Justices to Consider if Civil Service Law Provides Ex-Federal
Workers' Exclusive Remedy

Posted October 17, 2011, 1:14 P.M. ET

The U.S. Supreme Court today agreed to decide whether the Civil Service Reform Act provides the exclusive remedy for former federal employees who contend that their constitutional rights were violated when they were removed from federal service for failure to register for the draft by age 26 (Elgin v. Dep't of the Treasury, U.S., No. 11-45, cert. granted 10/17/11).

Granting a petition for review filed by four former federal employees, the justices will review a U.S. Court of Appeals for the First Circuit decision holding that the plaintiffs must assert their constitutional claims before the Merit Systems Protection Board (MSPB) rather than sue directly in federal district court (641 F.3d 6 (1st Cir. 2011)).

The plaintiffs had sought reinstatement following their terminations or constructive discharges under a statute prohibiting federal government employment of individuals who “knowingly and willfully” fail to register for the draft by age 26.

The plaintiffs argued that the federal law, codified as 5 U.S.C. § 3328, was an unconstitutional bill of attainder and violated their Fifth Amendment equal protection rights. A federal district court in Massachusetts initially ruled for the plaintiffs on their bill of attainder claim, but denied their equal protection claim. The district court subsequently granted the federal government's motion for reconsideration and held the plaintiffs lacked a bill of attainder claim too.

In a 2-1 decision on appeal, the First Circuit ruled that the district court should not have considered the plaintiffs' constitutional claims because it lacked subject matter jurisdiction. Instead, the First Circuit said the Civil Service Reform Act provided the plaintiffs' exclusive remedy for alleged constitutional violations and they must press such claims before MSPB.

In seeking Supreme Court review, the former Treasury employees urged the justices to revolve a purported conflict among federal courts of appeal on whether the Civil Service Reform Act by implication precludes federal district courts from considering constitutional claims raised by ex-federal employees seeking the equitable remedy of reinstatement.

In a brief opposing review, the Justice Department argued that the First Circuit correctly concluded that the Civil Service Reform Act provides the petitioners' avenue to challenge their terminations and precludes a district court suit challenging the relevant federal agency's actions on constitutional grounds. That decision is consistent with Supreme Court precedent and the majority of federal circuit court rulings, the Justice Department contended.