Elgin v. U.S., 07-12391-DPW.
| Citation | 594 F.Supp.2d 133 |
| Decision Date | 26 January 2009 |
| Docket Number | No. 07-12391-DPW.,07-12391-DPW. |
| Parties | Michael B. ELGIN, Aaron Lawson, Henry Tucker and Christon Colby on behalf of themselves and similarly situated men throughout the United States, Plaintiffs, v. UNITED STATES of America, United States Department of the Treasury, and United States Department of the Interior, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Lori A. Jodoin, Harvey A. Schwartz, Rodgers, Powers & Schwartz LLP, Boston, MA, for Plaintiffs.
Jennifer A. Serafyn, United States Attorney's Office, Boston, MA, for Defendants.
The Military Selective Service Act (the "MSSA"), 50 App. U.S.C. §§ 451-473, requires that men register with the Selective Service System between the ages of eighteen and twenty-six. 50 App. U.S.C. § 453(a). A separate federal statute, 5 U.S.C. § 3328(a)(2), provides that men who knowingly and willfully fail to register under the MSSA are ineligible for employment by a federal executive agency. The four Plaintiffs in this suit seek to maintain employment with the federal government. They were barred from doing so because they failed to register for the military draft with the Selective Service System. When that employment bar was imposed upon them, it was no longer possible for any of them to register.
In Count One of their Amended Complaint, the Plaintiffs allege that the employment bar imposed by § 3328 is an unconstitutional bill of attainder. Plaintiffs allege in Count Two that the MSSA, which requires men—but not women—to register with the Selective Service System, violates the equal protection obligation of the Constitution. The Defendants have moved to dismiss both Counts pursuant to Fed.R.Civ.P. 12(b)(6), and the Plaintiffs have moved for partial summary judgment as to Count One.
The registration provisions of the MSSA have already occasioned unsuccessful challenges in the Supreme Court based upon the Constitution's prohibition of bills of attainder, Selective Service System v. Minnesota Public Interest Research Group ("MPIRG"), 468 U.S. 841, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984), and the Constitution's equal protection guarantee, Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981). But the statutory employment bar at issue before me is materially different from the loan disqualification challenged in MPIRG and I find that the Court's MPIRG analysis actually supports the bill of attainder claim here. By contrast, there has not been a sufficient change in the material circumstances underpinning the Court's equal protection analysis in Rostker to justify relitigation of the issue at this time in this case. Accordingly, while I will grant partial summary judgment to the Plaintiffs on the bill of attainder claim of Count One, I will also grant the Defendants' motion to dismiss as to the equal protection challenge.
The Military Selective Service Act authorizes the President to require male citizens and residents of the United States to register for the draft. The MSSA states that "it shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who ... is between the ages of eighteen and twenty-six, to present himself for and submit to registration...." 50 App. U.S.C. § 453(a). The Selective Service System, the institution responsible for the registration process, became inactive in 1975 when President Ford discontinued draft registration. In 1980, Congress, at the request of President Carter, reactivated the registration process for male citizens and residents. Rostker, 453 U.S. at 60-61, 101 S.Ct. 2646 (citing Pub. L. 96-282, 94 Stat. 552 (1980)). President Carter then issued a Proclamation requiring registration for male citizens and residents born on or after February 1, 1960 who attained their eighteenth birthday. Proclamation No. 4771, 45 Fed.Reg. 45,247 (July 2, 1980).
In 1985, Congress created negative employment consequences through § 3328 for failing to register with the Selective Service System. The statute provided that an individual who is required to register under the MSSA, and who "knowingly and willfully" does not do so, "shall be ineligible for appointment to a position in an Executive agency." 5 U.S.C. § 3328(a).
The Plaintiffs in this case each sought to maintain employment with an executive agency of the federal government; it is undisputed1 that each was denied a federal executive position when the relevant agency employer discovered that the Plaintiff at issue had not registered with the Selective Service System.
Michael Elgin was hired by the Internal Revenue Service ("IRS") in 1991, when he was around twenty-five. On February 22, 2007, the Office of Personnel Management ("OPM") found that Elgin was ineligible for IRS employment because he failed to register with the Selective Service System. He was around forty-one at the time he lost his job.2
Aaron Lawson, thirty-two, began working at the Bureau of Land Management in 2003 when he was around twenty-six. He has been notified that his employment will be terminated as a result of his failure to register with the Selective Service System.3
Henry Tucker worked for the Federal Deposit Insurance Corporation ("FDIC") for seventeen years. An offer to work at the National Institutes of Health ("NIH"), extended in 2007, was withdrawn when the NIH learned that Tucker had never registered with the Selective Service System.4
Christon Colby was employed by the IRS for more than five years. In 2006, when Colby was around thirty years old, the OPM determined he had knowingly and willfully failed to register for the draft, and was not eligible for federal agency employment.
On a motion to dismiss, I "accept[ ] the complaint's well-pleaded facts as true and indulg[e] all reasonable inferences in the plaintiff's favor." Cook v. Gates, 528 F.3d 42, 48 (1st Cir.2008). A complaint, to survive a motion to dismiss, "must allege `a plausible entitlement to relief.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1967, 167 L.Ed.2d 929 (2007)).
I review a motion for summary judgment viewing the facts and making reasonable inferences in the light most favorable to the nonmoving party. Cordi-Allen v. Conlon, 494 F.3d 245, 250 (1st Cir.2007). The movants must show that they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Their motion for partial summary judgment based on a facial challenge confronts an additional hurdle. A facial challenge, "the most difficult challenge to mount successfully," requires the movant to show that "no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).
The Plaintiffs allege that 5 U.S.C. § 3328 is an unconstitutional bill of attainder that legislatively punishes men age twenty-six and older who failed to register for the Selective Service System. The Plaintiffs present this claim as a facial challenge to the statute.
Article I of the U.S. Constitution states: "No bill of attainder or ex post facto law shall be passed." U.S. Const., Art. I, § 9, cl. 3. A bill of attainder is "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977).
The Constitution's prohibition of bills of attainder was motivated by rejection of practices of the English Parliament, which periodically punished specifically designated persons or groups without trial. United States v. Brown, 381 U.S. 437, 447, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965) (). Although bills of attainder have traditionally identified persons by name for punishment, they may also include designations of groups of persons according to past conduct. MPIRG, 468 U.S. at 847, 104 S.Ct. 3348. The Bill of Attainder Clause not only protects individuals from legislative punishment, but also serves an important function in preserving the separation of powers. The Clause acts as "a general safeguard against legislative exercise of the judicial function, or more simply—trial by legislature." Brown, 381 U.S. at 442, 85 S.Ct. 1707.
The Supreme Court has identified three requirements for a statute to qualify as an unconstitutional bill of attainder: specification of the affected persons; punishment; and lack of a meaningful judicial role. MPIRG, 468 U.S. at 847, 104 S.Ct. 3348.
The specification requirement is satisfied when the statute either identifies individuals by name or as ascertainable members of a group based on past conduct. MPIRG, 468 U.S. at 847, 104 S.Ct. 3348. A statute targeting groups based on past conduct can be a bill of attainder when the conduct "serves as `a point of reference for the ascertainment of particular persons ineluctably designated by the legislature' for punishment." Id. (quoting Communist Party of the United States v. Subversive Activities Control Bd., 367 U.S. 1, 86, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961)).
Courts have identified several "guideposts" to help determine whether the specification requirement has been met. See SeaRiver Maritime Fin. Holdings v. Mineta, 309 F.3d 662, 669 (9th Cir.2002). One guidepost is whether the statute targets individuals or a class based on past conduct which operates as a designation of particular persons. MPIRG, 468 U.S. at 847, 104 S.Ct. 3348; SeaRiver Maritime, 309 F.3d at 670. It is uncontested that the individuals affected by § 3328 are determined by their past acts (or more accurately, by their past failures to act).
Another guidepost is whether the past conduct consists of "irreversible acts." MPIRG, 468 U.S. at 848, 104...
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