Elgin v. US

Decision Date11 March 2010
Docket NumberCivil Action No. 07-12391-DPW.
Citation697 F. Supp.2d 187
PartiesMichael 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.
CourtU.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.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, District Judge.

The Plaintiffs are male U.S. residents who lost or were denied employment positions in federal agencies, pursuant to 5 U.S.C. § 3328, for having failed to register for military service with the Selective Service System as required by federal law. In a January 26, 2009 Memorandum and Order, I determined that 5 U.S.C. § 3328 was an unconstitutional bill of attainder. Elgin v. United States, 594 F.Supp.2d 133 (D.Mass.2009). The case is now before me on three motions: the motion by the Defendants to reconsider the Court's bill of attainder determination, the Plaintiffs' motion for a preliminary injunction, and the Plaintiffs' motion to certify a class for purposes of Fed.R.Civ.P. 23. Because I will grant the Defendant's motion for reconsideration and dismiss the case, I do not address Plaintiffs' motions, which will be rendered moot.

I. BACKGROUND

The background of the case was recited in detail in the January 26, 2009 Memorandum, consequently I need offer only a brief discussion here. The Plaintiffs are male U.S. residents age twenty-six or older, each of whom was employed by a federal agency. Each lost his position as a result of failing to register with the Selective Service System. The Military Selective Service Act ("MSSA") requires every male resident between the ages of eighteen and twenty-six to register with the Selective Service, 50 App. U.S.C. § 453(a), while 5 U.S.C. § 3328 states that anyone who knowingly or willfully did not register shall be ineligible for employment with an executive agency. 5 U.S.C. § 3328.

The Plaintiffs' Amended Complaint has two counts, Count One alleging that § 3328 is an unconstitutional bill of attainder, and Count Two alleging that the male-only classification in the MSSA discriminates on the basis of sex, in violation of equal protection. In the January 26, 2009 Memorandum, I dismissed Count Two from the case, Elgin, 594 F.Supp.2d at 145-48, but I granted the Plaintiffs' motion for partial summary judgment as to Count One, finding that 5 U.S.C. § 3328 operates as an unconstitutional bill of attainder for those men who were no longer eligible to register with the Selective Service System. Id. at 138-45.

II. MOTION FOR RECONSIDERATION

The Defendants move for reconsideration pursuant to Fed.R.Civ.P. 59(e). The Defendants maintain that the determination was in error for two reasons: first, that this Court does not have subject matter jurisdiction over the Plaintiffs' claims; and second, even if there is subject matter jurisdiction, it was an error of law to find that 5 U.S.C. § 3328 was an unconstitutional bill of attainder. Necessarily, I must address subject matter jurisdiction before taking up again the merits of the bill of attainder claim.

A. Standard of Review

A district court has "substantial discretion and broad authority to grant or deny" a motion for reconsideration. Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 81 (1st Cir.2008). A court may grant a motion for reconsideration "where the movant shows a manifest error of law or newly discovered evidence." Id. at 81-82 (quoting Kansky v. Coca-Cola Bottling Co. of New England, 492 F.3d 54, 60 (1st Cir.2007)). A motion for reconsideration should also be granted if the court has "patently misunderstood" a party, or if the court made an error "not of reasoning but of apprehension." Ruiz Rivera, 521 F.3d at 82 (internal quotations omitted).

B. Subject Matter Jurisdiction

The Defendants now contend for the first time in their motion for reconsideration that this Court lacks subject matter jurisdiction to hear the Plaintiffs' constitutional challenge to 5 U.S.C. § 3328.1 The Defendants argue first that the Court of Appeals for the Federal Circuit has exclusive jurisdiction over the Plaintiffs' claims, under the Civil Service Reform Act of 1978 ("CSRA"), Pub.L. No. 95-454, 92 Stat. 1111 (codified in scattered sections of 5 U.S.C.). Second, they argue that even if this Court could have jurisdiction in such matters, it cannot hear this case because the Plaintiffs have failed to exhaust their remedies under the CSRA.

1. Federal Court Jurisdiction

The Defendants' current position is that the Merit Systems Protection Board ("MSPB" or "Board") has jurisdiction to hear the Plaintiffs' claims under the CSRA, and that the Federal Circuit has exclusive jurisdiction to hear MSPB appeals, leaving this Court with no jurisdiction over the claims. Federal courts have jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Because the Plaintiffs' challenge arises under the Constitution, "the question, then, is not whether the CSRA confers jurisdiction, but whether the CSRA removes the jurisdiction given to certain federal courts," Whitman v. Dep't of Transportation, 547 U.S. 512, 514, 126 S.Ct. 2014, 164 L.Ed.2d 771 (2006) (per curiam), and vests that jurisdiction elsewhere.

a. Administrative Review Under the CSRA

Congress passed the CSRA in 1978 "to replace the haphazard arrangements for administrative and judicial review of personnel action." United States v. Fausto, 484 U.S. 439, 444, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). The CSRA "prescribes in great detail the protections and remedies applicable to adverse personnel actions against federal employees, including the availability of administrative and judicial review." Id. at 443, 108 S.Ct. 668.

The CSRA has several provisions governing personnel actions taken by an administrative agency. Chapter 43 of the CSRA governs personnel actions based on unacceptable job performance. 5 U.S.C. § 4301. An agency may remove an employee for unacceptable performance, as long as the employee receives certain procedural protections. § 4303(a), (b). Chapter 23 forbids an agency from engaging in "prohibited personnel practice," such as unlawful discrimination, political coercion, nepotism, and retaliation against whistle-blowers. 5 U.S.C. § 2302(b). Under Chapter 75 of the CSRA, an agency may engage in the removal of an employee "only for such cause as will promote the efficiency of the service." 5 U.S.C. § 7513(a); see Fausto, 484 U.S. at 445-46, 108 S.Ct. 668 (discussing the appeal provisions of Chapters 43, 23 and 75).

The MSPB is charged by statute with jurisdiction over some of the personnel actions taken under these Chapters. The MSPB "shall hear, adjudicate, or provide for the hearing or adjudication, of all matters within the jurisdiction of the Board under title 5, chapter 43 of title 38, or any other law, rule, or regulation, and, subject to otherwise applicable provisions of law, take final action on any such matter." 5 U.S.C. § 1204. The MSPB has jurisdiction over appeals of Chapter 75 removals promoting the efficiency of the civil service. § 7513(d); 5 C.F.R. § 1201.3(a)(1), (2). The MSPB's administrative review, however, has some limitations. For instance, a right of appeal for Chapter 43 actions is not provided to every affected employee; only competitive service employee2 and preference eligible members of the excepted service3 can appeal decisions to the MSPB. 5 U.S.C. § 4303(e).

Once an eligible employee or applicant for employment has received an MSPB "final order or decision" that adversely affects him, he may then obtain judicial review of the decision. 5 U.S.C. § 7703(a)(1). A petition for review of an MSPB decision must be filed in the Federal Circuit, § 7703(b)(1), which has exclusive jurisdiction over appeals from final orders and decisions of the MSPB. 28 U.S.C. § 1295(a)(9).

b. Jurisdiction over the § 3328 Challenge

Federal regulations outline the procedure for determining whether an individual is eligible for agency employment under 5 U.S.C. § 3328. 5 C.F.R. § 300.705 (1999). If an individual is age twenty-six or over, and has failed to register, the agency provides the individual with written notice that he is ineligible for agency appointment unless his failure to register was neither knowing nor willful. 5 C.F.R. § 300.705(d)(1). The individual can then submit a written request for the Office of Personnel Management ("OPM") to decide whether failure to register was knowing and willful. Id. The applicant has the burden to prove that his failure to register "was neither knowing nor willful," otherwise the individual is deemed not eligible for federal employment. 5 C.F.R. § 300.705(e); § 300.706(a).

In this case, the Plaintiffs' challenge is not to the OPM determinations that their failure to register was knowing or willful, but rather to the constitutionality of the statute itself. Although the Defendants contend that the MSPB has jurisdiction to hear the Plaintiffs' constitutional challenge of 5 U.S.C. § 3328, they have not shown which provision of the CSRA creates this jurisdiction and I find none.

The Defendants seem to base their jurisdictional claim on Chapter 75, but a Chapter 75 personnel action is not involved in § 3328 ineligibility determinations. When the employing agencies and the OPM determined that the Plaintiffs were ineligible for federal employment for failure to comply with the Selective Service registration requirement, the decision was not for "such cause as will promote the efficiency of the service," 5 U.S.C. § 7513(a), and therefore does not fall under the Chapter 75 grant of MSPB jurisdiction. The ineligibility determination...

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3 cases
  • Elgin v. U.S. Dep't of The Treasury
    • United States
    • U.S. Court of Appeals — First Circuit
    • 8 April 2011
    ...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 ......
  • Elgin v. Dep't of the Treasury
    • United States
    • U.S. Supreme Court
    • 11 June 2012
    ...respondents' argument that it lacked jurisdiction and denied petitioners' constitutional claims on the merits. See Elgin v. United States, 697 F.Supp.2d 187 (D.Mass.2010). The District Court held that the CSRA did not preclude it from hearing petitioners' claims, because the MSPB had no aut......
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    • United States
    • Federal Labor Relations Authority Decisions
    • 29 August 2014
    ... ... 385, 386 (1985) (uncle in the chain of ... command of nephew constitutes a prohibited personnel ... practice under 5 U.S.C. § 2302(b)(7)); (emphasis added); ... U.S. v. Fausto , 484 U.S. 439, 446 (1988); U.S ... Dep’t of HHS v. FLRA , 858 F.2d 1278, 1280 (CA 7 ... 1988); Elgin v. United States , 697 F.Supp.2d 187, ... 191 (D.Mass. 2010); Burch v. U.S ., 99 Fed.Cl. 377, ... 382 (Fed. Cl. 2011); Dachman v. United States , 73 ... Fed.Cl. 508, 517 (Fed.Cl. 2006); Graf v. DOL , 111 ... M.S.P.R. 444, 448 (2009) ... [ 2 ] 5 U.S.C. § 3110(b) (in pertinent ... part) ... ...

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