association v. American Cetacean Society as the limitation of courts’ jurisdiction over “controversies which revolved around policy choices and value determinations constitutionally committed” to either the executive or legislative branch. This is a narrow exception to the judiciary’s general obligation to decide cases properly brought before the courts. This rule is justified by the concern that courts are ill-equipped to evaluate discretional military decisions. Despite the general presumption that military decisions are committed exclusively to the executive branch, a claim is not shielded from judicial review just because it arose in a military setting.

The Supreme Court established a six-factor test in Baker v. Carr to aid courts in determining whether a case presents a political question. In Taylor v. Kellogg Brown & Root Services, Inc., the Fourth Circuit further distilled these factors into two questions for consideration in determining whether a court has subject matter jurisdiction in a negligence suit against a government contractor, such as CACI. The first inquiry is whether the government contractor was under the direct control of the military. The second inquiry is whether national defense interests were so intertwined with military decisions governing the contractor’s conduct that a decision on the merits of the claim would require the court to question military judgments. An affirmative answer to either question generally triggers the application of the political question doctrine.

Application of the Political Question Doctrine

 In the instant case, the Fourth Circuit determined that there was some evidence that shows the military was in direct control of CACI interrogators, including the fact that the military was in charge of the official command structure at Abu Gharib. However, overwhelming evidence in the record indicated that the military failed to exercise actual control over the CACI interrogators. Moreover, additional evidence suggested that CACI interrogators actually ordered low-level military personnel to mistreat the detainees.

In total, the record demonstrated that the military’s formal command authority did not translate into actual day-to-day control of CACI interrogators. While the district court’s analysis focused on this formal control by the military, the Fourth Circuit decided that the concept of dire control encompasses not only the requirements set in place before the interrogations, but also what actually occurred during the interrogations. Furthermore, this court clarified that the military cannot lawfully exercise its authority by directing a contractor to engage in unlawful activity, and therefore if a contractor does engage in unlawful activity, the contractor cannot claim protection under the political question doctrine.

In terms of the second Taylor factor, the district court concluded that the plaintiffs’ claims were non-justiciable because adjudicating the plaintiffs’ claims would impinge on the military’s authority to select interrogation strategies. However, the district court failed to draw a distinction between unlawful conduct and discretionary acts that were not unlawful when committed. Unlawful acts fall outside the protection of the political question doctrine. Therefore, the lower court must distinguish between unlawful acts and discretionary acts (that were, at the time, lawful).

 When a military contractor acts contrary to settled international law or applicable criminal law, the separation of powers rationale of the political question doctrine does not preclude judicial review. The adjudication of a claim involving an unlawful act simply requires a court to engage in the traditional judicial function of “saying what the law is.” The Supreme Court has explained that the political question doctrine does not strip courts of the ability to apply traditional rules of statutory interpretation to the facts in a particular case. Therefore, any conduct of CACI employees that occurred under direct military control or involving sensitive military judgments, and was not unlawful when committed, constituted is shielded from judicial review under the political question doctrine. However, any unlawful acts committed by CACI employees are subject to judicial review, as they fall outside of the political question doctrine’s purview.

The Fourth Circuit acknowledged that some conduct is not clearly lawful or unlawful, and deemed this as “grey area” conduct. Accordingly, this court vacated the district court’s decision and remanded the case. The Fourth Circuit instructed the district court to determine which of the alleged acts were unlawful by examining the evidence regarding the specific conduct to which the plaintiffs were subjected and the source of any direction under which the acts took place. Judge Floyd authored a concurrence in this case, in which he agreed with the majority’s holding, but questioned the definition of “grey area” conduct and whether this greyness renders close cases justiciable.


 The Fourth Circuit concluded the political question doctrine does not shield unlawful acts committed by government contractors from judicial review and thus vacated the district court’s judgment and remanded this case for further proceedings.



By Sarah Saint

On February 1, 2016, the Fourth Circuit amended its opinion in the civil case, Aikens v. Ingram (as amended), holding that the Feres “incident to service” test applies to 42 U.S.C. § 1983 claims alleging constitutional violations that arise out of or in the course of activity incident to federal military service. Because Appellant alleged a constitutional violation that occurred while he was on active duty, while he was deployed, and through his Department of Defense email, Feres bars recovery under § 1983.

The Email Scandal

In 2001, Appellant Frederick Aikens (“Aikens”) was promoted to full colonel of the 139th Rear Operations Center of the North Carolina National Guard. Respondent Peter von Jess (“von Jess”) was named executive officer and a subordinate to Aikens. In December 2002, Aikens gave von Jess a negative officer evaluation report, which von Jess appealed to Respondent William E. Ingram (“Ingram”), arguing that Aikens evaluation was made with malice.

In 2003, while Aikens was deployed to Kuwait and von Jess remained in North Carolina, Paul Jones (“Jones”) and Brian McCarthy (“McCarthy”), information technology personnel, used illegal means to read and forward around 130 of Aikens’ personal emails to von Jess. Von Jess used those emails to compose a damning memorandum to the North Carolina Governor’s chief of staff, alleging that Aikens planned to overthrow the Adjutant General. Von Jess also forward the emails to the Department of the Army Inspector General (“DAIG”).

In May 2004, DAIG found six instances of misconduct on Aikens’ part, even though DAIG concluded Jones and McCarthy improperly accessed Aikens’ emails. DAIG provided such findings to the Governor of North Carolina and Ingram. Ingram forwarded the findings to Lieutenant General Russel Honoré (“Honoré”), who withdrew federal recognition from Aikens, resulting in Aikens’ constructive termination. Aikens subsequently transferred to the retired reserve.

Respondents’ Motion for Summary Judgment

On April 27, 2006, Aikens sued von Jess and Ingram in their individual capacities under 42 U.S.C. § 1983, arguing that they facilitated unconstitutional searches and seizures of his personal emails while he was deployed in Kuwait. In support, he claimed that von Jess and Ingram, motivated by revenge, authorized and directed McCarthy and Jones to send Aikens’ incriminating emails to von Jess because of Aikens contentious history with von Jess.

Von Jess and Ingram moved for summary judgment for two reasons. (1) Aikens had no reasonable expectation of privacy in his emails because Army Regulations made clear that emails sent and received over the Department of Defense computer system could be monitored. (2) Aikens’ claims are nonjusticiable under Feres v. United States, 340 U.S. 135 (1950). The district court granted Von Jess’ and Ingram’s motion for summary judgment, which Aikens appealed.

Standard of Review

The Fourth Circuit considered de novo the threshold legal question of whether the district court properly abstained from ruling on Aikens’ claims, taking all facts in the light most favorable to the non-movant.

Mindes Test Has No Place

The district court granted summary judgment on Aikens’ claim for equitable relief, relying on Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), which sets forth a four-factor test for reviewability of claims based on internal military affairs. Though in his reply brief, Aikens only requests damages, when he first sued von Jess and Ingram, Aikens also requested equitable relief. Typically, Mindes is only applicable to claims for equitable relief, but Aikens abandoned his claim for equitable relief. Further, the Fourth Circuit found that the Mindes test was inapplicable in this case because, in the Fourth Circuit, the Mindes test has only been applied to internal personnel matters, such as challenges to convening of retention boards and military discharge, which is not similar to the case here of improper email monitoring.

Feres Test Applies to § 1983 Claims

The Fourth Circuit looked at the evolution of the Feres test to determine if Feres barred Aikens from seeking damages under 42 U.S.C. § 1983. Feres first applied to Federal Tort Claims Acts claims, barring government liability for injuries to service persons where the injuries arise out of or are in the course of activity incident to service. The Supreme Court then extended the Feres “incident to service” test to causes of action outside the Federal Tort Claims Act, including for Bivens actions, or constitutional claims brought against federal officers. However, neither the Supreme Court nor the Fourth Circuit had extended the Feres test to apply to constitutional claims brought against state officers under 42 U.S.C. § 1983.

In this case, the Fourth Circuit decided to the Feres test to § 1983 actions against state officers for two reasons. First, suits under § 1983 and Bivens address constitutional violations by government officials, it is logical to extend the Feres test to § 1983 actions when it applies to Bivens actions. Second, courts generally do not expand liability for injuries arising out of military service to maintain separation of powers. Accordingly, the court decided not to allow damages actions pursuant to § 1983 against state officials for injuries suffered incident to service, which is foreclosed against federal officials, when Congress has not expressly authorized them.

Feres Test Applies to Aikens’ Injuries

The Fourth Circuit then addressed whether the Feres test applied to the case at hand by determining whether the search and seizure of Aikens’ emails arose out or of were in the course of activity incident to service. To determine whether Feres applies, courts look to whether specific suits call into question military discipline and decision-making, requiring judicial intrusion upon military matters. The Supreme Court interprets the Feres test broadly. The Feres test applies to all injuries suffered by military personnel that are even remotely related to the individual’s status as a member of the military. Application of the Feres test does not require that the plaintiff be on duty and does not depend on the military status of the defendant.

Accordingly, the Fourth Circuit concluded that Aikens’ alleged injuries arose out of activity incident to service because he was on active duty, was deployed in a war zone, and used a computer system set up by the Department of Defense for military personnel. The Court noted that it was irrelevant that Aikens was a National Guardsman because he was serving in a federal capacity when he was called to active duty. Further, the Court found irrelevant that von Jess and Ingram were not in Aiken’s direct chain of command.

Nevertheless, the Court abstained from reviewing Aikens’ § 1983 claim based on the Feres “incident to service” test. Accordingly, the Fourth Circuit affirmed the district court’s dismissal of Aikens’ case.