U.S. High Court Hears Arguments On Jurisdiction Of Federal Employees’ Suit

U.S. High Court Hears Arguments On Jurisdiction Of Federal Employees’ Suit

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.

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 an 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 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 Court.

Government's Argument

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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