WASHINGTON, D.C. - 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
this morning (Michael B. Elgin, et al. v. Department of the Treasury, et al.,
No. 11-45, U.S. Sup.; See March 2012, Page 45) (lexis.com subscribers may access Supreme Court briefs and the opinion for this case).
"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
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.
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
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
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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