On October 17, 2011, the United States Supreme Court agreed to hear Elgin et. al. v. United States Department of the Treasury, et. al., a case involving a group of federal employees who were terminated and/or had job offers rescinded because of their failure to register with the Selective Service. Some of these employees, like many of our clients, simply never learned of the Selective Service registration requirement while they were still eligible to register. One employee believed he had registered, but Selective Service had no record of his registration. Again, a fairly common fact pattern.
The employees filed their lawsuit in the federal district court in Massachusetts claiming that 5 U.S.C. Sec. 3328 — the federal statute that imposes a lifetime ban on federal executive agency employment for failing to register with the Selective Service — was an unconstitutional Bill of Attainder and violated their constitutional right to equal protection on the basis of sex (the Selective Service registration requirement only applies to males). Ultimately, the district court ruled against the employees and the matter was appealed to the First Circuit Court of Appeals. The First Circuit vacated the district court's decision but remanded the case and directed the district court to enter a new judgment denying the employees' claims on the basis of a lack of subject matter jurisdiction. In a nutshell, the Court ruled that the Civil Service Reform Act precluded the district court from granting equitable relief for constitutional claims.
The United States Supreme Court agreed to take the case and resolve the split that exists in the various federal Circuit Courts of Appeal on this issue. Unfortunately, the issue that the Supreme Court will examine will be limited to whether federal district courts have jurisdiction over constitutional claims for equitable relief brought by federal employees or whether the Civil Service Reform Act precludes such jurisdiction. In other words, the interesting and potentially game changing constitutional challenges raised in the district court will not be an issue in the case before the Supreme Court. However, in the event the employees are successful before the high court, you can expect these challenges will subsequently wind their way through the federal courts for the next several years.