U.S. High Court Issues Split Ruling On Jurisdiction Of Federal Employees' Suit

WASHINGTON, D.C. - (Mealey's) The Civil Service Reform Act (CSRA) precludes district court jurisdiction over claims by federal employees seeking to declare acts of Congress unconstitutional, a split U.S. Supreme Court ruled June 11 (Michael B. Elgin, et al. v. Department of the Treasury, et al., No. 11-45, U.S. Sup.). 

(Opinion available. Document #73-120713-002Z.) 

"In sum, the CSRA grants the MSPB [Merit Systems Protection Board] and the Federal Circuit jurisdiction over petitioners' appeal because they are covered employees challenging a covered adverse employment action.  Within the CSRA review scheme, the Federal Circuit has authority to consider and decide petitioners' constitutional claims.  To the extent such challenges require factual development, the CSRA equips the MSPB with tools to create the necessary record.  Thus, petitioners' constitutional claims can receive meaningful review within the CSRA scheme," Justice Clarence Thomas wrote for the majority. 

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Stephen G. Breyer and Sonia Sotomayor joined in the majority opinion.  

Draft Registration 

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 unlawful discrimination under the equal protection component of the Fifth Amendment. 

CSRA Remedy 

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 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, 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 Court. 

Dissenting Opinion 

Parting ways with the Supreme Court majority, Justice Samuel Anthony Alito Jr. authored the dissent opinion in which he opined that the federal workers' claims are the type Congress intended to channel through the MSPB.  "The Board's mission is to adjudicate fact-specific employment disputes within the existing framework.  By contrast, petitioners argue that one key provision of that framework is facially unconstitutional.  Not only does the Board lack authority to adjudicate facial constitutional challenges, but such challenges are wholly collateral to the type of claims that the Board is authorized to hear. 

"The majority attempts to defend its holding by noting that, although the Board cannot consider petitioners' claims, petitioners may appeal from the Board to the Federal Circuit, which does have the authority to address facial constitutional claims.  But that does not cure the oddity of requiring such claims to be filed initially before the Board, which can do nothing but pass them along unaddressed, leaving the Federal Circuit to act as a court of first review, but with little capacity for factfinding," Justice Alito wrote. 

Justices Ruth Bader Ginsburg and Elena Kagan joined in the dissent.  

Harvey A. Schwartz of Rodgers, Powers & Schwartz in Boston represents the federal employees.  Solicitor General Donald B. Verrilli Jr. and Assistant to the Solicitor General Eric J. Feigin in Washington represent the United States. 

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