WASHINGTON, D.C. - (Mealey's) The U.S. Congress, through
the Civil Service Reform Act (CSRA), did not revoke the district courts'
jurisdiction over lawsuits brought by federal employees seeking to declare acts
of Congress unconstitutional, the attorney representing four former federal
employees argued Feb. 27 before the U.S. Supreme Court (Michael B. Elgin, et
al. v. Department of the Treasury, et al., No. 11-45, U.S. Sup.).
"First, the Civil Service Reform Act doesn't say that it
precludes section 1331 jurisdiction. Congress could have said so.
Congress didn't say so. And there's no inference of preclusion of the
Petitioners' claims that's fairly discernible from the scheme itself. And
that's because challenges to constitutionality of statutes are just not the
type of claims that are reviewed through the CSRA scheme," Harvey A. Schwartz
of Rodgers, Powers & Schwartz in Boston
argued on behalf of the former employees.
A federal statute bars employment in the Executive Branch
of citizens and resident aliens who were required to register for the draft
with the Selective Service System and who "knowingly and willfully" did not do
so before age 26.
Four people employed by federal agencies, three of whom
were discharged after it was discovered that they had not registered and one
who resigned when confronted about his failure to register, sued the U.S.
Department of the Treasury, the U.S. Department of the Interior and the United States
in the U.S. District Court for the District of Massachusetts. The four,
with Michael B. Elgin as the lead plaintiff, sought reinstatement, claiming
that the statutory bar is unconstitutional by allegedly being a forbidden bill
of attainder under Article I, Section 9, Clause 3, of the U.S. Constitution and
that because it applies to men but not women, it is an unlawful discrimination
under the equal protection component of the Fifth Amendment.
The District Court ruled for the government, and the
plaintiffs appealed. The First Circuit U.S. Court of Appeals vacated the
District Court ruling. It opined that the CSRA governs removals and that
the plaintiffs must follow that scheme through the Merit Systems Protection
Board (MSPB) into the Federal Circuit U.S. Court of Appeals. It rejected
the plaintiffs' argument that because their suit attacks the underlying
statute, the MSPB cannot provide relief and, therefore, that the premise that
the CSRA remedy is exclusive does not apply to the present case. "[W]hile
the Board may be powerless to strike down the statute, the Federal Circuit on
review of the Board may do so, 5 U.S.C. § 7703(c), and, if it agreed with the
plaintiffs on the merits, remand to the Board to grant relief. . .
. Accordingly, the CSRA regime does provide an opportunity for the
plaintiffs to obtain a full determination of their facial constitutional
challenge," the First Circuit panel held.
The former government workers petitioned the U.S. Supreme
Arguing on behalf of the government, Assistant to the
Solicitor General Eric J. Feigin told the high court that the proper procedure
is already in place and should be left untouched. In response to a
question by Justice Elena Kagan about why the scope of the MSPB's authority
shouldn't be the test for determining where a lawsuit should be filed, Feigin
said, "I think using that as a test would lead to unclear and easily
manipulated jurisdictional rules. Among other things, it often won't be
clear up front whether the MSPB can resolve an employee's claim or not. A
claim that appears at first blush to challenge a statute's constitutionality
might be resolved, for instance, by interpreting the statute to avoid the
constitutional question, which is something that the MSPB could do."
When Justice Kagan proposed the idea of asking the MSPB
about each case and whether it had authority, Feigin responded, "Well, I don't
think that's consistent with the CSRA, Your Honor, because the way the CSRA
works is that you go to the MSPB first and then you go to the Federal Circuit."
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