As reported last fall on this blog, 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 al., a case involving a group of federal employees who were terminated and/or had job offers rescinded because of their failure to register with the Selective Service.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.
Unfortunately, the appeal did not involve the merits of the constitutional issues raised by the former employees who claimed that the registration requirement set forth in the Military Selective Service Act is an unconstitutional bill of attainder and discriminates on the basis of gender because only males are required to register. Rather, the appeal only concerned the narrow issue 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.
On June 11, 2012, the U.S. Supreme Court issued its decision in Elgin, affirming the First Circuit's holding that an employee challenging his removal from the civil service must pursue his claim before the Merit Systems Protection Board (MSPB), with judicial review in the Federal Circuit, even if the basis for the employee's claim is that the statute under which he was removed is facially unconstitutional. According to the Court, this method for seeking relief is the exclusive remedy for an employee under the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq.