Elgin v. U.S. Dep't of The Treasury

• Decision Date: 08 April 2011
• Docket Number: No. 10–1302.,10–1302.
• Citation: 641 F.3d 6
• Parties: Michael B. ELGIN; Aaron Lawson; Henry Tucker; Christon Colby, on behalf of themselves and similarly situated men throughout the United States, Plaintiffs, Appellants,v.U.S. DEPARTMENT OF the TREASURY; U.S. Department of the Interior; United States, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

641 F.3d 6

Michael B. ELGIN; Aaron Lawson; Henry Tucker; Christon Colby, on behalf of themselves and similarly situated men throughout the United States, Plaintiffs, Appellants,

v.U.S. DEPARTMENT OF the TREASURY; U.S. Department of the Interior; United States, Defendants, Appellees.

No. 10–1302.

United States Court of Appeals, First Circuit.

Heard Dec. 8, 2010.Decided April 8, 2011.

Harvey A. Schwartz with whom Rodgers, Powers & Schwartz was on brief for appellants.Jeffrey Clair, Civil Division, Department of Justice, with whom Michael S. Raab, Civil Division, Department of Justice, Tony West, Assistant Attorney General, and Carmen Ortiz, United States Attorney, were on brief for appellees.Before BOUDIN, STAHL and HOWARD, Circuit Judges.BOUDIN, Circuit Judge.

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 twenty-six. In the district court, four plaintiffs, who are male United States citizens over age twenty-six, sought to challenge this statutory bar on constitutional grounds, failed on the merits, and now appeal.

The statutory bar reads as follows:

An individual—

(1) who was born after December 31, 1959, and is or was required to register under section 3 of the Military Selective Service Act (50 U.S.C. App. 453); and

(2) who is not so registered or knowingly and willfully did not so register before the requirement terminated or became inapplicable to the individual,

shall be ineligible for appointment to a position in an Executive agency.

5 U.S.C. § 3328(a) (2006).¹ Section 3 of the Military Selective Service Act, 62 Stat. 604, 605, as amended, 50 U.S.C. app. § 453 (2006), empowers the President to require every male citizen and male resident alien between the ages of eighteen and twenty-six to register for the draft. In 1980, President Carter reinstituted the registration requirements for young men. Proclamation No. 4771, 3 C.F.R. 82 (1981), reprinted as amended in 50 U.S.C. app. § 453 app. at 59–60.

The Office of Personnel Management (“OPM”), which manages civil service employment in the Executive Branch, has adopted corresponding regulations. 5 C.F.R. §§ 300.701–.707 (2010). These regulations provide that a civil service employee who was required to register

will be terminated by his agency under the authority of the statute and these regulations if he has not registered as required, unless he registers or unless, if no longer eligible to register, OPM determines in response to his explanation that his failure to register was neither knowing nor willful.

Id. § 300.707.

Three of the plaintiffs in this case were discharged by their federal agencies when it was discovered that they had not registered although required to do so; the fourth resigned when confronted with his failure to register and says that his resignation was forced by the statutory bar. None of the four presently challenges the premise that his failure to register was knowing or willful, and none sought to pursue to the end the statutory remedies prescribed for civil service employees who dispute their removals.

Instead, the plaintiffs brought an original action in the district court seeking reinstatement and claiming that the statutory bar is unconstitutional; the grounds asserted are that it is both a forbidden bill of attainder under Article I, Section 9, Clause 3 of the Constitution and, because it applies to men but not women, an unlawful discrimination under the equal protection component of the Fifth Amendment. The latter claim has already been rejected by the Supreme Court, Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981), but the plaintiffs may intend to ask the Court to revisit the ruling.

In the district court, the government asserted that the claims were barred because the plaintiffs had a statutory route to dispute their removals or forced resignation and that this route was intended by Congress to be exclusive for cases covered by the statutory remedy. This statutory remedy, which will be described in more detail hereafter, ordinarily leads through the Merit Systems Protection Board (“MSPB” or “Board”) and, on judicial review, to the U.S. Court of Appeals for the Federal Circuit. Three of the four plaintiffs did not pursue this avenue; one did but abandoned it after an adverse decision by the MSPB administrative law judge.

The district court declined to dismiss the action on jurisdictional grounds, initially sided with the plaintiffs on the bill of attainder issue, and ultimately reversed ground and decided against the plaintiffs on their constitutional claims. Elgin v. United States, 594 F.Supp.2d 133 (D.Mass.2009), vacated, 697 F.Supp.2d 187 (D.Mass.2010). The plaintiffs now seek review in this court; the government continues to argue both that the district court had no jurisdiction and that, if it did, the statutory bar is constitutional. An objection to subject matter jurisdiction takes priority, and we begin (and end) with that issue.

Ordinarily, and as a default remedy, a district court has authority as a federal court of general jurisdiction—subject to various limitations—to consider claims against federal government officials that they are acting unconstitutionally and should be enjoined. See 28 U.S.C. § 1331 (2006); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 701–02, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). Suits against the federal government itself or its departments—the plaintiffs' target here—are complicated by sovereign immunity considerations, see, e.g., FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), but the government has invoked no such defense in this case, see 5 U.S.C. § 702; Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

Instead, the government argues the exclusive remedy for the removal or forced resignation of the four plaintiffs is provided by the Civil Service Reform Act (“CSRA”), Pub.L. No. 95–454, 92 Stat. 1111 (1978) (codified as amended in scattered sections of 5 U.S.C.). The CSRA scheme, set forth in Title 5, Chapter 75, Subchapter II and augmented by regulations, allows certain employees in the civil service—including those (such as the plaintiffs) in the competitive service—to seek review if they are removed “for such cause as will promote the efficiency of the service,” 5 U.S.C. § 7513(a); the route prescribed is by appeal to the MSPB and, if dissatisfied with the result, appeal to the Federal Circuit, whose decisions in turn are reviewable by the Supreme Court.²

Although the CSRA does not in terms describe this scheme as exclusive of other remedies, Congress intended the scheme— at least where it applies and provides a mechanism for administrative and judicial review and relief—to be exclusive of ordinary district court actions to challenge a removal. The Supreme Court has suggested that this is so, United States v. Fausto, 484 U.S. 439, 443–55, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988); see also Bush v. Lucas, 462 U.S. 367, 388–89, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); we have recognized it to be so, Berrios v. Dep't of the Army, 884 F.2d 28, 31 (1st Cir.1989); and the legislative history bears out this intention, S.Rep. No. 95–969, at 9–10, 53, 63 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2731–32, 2775, 2785.

The plaintiffs do not contest the view that the statutory route, where it applies, is the exclusive remedy for an employee challenging removal; but they argue that the government has taken inconsistent positions and that, in any event, for various reasons the statutory remedy is not available to them. However, the statutory route does in fact give the plaintiffs a route to direct review of their constitutional claims by an Article III court; Congress intended that route to be exclusive in removal cases; and, despite some confusion in the precedents, both literal language and Congress' policy require that result.

First, the plaintiffs suggest that the government's objection is foreclosed because (a) it resisted efforts by one of the plaintiffs to raise this very kind of claim through the MSPB route, and (b) it has raised the subject matter jurisdiction claim only on reconsideration in the district court. But, as it turns out, the government is within its rights to raise the objection: subject matter jurisdiction claims are not waivable and may be raised for the first time even on direct appeal, Fed.R.Civ.P. 12(h)(3); United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002).

Failure to exhaust administrative remedies is a waivable objection. Global NAPs, Inc. v. Verizon New Eng. Inc., 603 F.3d 71, 85 (1st Cir.2010). But, if the CSRA remedy is available and intended to be exclusive, it does not prescribe some administrative step required before resorting to district court, e.g., Woodford v. Ngo, 548 U.S. 81, 88–89, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); rather, the remedy displaces the plenary district court action entirely, just as a statute channeling agency review to a circuit court displaces a direct review action in the district court. See Whitman v. Dep't of Transp., 547 U.S. 512, 513–14, 126 S.Ct. 2014, 164 L.Ed.2d 771 (2006) (per curiam).

Second, the remedy in Chapter 75, Subchapter II applies to removals “for such cause as will promote the efficiency of the service,” 5 U.S.C. § 7513(a), and the question arises whether removal on account of the statutory bar falls in that category. Arguing that section 7513(a) is limited to misconduct, the plaintiffs cite Supreme Court language stating that “Chapter 75 of the Act governs adverse action taken against employees for the ‘efficiency of the service,’ which includes action of the type taken here, based on misconduct,” Fausto, 484 U.S. at 446, 108 S.Ct. 668. However, “includes” does not mean “limited to.”

The CSRA is a...