Elgin, et al v. US Dept of Treasury, et al

Filing

OPINION issued by Michael Boudin, Appellate Judge; Norman H. Stahl, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. [10-1302]

Case: 10-1302 Document: 00116194246 Page: 1

Date Filed: 04/08/2011

Entry ID: 5540518

United States Court of Appeals
For the First Circuit
No. 10-1302
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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Boudin, Stahl and Howard,
Circuit Judges.
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.

April 8, 2011

Case: 10-1302 Document: 00116194246 Page: 2

Date Filed: 04/08/2011

Entry ID: 5540518

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
position in an Executive agency.
5 U.S.C. § 3328(a) (2006).1

to

a

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

1

"Executive agency" is defined to mean an "Executive
department,
a
Government
corporation,
and
an
independent
establishment." 5 U.S.C. § 105.
-2-

Case: 10-1302 Document: 00116194246 Page: 3

Date Filed: 04/08/2011

Entry ID: 5540518

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

resignation was forced by the statutory bar.

says

that

his

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.

-3-

Case: 10-1302 Document: 00116194246 Page: 4

Date Filed: 04/08/2011

Entry ID: 5540518

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

component of the Fifth Amendment.

under

the

equal

protection

The latter claim has already

been rejected by the Supreme Court, Rostker v. Goldberg, 453 U.S.
57 (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

-4-

Case: 10-1302 Document: 00116194246 Page: 5

Date Filed: 04/08/2011

against the plaintiffs on their constitutional claims.

Entry ID: 5540518

Elgin v.

United States, 594 F. Supp. 2d 133 (D. Mass. 2009), vacated, 697
F. Supp. 2d 187 (D. Mass. 2010).
this

court;

the

government

The plaintiffs now seek review in

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 (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 (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 (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. 95454,

92

Stat.

1111

(1978)

sections of 5 U.S.C.).

(codified

as

amended

in

scattered

The CSRA scheme, set forth in Title 5,

-5-

Case: 10-1302 Document: 00116194246 Page: 6

Date Filed: 04/08/2011

Entry ID: 5540518

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

district court actions to challenge a removal.

of

ordinary

The Supreme Court

has suggested that this is so, United States v. Fausto, 484 U.S.
439, 443-55 (1988); see also Bush v. Lucas, 462 U.S. 367, 388-89
(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

2

See 5 U.S.C. §§ 7511-7514, 7701-7703; 5 C.F.R. §§ 752.401.406, 1201.3, 1201.120.
The remedy extends to "forced
resignations"--the claim made by one of the plaintiffs here--which
are treated as constructive "removals." See Carrow v. MSPB, 626
F.3d 1348, 1352-53 (Fed. Cir. 2010).
-6-

Case: 10-1302 Document: 00116194246 Page: 7

Date Filed: 04/08/2011

Entry ID: 5540518

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 (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 (2006); rather, the remedy displaces the
plenary

district

court

action

entirely,

-7-

just

as

a

statute

Case: 10-1302 Document: 00116194246 Page: 8

Date Filed: 04/08/2011

Entry ID: 5540518

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 (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.

However, "includes" does not mean "limited to."
The

CSRA

is

a

successor

to

earlier

civil

service

statutes, including the Lloyd-La Follette Act, which created the
first general statutory protection for civil servants, see Arnett
v.

Kennedy,

416

U.S.

134,

149-50

(1974),

and

used

the

same

"efficiency of [the] service" phrase as the substantive standard
for removal, see Act of Aug. 24, 1912, ch. 389, § 6, 37 Stat. 539,
555 (repealed 1978).

That standard was understood to include

removals that were based on disqualifying conditions that existed
before the employees were hired, and Congress was aware of and
intended to adopt this interpretation.

-8-

Case: 10-1302 Document: 00116194246 Page: 9

Date Filed: 04/08/2011

Entry ID: 5540518

Thus, prior to the CSRA's enactment, the Senate Committee
on Governmental Affairs noted that for covered civil service
employees, "existing law provides that an individual may be removed
only for such cause as will promote the efficiency of the service."
S. Rep. No. 95-969, at 9 (1978), reprinted in 1978 U.S.C.C.A.N.
2723, 2731.

The committee reported that in 1976, 17,157 federal

employees had been dismissed under that standard, and it listed
eight different categories, including 240 "[r]emoved because of
some condition that existed before they were hired."

Id.

In

recommending section 7513, the committee said that it did not
intend any substantive change to the existing law permitting
removals

only

for

"efficiency

of

the

service."

Id.

at

50,

reprinted in 1978 U.S.C.C.A.N. at 2772.
OPM shares this view of the "efficiency of the service"
standard.

In a related part, 5 C.F.R. pt. 731, OPM regulations

discuss the standard for a "suitability action," including a
"removal,"

5

C.F.R.

§

731.203;

the

regulations

state

that

a

suitability action may be taken only to "protect the integrity or
promote the efficiency of the service," id. § 731.201, which
includes "[a]ny statutory or regulatory bar which prevents the
lawful

employment

of

the

person

question," id. § 731.202(b)(8).

involved

in

the

position

in

See also id. § 731.501(a) (right

to appeal suitability action to the MSPB).

-9-

Case: 10-1302 Document: 00116194246 Page: 10

Date Filed: 04/08/2011

Entry ID: 5540518

Third, the plaintiffs question whether the removals in
this case were intended as removals for the "efficiency of the
service."

The removal notices, it appears, cited the statutory

bar, 5 U.S.C. § 3328--not Chapter 75, Subchapter II and the
"efficiency of the service" phrase--but the legislative history and
regulations make clear that a removal because of a statutory bar is
one for the "efficiency of the service," thereby triggering the
opportunity--and obligation--to use the MSPB procedures and to seek
judicial review in the Federal Circuit.
The plaintiffs' contrary suggestion rests on a misreading
of Department of the Navy v. Egan, 484 U.S. 518 (1988).

There, the

Court relied on the ground given in a removal notice to conclude
that the action was taken under the "efficiency of the service"
standard and not on grounds of national security.
n.4, 523.

Id. at 522 &

A national security removal is explicitly exempted from

all "other statutes" and review is narrowly limited.

5 U.S.C.

§ 7532; see id. § 7512(A) (exempting a section 7532 removal); Egan,
484 U.S. at 525-26. Here, no such statutory exemption applies, and
the notice merely particularizes the "efficiency of the service"
basis for the removal.
Fourth, the MSPB has suggested that a person who was
wrongly hired in the face of an absolute statutory bar was never an
"employee" at all because the appointment was void ab initio, and
therefore, when the error is discovered, the person removed is not

-10-

Case: 10-1302 Document: 00116194246 Page: 11

Date Filed: 04/08/2011

a former "employee" who can invoke the CSRA.

Entry ID: 5540518

E.g., Hope v. Dep't

of the Army, 108 M.S.P.R. 6, 9 (2008) (citing cases).

This

"reasoning," see Travaglini v. Dep't of Educ., 18 M.S.P.R. 127,
132-37 (1983), aff'd as modified, 23 M.S.P.R. 417 (1984), underlies
statements by the Board, occasionally noted but not endorsed by the
Federal Circuit,3 that a removal because of an absolute statutory
bar is outside the Board's authority under the CSRA because the
employee should not have been hired in the first place.
This is not the approach taken by modern courts in
construing

remedial

statutes,

and

the

government

should

be

embarrassed ever to have taken advantage of such question begging
rhetoric.

The plaintiffs in this case were hired by the federal

government, served (in some cases for many years) as its employees,
exercised official authority, and were then terminated.

The idea

that Congress would implicitly exclude them from the category of
former "employees" entitled to seek redress under the CSRA--if and

3

In Diamond v. U.S. Agency for International Development, 108
F.3d 312 (Fed. Cir. 1997), the Federal Circuit mentioned the MSPB
assertion, without passing on its validity, saying only that it did
not apply to the case at hand. Id. at 316. In Daneshpayeh v.
Department of the Air Force, No. 93-3476, 1994 WL 18964 (Fed. Cir.
Jan. 26, 1994) (per curiam)--an unpublished, non-precedential
decision, see Fed. Cir. R. 32.1, 36--the Federal Circuit affirmed
an MSPB decision dismissing an appeal based on the supposed rule,
but the court noted that the removed person took "no issue with the
Board's recital of the applicable law" id. at *2, and suggested
doubts as to the "Board's boiler-plate labeling of its decision as
based on a 'lack of jurisdiction,'" id. at *2 n.4.
-11-

Case: 10-1302 Document: 00116194246 Page: 12

Date Filed: 04/08/2011

Entry ID: 5540518

to the extent that their removal was outside a statutory bar or
that the bar was itself unconstitutional--beggars belief.
The CSRA governs "removals"; nothing in its language
suggests that a case involving a statutory bar follows a different
route; and the legislative history already described refutes any
such suggestion.
statutory

bar

and

Of course, if the employee comes within the
the

statutory

bar

is

constitutional,

the

discharged employee will not get reinstated; but the proper outcome
should be a decision denying reinstatement on the merits.

Thus,

the statutory route gives the plaintiff a full opportunity to
present both questions to the Federal Circuit, which is an Article
III court.
Fifth, this brings us at last to the question whether
there is some implied exception to the exclusive CSRA remedy
because the challenge in this case is a constitutional one sounding
in equity or because it is a facial constitutional attack rather
than an "as-applied" challenge.

The Supreme Court has already

ruled that Bivens-type constitutional claims for damages cannot
bypass

CSRA

limitations,

Lucas,

462

U.S.

at

368;

and

as

to

equitable constitutional claims, there is something of a circuit

-12-

Case: 10-1302 Document: 00116194246 Page: 13

Date Filed: 04/08/2011

Entry ID: 5540518

split,4 but this circuit has been firm in treating the CSRA remedy
as exclusive as to equitable constitutional claims as well.
Thus, this court held in Berrios that an employee fired
by the government could not bring a due process claim and other
facial and as-applied constitutional claims by an original action
in the district court but had to follow the CSRA scheme through the
MSPB into the Federal Circuit.
in

this

circuit

reaffirmed

884 F.2d at 31.
the

general

Another decision

rule

but

found

it

inapplicable because the employee's classification excluded him
from the CSRA remedy.

Pathak v. Dep't of Veterans Affairs, 274

F.3d 28, 31-33 (1st Cir. 2001); see also Irizarry v. United States,
427 F.3d 76, 77-78 (1st Cir. 2005).

None of our cases has adopted

the distinction urged nor does it have any obvious basis in policy.
Constitutional

claims

are

common

in

administrative

proceedings--especially equal protection and procedural due process
claims--and are part of the ordinary fodder of review in discharge
cases.

Often such claims are made along with factual claims

denying the conduct alleged against the employee and statutory or
rule-based

claims

as

well.

Congress'

desire

to

consolidate

employee removal in a single forum was based on the action taken

4

Compare Dotson v. Griesa, 398 F.3d 156, 179-82 (2d Cir.
2005), and Lombardi v. Small Bus. Admin., 889 F.2d 961-62 (10th
Cir. 1989), with Mitchum v. Hurt, 73 F.3d 30, 35-36 (3d Cir. 1996),
and Hubbard v. EPA, 809 F.2d 1, 11 & n.15 (D.C. Cir. 1986), vacated
in part on other grounds, Spagnola v. Mathis, 859 F.2d 223 (D.C.
Cir. 1988) (en banc) (per curiam).
The Supreme Court has not
resolved the question. Whitman, 547 U.S. at 513-14.
-13-

Case: 10-1302 Document: 00116194246 Page: 14

Date Filed: 04/08/2011

Entry ID: 5540518

against the employee rather than the precise arguments made in
contesting that action.
What matters in the end is whether the CSRA process can
afford relief.

The plaintiffs argue that a facial claim attacking

the underlying statute is one for which the MSPB cannot grant
relief to them and therefore the premise--that the CSRA remedy is
exclusive where it applies--does not itself apply.

And to show

that there is no MSPB remedy, the plaintiffs point to statements by
the MSPB itself that it, "as an administrative agency, is without
authority to determine the constitutionality of Federal statutes."
Bayly v. OPM, 42 M.S.P.R. 524, 525-26 (1990).5
But while the Board may be powerless to strike down the
statute, the Federal Circuit on review of the Board may do so,
5 U.S.C. § 7703(c), and, if it agreed with the plaintiffs on the
merits, remand to the Board to grant relief.

See Shalala v. Ill.

Council on Long Term Care, Inc., 529 U.S. 1, 23-24 (2000); Thunder
Basin Coal Co., 510 U.S. at 215.
provide

an

opportunity

for

Accordingly, the CSRA regime does

the

plaintiffs

to

obtain

determination of their facial constitutional challenge.

a

full

Indeed,

even if the MSPB had the first word on the constitutional issue, it
certainly would not have the last.

5

This self-denying ordinance, distinguishing this subset of
constitutional challenges from all others, is widely repeated in
the case law, e.g., Califano v. Sanders, 430 U.S. 99, 109 (1977),
although it is "not mandatory," Thunder Basin Coal Co. v. Reich,
510 U.S. 200, 215 (1994).
-14-

Case: 10-1302 Document: 00116194246 Page: 15

Date Filed: 04/08/2011

Entry ID: 5540518

Plaintiffs object that the Federal Circuit has regularly
said that its jurisdiction is coextensive with that of the MSPB as
to the categories of cases that fall within the CSRA.

E.g., Rosano

v. Dep't of the Navy, 699 F.2d 1315, 1318 (Fed. Cir. 1983).

That

proposition happens to be true as a general statement, but it was
not made by the Federal Circuit in our context and would make no
sense if it were: for in such cases the MSPB is limited only
because of a doctrine that uniquely applies to administrative
agencies and not to the Federal Circuit or any other Article III
court.
The Federal Circuit has never said that it was powerless
to act where a removal occurred and the underlying statute that
prompted the removal was itself unconstitutional. On the contrary,
that court has said that if a colorable constitutional claim were
presented, it would have to address the issue.

See Riggin v.

Office of Senate Fair Emp't Practices, 61 F.3d 1563, 1570 (Fed.
Cir. 1995) (discussing Webster v. Doe, 486 U.S. 592 (1988));
Brockmann v. Dep't of the Air Force, 27 F.3d 544, 546-47 (Fed. Cir.
1994) (same).

And if it mistakenly held otherwise, the remedy

would be on certiorari to the Supreme Court.
The substantive constitutional claims in this case are
unpromising, given that one conflicts with governing Supreme Court
precedent and the other ignores the fact that the plaintiffs were
free to avoid the bar by timely registration.

-15-

But the CSRA

Case: 10-1302 Document: 00116194246 Page: 16

Date Filed: 04/08/2011

Entry ID: 5540518

channels removals covered by the CSRA--and thus the plaintiffs'
claims--to the Federal Circuit, see Hall v. United States, 617 F.3d
1313, 1316 (Fed. Cir. 2010); that principle serves an important
purpose; the CSRA provides a remedy for a meritorious facial
challenge; and plaintiffs were obliged to use it.
The judgment of the district court is vacated and the
case remanded for entry of a new judgment denying relief for lack
of subject matter jurisdiction and without prejudice to the pursuit
of remedies under the CSRA to the extent that they may be available
at this late date.

Each side shall bear its owns costs on this

appeal.
It is so ordered.

--Concurring Opinion Follows--

-16-

Case: 10-1302 Document: 00116194246 Page: 17

Date Filed: 04/08/2011

STAHL, Circuit Judge, concurring.

Entry ID: 5540518

I concur in the

ultimate result of this case, but not in the route taken in
reaching it. I would find jurisdiction to consider the plaintiffs'
claims, but hold that they fail as a matter of law.
I.

Jurisdiction

The majority reaches a reasoned conclusion, but I believe
it falls short in considering fully the question of whether there
is an applicable exception to the CSRA's preclusive effect.

To be

sure, the majority disposes of the plaintiffs' arguments regarding
constitutional
specifically.

challenges

generally

and

facial

attacks

It does not, however, take head-on the issue of

whether federal district court jurisdiction remains intact if the
CSRA does not afford meaningful review to the plaintiffs' colorable
constitutional claims that sound in equity.6

Because I find that

the plaintiffs' claims would be unreviewable under the CSRA's
remedial

scheme,

I

would

hold

that

federal

district

court

jurisdiction exists, just as our sister circuits have done in
comparable cases.

See Am. Fed'n of Gov't Emps. Local 1 v. Stone,

502 F.3d 1027, 1034-39 (9th Cir. 2007); Mitchum v. Hurt, 73 F.3d
30, 34-36 (3d Cir. 1995); Hubbard v. EPA, 809 F.2d 1, 11-12 (D.C.

6

The plaintiffs seek equitable relief in the form of a
declaratory judgment that § 3328 and the Military Selective Service
Act are unconstitutional; an injunction prohibiting the enforcement
of § 3328; reinstatement to their agency positions; and back pay,
benefits, and attorneys' fees.
-17-

Case: 10-1302 Document: 00116194246 Page: 18

Date Filed: 04/08/2011

Entry ID: 5540518

Cir. 1986), vacated in part on other grounds, Spagnola v. Mathis,
859 F.2d 223 (D.C. Cir. 1988) (en banc) (per curiam).
As set forth in 28 U.S.C. § 1331, "district courts shall
have original jurisdiction of all civil actions arising under the
Constitution,

laws,

or

treaties

of

the

United

States."

The

plaintiffs' claims arise under the Constitution, namely, the Bill
of Attainder Clause in Article I, Section 9, and the Due Process
Clause of the Fifth Amendment, which implicitly guarantees equal
protection.

See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

The

question, then, is whether the CSRA divested the federal district
court of its jurisdiction conferred by § 1331.

See Whitman v.

Dep't of Transp., 547 U.S. 512, 514 (2006).
As explained by the majority, Congress enacted the CSRA
in 1978 as a means to "'comprehensively overhaul[] the civil
service system.'"

United States v. Fausto, 484 U.S. 439, 443

(1988) (quoting Lindahl v. OPM, 470 U.S. 768, 773 (1985)).

Prior

to the CSRA, different employees were afforded different processes
of review upon an adverse employment action, resulting in both
federal court and administrative appeals with "wide variations"
among decisions.

Id. at 444-45.

Congress sought to streamline

these varied decisions by funneling federal employee personnel
actions through the CSRA's administrative process.

Id. at 445.

Although the CSRA does not explicitly prohibit plenary
actions

in

federal

district

court,

-18-

the

Supreme

Court

has

Case: 10-1302 Document: 00116194246 Page: 19

Date Filed: 04/08/2011

Entry ID: 5540518

interpreted the statute to have far-reaching preclusive effect. In
Bush v. Lucas, 462 U.S. 367 (1983), it held that a federal-employee
plaintiff whose demotion allegedly violated the Constitution could
not sue for damages, even though, assuming the violation occurred,
his remedies under the CSRA would not fully compensate him for the
harm he suffered.

Five years later, in United States v. Fausto,

484 U.S. 439, it found that the CSRA prevented a plaintiff from
initiating suit in federal court for statutory and regulatory
violations,

even

though

the

plaintiff

was

afforded

no

administrative review under the statute.
Despite this line of precedent, the Supreme Court has
consistently found exceptions to the foreclosure of judicial review
for colorable constitutional claims sounding in equity, absent
clear congressional intent to the contrary.

The same year it

decided Fausto, it also decided Webster v. Doe, 486 U.S. 592
(1988),

in

challenging

which
on

a

both

plaintiff
statutory

sought
and

equitable

constitutional

relief

when

grounds

his

termination from the CIA due to his homosexuality. The Court found
the statutory claims unreviewable, but it rejected the government's
argument that the constitutional claims were as well, holding:
[W]here Congress intends to preclude judicial
review of constitutional claims its intent to
do so must be clear. . . . We require this
heightened showing in part to avoid the
"serious constitutional question" that would
arise if a federal statute were construed to
deny any judicial forum for a colorable
constitutional claim.
-19-

Case: 10-1302 Document: 00116194246 Page: 20

Date Filed: 04/08/2011

Entry ID: 5540518

486 U.S. at 603 (quoting Bowen v. Mich. Acad. of Family Physicians,
476 U.S. 667, 681 n.12 (1986)); see also McNary v. Haitian Refugee
Ctr., Inc., 498 U.S. 479, 496 (1991) (finding federal question
jurisdiction for plaintiffs' constitutional challenges despite
comprehensive

immigration

statute

due

to

lack

of

meaningful

judicial review under statute and absence of clear congressional
language mandating preclusion); Johnson v. Robison, 415 U.S. 361,
373-74 (1974) (holding that statute prohibiting judicial review of
decisions by the administrator of Veterans Affairs did not provide
"the

'clear

and

convincing'

evidence

of

congressional

intent

required by this Court before a statute will be construed to
restrict

access

to

judicial

review"

of

constitutional

claims

(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967))).
Because I find that the CSRA's remedial scheme does not
afford

the

plaintiffs

meaningful

review

of

their

colorable

constitutional claims for equitable relief, I would hold that the
statute does not bar the present action and the plaintiffs may seek
relief in federal district court.
The MSPB is a creation of statute, and its jurisdiction
is limited.

See 5 U.S.C. § 7701(a).

Notwithstanding the question

of whether the MSPB has the power to rule on constitutional issues,
see Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 (1994), it
is undisputed by the parties that the MSPB cannot adjudicate claims
premised on removals due to an "absolute statutory prohibition" to

-20-

Case: 10-1302 Document: 00116194246 Page: 21

appointment.

Date Filed: 04/08/2011

Entry ID: 5540518

See, e.g., Hope v. Dep't of the Army, 108 M.S.P.R. 6,

9 (2008); Lovoy v. Dep't of Health & Human Servs., 94 M.S.P.R. 571,
586 (2003); Daneshpayeh v. Dep't of the Air Force, 57 M.S.P.R. 672,
676 (1993), aff'd, No. 93-3476, 1994 U.S. App. LEXIS 14360, 1994 WL
18964

(Fed.

Cir.

Jan.

26,

1994)

(unpublished)

(per

curiam);

Travaglini v. Dep't of Educ., 18 M.S.P.R. 127, 132 (1983), aff'd as
modified, 23 M.S.P.R. 417, 419-20 (1984).
Section 3328 is an absolute prohibition to appointment
because an individual who knowingly and willfully fails to register
with the Selective Service System is barred from all executive
agency employment, and he must be terminated if currently employed.
See

5

U.S.C.

§

3328;

5

C.F.R.

§§

300.701-.707.

The

MSPB

consistently dismisses appeals related to terminations pursuant to
§ 3328 on these grounds, a position the government regularly
advances before the Board and on which it succeeded in the MSPB
appeal by Mr. Elgin, a plaintiff in this matter.

E.g., Charner v.

OPM, No. PH-3443-08-0601-I-2, 2009 M.S.P.B. LEXIS 1296, at *10-11
(Mar. 6, 2009) (unpublished); Whitfield v. Dep't of Interior, No.
DC-0752-09-0094-I-1, 2008 M.S.P.B. LEXIS 6910, at *4, 7 (Dec. 23,
2008) (unpublished); Rivera v. Dep't of Veterans Affairs, No. NY0752-08-0137-I-1, 2008 M.S.P.B. LEXIS 2056, at *7 (Mar. 31, 2008)
(unpublished); Elgin v. Dep't of Treasury, No. PH-0752-08-0004-I-1,
2007 M.S.P.B. LEXIS 7502, at *9

(Nov. 16, 2007) (unpublished).

-21-

Case: 10-1302 Document: 00116194246 Page: 22

Date Filed: 04/08/2011

Entry ID: 5540518

Indeed, the MSPB has often deemed frivolous the assertion
that it has jurisdiction over cases contesting removals pursuant to
§ 3328.

See, e.g., Whitfield, 2008 M.S.P.B. LEXIS 6910, at *1;

Clarke v. OPM, No. DA-3443-07-0538-I-1, 2007 M.S.P.B. LEXIS 7101,
at *1 n.1 (Dec. 17, 2007) (unpublished); Belmares-Avalos v. OPM,
No. CH-300A-07-0351-I-1, 2007 M.S.P.B. LEXIS 4900, at *1 (May 9,
2007) (unpublished).

Moreover, the regulations promulgated by OPM

are entitled "Statutory Bar to Appointment of Persons Who Fail to
Register

Under

Selective

Service

Law,"

and

they

state

that

administrative review beyond OPM's determination is prohibited.

5

C.F.R. §§ 300.701-.707; id. at .706(c).7

7

The majority states that, to the extent that the MSPB would
have found that it lacked jurisdiction to hear the plaintiffs'
claims because the plaintiffs were terminated pursuant to an
absolute statutory prohibition to appointment, the MSPB would be
wrong because the doctrine has never been endorsed by the Federal
Circuit and is illogical. I believe that the majority oversteps in
reaching this conclusion.
First, as cited above, the MSPB
routinely holds that it cannot hear appeals contesting removals
based on absolute statutory prohibitions to appointment, and this
precedent appears firmly established.
Second, the Federal Circuit has hardly indicated any error in
the Board's finding. In Diamond v. U.S. Agency for International
Development, 108 F.3d 312 (Fed. Cir. 1997), it cited with approval
Travaglini v. Department of Education, 18 M.S.P.R. 127, 132 (1983),
one of the leading cases to discuss the doctrine, although it did
not apply the doctrine to the case at hand.
In Daneshpayeh v.
Department of the Air Force, 1994 U.S. App. LEXIS 14360, an
unreported and non-precedential opinion, the Federal Circuit
affirmed the MSPB's decision that the Board could not grant relief
to a federal employee terminated pursuant to an absolute statutory
prohibition to appointment.
Although the court indicated in a
footnote that it may have been incorrect for the MSPB to term this
holding "jurisdictional," it still found that the Board could not
grant relief because the employee's appointment was illegal. It is
-22-

Case: 10-1302 Document: 00116194246 Page: 23

Date Filed: 04/08/2011

Entry ID: 5540518

Because the MSPB has routinely stated that it lacks
jurisdiction to hear the plaintiffs' claims on the merits, it
appears to me that the Federal Circuit is without jurisdiction to
do so as well. The Federal Circuit's jurisdiction is derivative of
the MSPB's jurisdiction, and it is problematic whether the Federal
Circuit has the ability to decide matters beyond that of the Board.
See Perez v. Merit Sys. Prot. Bd., 931 F.2d 853, 855 (Fed. Cir.
1991) ("Since the MSPB had no jurisdiction, the merits of Perez's
challenge . . . were not before the MSPB for decision; nor are they
before us."); Carroll v. Dep't of Health & Human Servs., 703 F.2d
1388, 1390 (Fed. Cir. 1983) ("'[W]ith respect to cases brought
under

[5

U.S.C.

§]

7701,

the

scope

of

the

subject

matter

jurisdiction of this court is identical to the scope of the
jurisdiction of the Board.'" (quoting Rosano v. Dep't of the Navy,
699 F.2d 1315, 1318 (Fed. Cir. 1983))).
The majority places great faith in its presumption that
the Federal Circuit would either find the MSPB competent to review
the plaintiffs' claims and remand for a decision on the merits, or
that it would look beyond its own jurisdictional constraints to
reach the constitutional issues itself.
these

assertions,

however,

is

elusive.

The evidence to support
First,

although

no

immaterial whether an absolute statutory prohibition to appointment
is "jurisdictional" or simply precludes review; under either
circumstance, the Board is unable to hear the merits of a
plaintiff's claim.
-23-

Case: 10-1302 Document: 00116194246 Page: 24

Date Filed: 04/08/2011

Entry ID: 5540518

plaintiff, in this suit or others, who was removed under § 3328 has
ever sought Federal Circuit review of the MSPB's decision to
dismiss for lack of jurisdiction, the case law and regulations
cited above suggest that such efforts would be futile.

Time and

again the MSPB has dismissed these cases, claiming that it is
unable to grant relief, and an appeal to the Federal Circuit seems
almost certain to result in a simple affirmance.

See Daneshpayeh,

1994 U.S. App. LEXIS 14360.
Second, the Federal Circuit has never reached beyond the
limits of the MSPB to hear the merits of a claim otherwise barred
from

review.

In

only

one

instance

has

it

hypothesized

possibility, and never before has it acted on the idea.

the
See

Brockmann v. Dep't of the Air Force, 27 F.3d 544, 546-47 (Fed. Cir.
1994) (acknowledging Supreme Court precedent supporting review of
colorable

constitutional

claims

otherwise

barred,

but

finding

precedent inapplicable because plaintiffs' claims unreviewable by
the MSPB were not colorable). Indeed, when the Federal Circuit did
confront

a

plaintiff

covered

by

the

CSRA

who

asserted

constitutional claims that were beyond MSPB review, it affirmed the
dismissal

of

his

suit

for

lack

of

jurisdiction,

providing a forum for his constitutional claims.

rather

than

Hubbard v. Merit

Sys. Prot. Bd., 319 Fed. Appx. 912 (Fed. Cir. 2009) (unpublished).

-24-

Case: 10-1302 Document: 00116194246 Page: 25

Date Filed: 04/08/2011

Entry ID: 5540518

Such case law provides little comfort that the plaintiffs in this
matter would fare any better.8
To be sure, administrative boards have been declared
competent to review constitutional issues otherwise perhaps beyond
their scope.

See Shalala v. Ill. Council on Long-Term Care, Inc.,

529 U.S. 1, 20-24 (2000) (interpreting Medicare statute to provide
administrative review of constitutional claims); Riggin v. Office
of Senate Fair Emp't Practices, 61 F.3d 1563, 1570 (Fed. Cir. 1995)
(finding administrative board competent to review constitutional
due

process

claim).

In

administrative

schemes

district

jurisdiction,

court

at

these
issue
and,

instances,

expressly
therefore,

however,

precluded
would

the

federal

leave

the

constitutional claims without any forum were the boards unable to
review them.

See Shalala, 529 U.S. at 5, 8, 10 (finding Medicare

Act to prohibit expressly federal-question jurisdiction); Riggin,
61 F.3d at 1570 (finding Government Employee Rights Act to prohibit
expressly the commencement of judicial proceedings).

8

The majority suggests that were the Federal Circuit not to
address a colorable constitutional claim, the remedy would be on
certiorari to the Supreme Court and not via a plenary federal
district court action. I disagree with the majority because the
doctrine obliging review of constitutional claims is relevant only
when review is otherwise unavailable. Here, it appears that review
under the CSRA's administrative scheme is foreclosed, and so I do
not see why the federal district court is not the proper forum to
review the claims. Indeed, the several circuits that have invoked
this doctrine in the context of the CSRA have done so despite the
Federal Circuit's ostensible ability to do the same. See Stone,
502 F.3d at 1034-39; Mitchum, 73 F.3d at 34-36; Hubbard, 809 F.2d
at 11-12.
-25-

Case: 10-1302 Document: 00116194246 Page: 26

Date Filed: 04/08/2011

Entry ID: 5540518

The CSRA contains no such clear prohibition of original
federal court actions.

Chapter 75 of the CSRA allows an agency to

remove an employee "only for such cause as will promote the
efficiency of the service," and upon such action, the employee "is
entitled to appeal to the Merit Systems Protection Board."
U.S.C.

§

7513(a),

(d).

Nowhere

does

the

statute

5

indicate

explicitly that a plaintiff may not challenge his termination by
raising colorable constitutional claims in federal court.9
Our sister courts in the Ninth, Third, and D.C. Circuits
have

held

similarly

and

allowed

federal

employees

to

bring

constitutional claims in district court actions seeking equitable
relief.
preclude

See Stone, 502 F.3d at 1034-39 (holding CSRA did not
judicial

review

of

plaintiffs'

First

Amendment

constitutional claims for equitable relief when plaintiffs had no
remedy under the statute); Mitchum, 73 F.3d at 34-36 (finding CSRA
and comparable statutes did not preclude federal district court
review of plaintiffs' constitutional claims for injunctive and
declaratory relief because CSRA not sufficiently clear to restrict
federal

power

to

grant

equitable

relief

for

constitutional

violations); Hubbard, 809 F.2d at 11-12 & n.15 (holding federal

9

To the extent that the majority opinion suggests that the
plaintiffs' claims are not colorable, I disagree.
There is a
difference between colorable and meritorious claims, and although
I would dismiss the plaintiffs claims as a matter of law, I do not
find them lacking in "potential validity," see Makieh v. Holder,
572 F.3d 37, 42 (1st Cir. 2009).
The district court's initial
holding on the bill of attainder claim demonstrates as much.
-26-

Case: 10-1302 Document: 00116194246 Page: 27

Date Filed: 04/08/2011

Entry ID: 5540518

district court had jurisdiction over First Amendment claim because
the

"CSRA

does

not

preclude

federal

employees

from

seeking

equitable relief against agencies for allegedly unconstitutional
personnel actions"); Spagnola, 859 F.2d at 229-30 ("[T]ime and
again this court has affirmed the right of civil servants to seek
equitable relief against their supervisors, and the agency itself,
in vindication of their constitutional rights.").
The Eleventh, Seventh, and Fourth Circuits have expressly
avoided the question of whether the CSRA forecloses equitable
relief for colorable constitutional claims; indeed, the Eleventh
and Fourth Circuits have distinguished or questioned their prior
precedent that suggests preclusion.

See Hardison v. Cohen, 375

F.3d 1262, 1263, 1266-69 (11th Cir. 2004) (acknowledging serious
question left unresolved as to whether the CSRA precludes equitable
relief

for

constitutional

challenges

to

terminations

and

distinguishing prior precedent in Stephens v. Dep't of Health &
Human Servs., 901 F.2d 1571 (11th Cir. 1990), based on availability
of review and type of remedy sought); Paige v. Cisneros, 91 F.3d
40, 44 (7th Cir. 1996) (avoiding issue of whether CSRA precludes
equitable relief for colorable constitutional claims because claim
was not colorable); Bryant v. Cheney, 924 F.2d 525, 527-28 (4th
Cir. 1991) (declining to address continued vitality of Pinar v.
Dole, 747 F.2d 899 (4th Cir. 1984), in light of Webster and circuit
split

on

issue).

Indeed,

the

-27-

Supreme

Court

indicated

the

Case: 10-1302 Document: 00116194246 Page: 28

significance

of

Transportation,

this
547

issue

U.S.

in

512,

Date Filed: 04/08/2011

Whitman

514

v.

(2006),

Entry ID: 5540518

Department

remanding

for

of
a

determination as to whether the CSRA removed federal question
jurisdiction over constitutional challenges.
I

acknowledge

that

some

of

our

own

precedent

and

unpublished decisions along with decisions in the Second and Tenth
Circuits10 suggest that the CSRA bars all federal actions related
to civil service employment, but those cases are distinguishable.
They did not involve the absence of meaningful administrative
remedies, Dotson v. Griesa, 398 F.3d 156, 171-72, 182 (2d Cir.
2005) (noting lack of CSRA remedies but available relief through
comparable statutory scheme); Harvey v. U.S. Postal Serv., No. 941729,

1995

U.S.

App.

LEXIS

9447

(1st

Cir.

Apr.

25,

1995)

(unpublished) (CSRA remedies available); Berrios v. Dep't of the
Army,

884

F.2d

28,

29-30

(1st

Cir.

1989)

(CSRA

remedies

available);11 equitable claims, Harvey, 1995 U.S. App. LEXIS 9447,
at *1-2; Roth v. United States, 952 F.2d 611, 613 & n.2 (1st Cir.
1991); or colorable constitutional challenges, Pathak v. Dep't of

10

Unpublished opinions from this court and opinions from other
courts act as persuasive authority and are not binding precedent.
See Fed. R. App. P. 32.1; 1st Cir. R. 32.1.0(a); United States v.
Stepanian, 570 F.3d 51, 57 n.10 (1st Cir. 2009).
11

Although the majority claims that Berrios definitely answers
our present matter, the case is distinct.
In Berrios, the
plaintiff was afforded and took advantage of available CSRA
remedies, and so the rationale for district court jurisdiction
would not apply. Here, however, the plaintiffs have no statutory
remedies.
-28-

Case: 10-1302 Document: 00116194246 Page: 29

Date Filed: 04/08/2011

Entry ID: 5540518

Veterans Affairs, 274 F.3d 28, 31, 33 (1st Cir. 2001);12 Harvey,
1995 U.S. App. LEXIS 9447, at *2; Desmond v. Dep't of Defense, No.
92-2201, 1993 U.S. App. LEXIS 5195, at *11-12 (1st Cir. Mar. 19,
1993) (unpublished); or they lacked meaningful analysis, Lombardi
v. Small Bus. Admin., 889 F.3d 959, 961-62 (10th Cir. 1989).
Consistent with Stone, Mitchum, and Hubbard, and the
shift within the circuits, I would hold that for an administrative
scheme to foreclose a plenary federal district court action seeking
equitable relief and involving colorable constitutional claims,
congressional intent must be clear.
standard.

The CSRA does not meet this

I would then find that the plaintiffs' claims are

afforded no meaningful review under the CSRA and, therefore, their
claims are reviewable in federal district court.
II. The Merits
Having

found

jurisdiction,

I

would

dismiss

the

plaintiffs' claims on the merits.
A. Bill of Attainder
The plaintiffs assert that § 3328 is an unconstitutional
bill of attainder since it legislatively punishes men age twentysix and older who failed to and can no longer register with the
Selective Service System because it prohibits their employment with
an executive agency.

They assert that the statute satisfies the

12

Indeed, in Pathak we acknowledged that, despite the CSRA's
expansive reach, we might have jurisdiction to review the
plaintiffs claims, were they colorable. 274 F.3d at 33.
-29-

Case: 10-1302 Document: 00116194246 Page: 30

Date Filed: 04/08/2011

Entry ID: 5540518

requirements of a bill of attainder by identifying a class of men
based on immutable past conduct and operating as a punishment
without trial.

I disagree.

Article I, Section 9, Clause 3 of the United States
Constitution reads: "No Bill of Attainder or ex post facto Law
shall be passed." With this clause the Framers "sought to prohibit
the ancient practice of the Parliament in England of punishing
without

trial

'specifically

designated

persons

or

groups.'"

Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S.
841, 847 (1984) (quoting United States v. Brown, 381 U.S. 437, 447
(1965)).

The constitutional provision safeguards the notion of

separation of powers by protecting against trial by legislature.
Brown, 381 U.S. at 442. Historically, bills of attainder were acts
sentencing to death one or more specific persons, although the
Supreme Court has read the clause to also outlaw what were known as
bills

of

pains

punishments.

and

Id. at

277, 323 (1867).

penalties,

which

imposed

less

severe

441; Cummings v. Missouri, 71 U.S. (4 Wall.)

Targeted parties were typically those "who had

attempted, or threatened to attempt, to overthrow the government."
Brown, 381 U.S. at 441.
The Supreme Court has struck down statutes on bill of
attainder grounds only five times in the nation's history.

See

Cummings, 71 U.S. 277 (targeting Confederate sympathizers); Ex
parte Garland, 71 U.S. (4 Wall.) 333 (1867) (same); Pierce v.

-30-

Case: 10-1302 Document: 00116194246 Page: 31

Date Filed: 04/08/2011

Entry ID: 5540518

Carskadon, 83 U.S. (16 Wall.) 234 (1873) (same); United States v.
Lovett, 328 U.S. 303 (1946) (targeting "subversives"); Brown, 381
U.S. 437 (targeting Communist Party members).

For a statute to

qualify as a bill of attainder it must: (1) specify the affected
person or group, (2) impose punishment by legislative decree, and
(3) dispense with a judicial trial.
U.S. at 847.

See Selective Serv. Sys., 468

Because I would find that § 3328 does not specify an

identifiable group or impose punishment, I would hold that the
statute is not a bill of attainder.
1.

Specification

Typical bills of attainder evince specification by naming
the person to be punished.

The Supreme Court has also recognized

specification when legislation describes individuals "in terms of
conduct which, because it is past conduct, operates only as a
designation of particular persons." Communist Party of the U.S. v.
Subversive Activities Control Bd., 367 U.S. 1, 86 (1961); see also
Cummings, 71 U.S. 277 (identifying individuals by past affiliation
with Confederacy); Ex Parte Garland, 71 U.S. 333 (same).

In

contrast,

on

statutes

of

general

applicability

that

focus

prospective conduct have withstood challenges on bill of attainder
grounds.

See Brown, 381 U.S. at 446, 461; see e.g., Selective

Serv. Sys., 468 U.S. at 848-51 (finding statute prospective and
therefore not bill of attainder); Communist Party, 367 U.S. at 8687 (finding statute not bill of attainder because it did not attach

-31-

Case: 10-1302 Document: 00116194246 Page: 32

Date Filed: 04/08/2011

Entry ID: 5540518

to "past and ineradicable actions," but rather "turn[ed] upon
continuingly contemporaneous fact").
Section 3328 does not meet the specification requirement
to constitute a bill of attainder because it does not identify
individuals
irreversible

for

legislatively

past

acts.

prospective in nature.

imposed

Rather,

punishment

the

statute

based

is

on

entirely

President Carter's Proclamation issued on

July 2, 1980, dictated that men born on or after January 1, 1960,
are required to register with the Selective Service System.

Those

born in the years 1960, 1961, and 1962 had six specified days to
register.
before

All men born during or after 1963 have thirty days both

and

after

their

eighteenth

birthdays

to

comply.

Proclamation No. 4771.
Section 3328 became effective on November 8, 1985.

On

this date, the oldest person subject to its provisions would have
been twenty-five.

Thus, even if an individual had failed to

satisfy timely the dictates of President Carter's Proclamation,
under § 3328, he still had the opportunity to register with the
Selective Service System and avoid disqualification from federal
employment.

See 5 C.F.R. §§ 300.704(b), 300.705(c); cf. Selective

Serv. Sys., 468 U.S. at 849.
individuals

"'ineluctably

punishment"

because

all

As such, § 3328 does not identify any
designated

men

can

-32-

by

comply

the

legislature'

prospectively.

for
See

Case: 10-1302 Document: 00116194246 Page: 33

Date Filed: 04/08/2011

Entry ID: 5540518

Selective Serv. Sys., 468 U.S. at 847 (quoting Communist Party, 367
U.S. at 87).
The Supreme Court found similarly in Selective Service
System v. Minnesota Public Interest Research Group, 468 U.S. at
849-51, when it held that § 12(f) of the Military Selective Service
Act, which denies federal financial assistance to male students who
fail to register for the draft, did not meet the specification
requirement to constitute a bill of attainder.13 Similar to § 3328,
§ 12(f) was enacted before any men subject to it would have been
too

old

to

register

with

the

Selective

Service

System.

Because § 12(f)'s implementing regulations permitted nonregistrants
to

register

late,

meaning,

after

the

timeline

delineated

in

Proclamation 4771, § 12(f) was not retrospective.
The plaintiffs counter that § 3328 is nevertheless a bill
of attainder because it penalizes an easily identifiable group of
men age twenty-six and older who are no longer eligible to register
for the draft.
historical

They argue that Supreme Court precedent and

parliamentary

acts

demonstrate

that

legislation

qualifies as a bill of attainder even when punishment occurs postenactment and is conditioned on future behavior. They advance that
§ 3328 is such a bill because it makes termination contingent upon
the subsequent act of failing to register for the draft before

13

The Supreme Court also determined that the statute did not
meet the punishment requirement. As explained below, I would hold
that neither does § 3328.
-33-

Case: 10-1302 Document: 00116194246 Page: 34

Date Filed: 04/08/2011

Entry ID: 5540518

turning twenty-six. Relatedly, they also assert that § 3328 should
be evaluated as a bill of attainder at the time of enforcement
rather than the time of enactment, and that under such analysis,
the statute meets the specification element because men currently
age twenty-six and older who did not register for the draft
represent an easily ascertainable group.
The plaintiffs' arguments miss the mark. To be sure, the
Supreme Court has held that a statute conditioning punishment on
future behavior may still constitute a bill of attainder, but this
assertion is irrelevant.

Such statutes have met the specificity

requirement because they have identified specific individuals or
groups based on prior acts, irrespective of also providing these
individuals with a means to escape punishment through some future
performance.

See

Brown,

381

U.S.

at

442

(highlighting

that

statutes meet specification by designation of affected individuals,
even if they provide escape clauses).
For example, in Cummings v. Missouri, 71 U.S. 277, the
Supreme Court found invalid a Missouri constitutional amendment
that prohibited people from engaging in certain professions unless
they stated under oath that they had not given aid or comfort to
the Confederacy.14

Although individuals could arguably escape

14

The Constitution extends the prohibition of bills of
attainder to the states. U.S. Const. art. I, § 10, cl. 1 ("No
State shall . . . pass any Bill of Attainder . . . .").
-34-

Case: 10-1302 Document: 00116194246 Page: 35

Date Filed: 04/08/2011

Entry ID: 5540518

punishment by performing the oath,15 the statute was still a bill
of attainder because it identified the affected group based on
immutable past conduct, prior sympathy and aid to the Confederate
army.

Id. at 318 ("In the first place, [the amendment] is

retrospective; it embraces all the past from this day."); see also
Ex

Parte

Garland,

71

U.S.

at

377

(involving

federal

statute

directed at Confederates that contained an escape clause and was
ultimately found to be a bill of attainder).

Section 3328,

however, does not identify individuals in this manner because it is
not directed at people who committed prior acts.
broadly

drawn

statute

of

general

Rather, it is a

applicability

directed

at

prospective conduct and affecting all men regardless of their past
actions, political affiliations, or ideological beliefs.
With respect to the plaintiffs' insistence that the court
evaluate § 3328 at the time of enforcement rather than at the time
of enactment, I would reject it. A statute meets the specification
element if it identifies individuals by name or by description of
prior conduct so that it "operates only as a designation of

15

The Supreme Court has noted the elusiveness of escaping
punishment under the Missouri amendment at issue in Cummings. In
effect, prior Confederate sympathizers could not evade the
employment bar because their only options were to abstain from the
oath and lose their livelihood, or take the oath and perjure
themselves. See Selective Serv. Sys., 468 U.S. at 848. To the
extent that the plaintiffs analogize the Missouri amendment
to § 3328 in that both provide "escape clauses," § 3328 does not
present the double bind at issue in Cummings since men subject to
§ 3328 can avoid punishment through lawful actions.
-35-

Case: 10-1302 Document: 00116194246 Page: 36

particular persons."
of

general

Date Filed: 04/08/2011

Communist Party, 367 U.S. at 86.

applicability

that

affects

individuals

Entry ID: 5540518

A statute
only

upon

enforcement is not a bill of attainder; it is simply an example of
the quintessential legislation that the Constitution tasks Congress
with creating.
2.

See Brown, 381 U.S. at 461.
Punishment

Even if § 3328 fulfilled the specificity element, I would
still find that it does not constitute a bill of attainder because
it does not inflict punishment.

Courts evaluate whether a statute

satisfies the punishment element for bill of attainder purposes by
considering: (1) whether the statute falls within the historical
meaning of legislative punishment; (2) whether, in view of the type
and severity of the burdens imposed, the statute reasonably can be
said to further nonpunitive legislative purposes; and (3) whether
the legislative record demonstrates a congressional intent to
punish.

Selective Serv. Sys., 468 U.S. at 852 (citing Nixon v.

Admin. of Gen. Servs., 433 U.S. 425, 473, 475-76, 478 (1977)).
"[O]nly

the

clearest

unconstitutionality

of

congressional motive.
(1960).

Further,

proof

could

a

statute"

to

establish

based

on

the

impermissible

Flemming v. Nestor, 363 U.S. 603, 617

"[e]ach

particularized context."

suffice

case

[turns]

on

its

own

highly

Id. at 616.

Section 3328 does not satisfy any of these punishment
queries.

It is true that "a legislative decree of perpetual

-36-

Case: 10-1302 Document: 00116194246 Page: 37

Date Filed: 04/08/2011

Entry ID: 5540518

exclusion" from specific types of employment meets the historical
understanding of a bill of attainder.
377

(1867)

(barring

types

of

Ex parte Garland, 4 U.S. at

employment

for

Confederate

sympathizers); see Cummings, 71 U.S. 277 (same); Lovett, 328 U.S.
303 (barring named individuals from federal employment); Brown, 381
U.S. 437 (barring Community Party members from positions within
labor unions).

But § 3328 does not act as a perpetual exclusion to

employment because all men have an opportunity to register for the
draft.

A statute that allows men to "'carry the keys of their

prison in their own pockets' . . . does not fall within the
historical meaning of forbidden legislative punishment." Selective
Serv. Sys., 468 U.S. at 853 (quoting Shillitani v. United States,
384 U.S. 364, 368 (1966)).
Also, it is reasonable to understand § 3328 as a means to
further the nonpunitive goal of encouraging Selective Service
System registration.

The statute was enacted in conjunction with

findings that detailed the importance of the draft registration
program and an urging from Congress that the President "recognize
. . . the contribution of our young men to the success of the
peacetime registration program."

See Pub. L. No. 99-145 §§ 1621,

1622(a),

(1985).

99

Stat.

583,

776-77

It

also

complements

President Carter's directive to executive agencies to "cooperate
and assist" in the draft registration requirements.
No. 4771.

Proclamation

The conditioning of civil service employment on draft

-37-

Case: 10-1302 Document: 00116194246 Page: 38

registration,

then,

acts

as

Date Filed: 04/08/2011

a

"rational

means

Entry ID: 5540518

to

improve

compliance," which is a legitimate nonpunitive objective.

See

Selective Serv. Sys., 468 U.S. at 854.
Finally, I would not find the "clearest proof" from the
congressional record that Congress intended § 3328 to act as a form
of punishment.

Admittedly, Senator Strom Thurmond, the statute's

sponsor, deemed it "unpatriotic" to permit nonregistrants to enjoy
the privileges and benefits of civil service positions.
Rec. S6627 (1985).

131 Cong.

These comments alone, however, do not suffice

as "'unmistakable evidence of punitive intent which . . . is
required before a Congressional enactment of this kind may be
struck

down.'"

Selective

Serv.

Sys.,

468

U.S.

at

855

n.15

(alterations in original) (quoting Flemming, 363 U.S. at 619); see
also Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979) ("The
remarks

of

a

single

legislator,

even

the

sponsor,

controlling in analyzing legislative history.").

are

not

Little other

legislative history of the statute exists, and what the record does
contain suggests nonpunitive motives.

Senator Sam Nunn, the only

other senator who offered substantive remarks during debate on the
legislation, lent his support to the statute, but underscored the
importance

of

allowing

a

Proclamation 4771's mandates.
for

the

ability

of

person

to

register

late

131 Cong. Rec. S6627.

nonregistrants

to

correct

despite

His concern

their

failure

demonstrates the legislation's goal of encouraging compliance.

-38-

Case: 10-1302 Document: 00116194246 Page: 39

Date Filed: 04/08/2011

Entry ID: 5540518

For these reasons, I would find that § 3328 is not a bill
of attainder and affirm the dismissal of this claim.
B.

Equal Protection
For their second constitutional claim, the plaintiffs

contend that § 3328 and the Military Selective Service Act on which
it is predicated violate equal protection as guaranteed by the
Fifth Amendment because the statutes draw unlawful gender-based
distinctions.
has

already

The plaintiffs acknowledge that the Supreme Court
evaluated

the

constitutionality

of

the

Military

Selective Service Act upon an equal protection challenge in Rostker
v. Goldberg, 453 U.S. 57 (1981).

They argue that Rostker is no

longer good law, however, due to subsequent precedent from United
States v. Virginia, 518 U.S. 515 (1996), which, they posit, altered
the legal standard governing equal protection claims, and due to
dramatic changes in the roles of women in the military.
Because Rostker stands on all fours with the present
matter, I would reject the plaintiffs' challenge.

Despite changes

in the military and the extent, if any, of Virginia's impact on the
equal protection standard as applied here, principles of stare
decisis would mandate the finding that Rostker is controlling and
that plaintiffs' claim are meritless.

See Agostini v. Felton, 521

U.S. 203, 237 (1997) ("We reaffirm that '[i]f a precedent of this
Court has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the Court of

-39-

Case: 10-1302 Document: 00116194246 Page: 40

Date Filed: 04/08/2011

Entry ID: 5540518

Appeals should follow the case which directly controls, leaving to
this Court the prerogative of overruling its own decisions.'"
(quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490
U.S. 477, 484 (1989))); see also Tenet v. Doe, 544 U.S. 1 (2005)
(reversing Ninth Circuit because its holding was "quite wrong" and
"contravene[d] [] longstanding" Supreme Court precedent).
In Rostker, the Supreme Court held that the Military
Selective

Service

Act

does

not

violate

equal

protection

requiring men, but not women, to register for the draft.

by

It noted

that Congress is afforded due deference in matters involving
national defense and the constitutionality of its enactments, and
the extensive congressional record of the statute demonstrated that
Congress made a "studied choice" in excluding women from the
registration requirements. Id. at 64-69, 72-77. It then held that
the statute was not an instance of unlawful gender discrimination.
The government had an important interest in raising and supporting
armies, as detailed in Article I, Section 8 of the Constitution.
Id. at 70-72.

The gender classification excluding women from the

draft was closely related to this interest because the purpose of
registration was to facilitate a draft for combat troops, and women
were ineligible for combat.

Id. at 75-79.

No part of Rostker has

been overruled, and its holding would foreclose any review of the
plaintiffs' claim.

-40-

Case: 10-1302 Document: 00116194246 Page: 41

Date Filed: 04/08/2011

Entry ID: 5540518

To be sure, the current reality of the armed forces
represents a marked shift from 1981, when Rostker was decided.
According to the plaintiffs' complaint, more than 200,000 women
presently serve in the United States military, and women now make
up 15 percent of the armed forces, compared to 8.4 percent in 1980.
Legislation enacted after the decision is Rostker permits women to
serve on Navy combat ships and fly combat aircraft, and a new Navy
policy will allow women to serve on submarines.

See Pub. L. No.

103-160, § 541, 107 Stat. 1547, 1659 (1993) (repealing ban on
assignment of women to combat ships); Pub. L. No. 102-190, § 531,
105 Stat. 1290, 1365 (1991) (repealing ban on women from serving on
aircraft engaged in combat missions); Commander, Submarine Forces
Public Affairs, Navy Policy Will Allow Women to Serve Aboard
Submarines,

navy.mil,

(Apr.

29,

2010,

6:35

AM),

http://www.navy.mil/search/display.asp?story_id=52954. Even more,
the congressional Military Leadership Diversity Commission recently
issued a final report urging Congress to allow women into male-only
land combat units.

From Representation to Inclusion: Diversity

Leadership for the 21st-Century Military, Final Report (Military
Leadership Diversity Comm'n, Arlington, Va.) Mar. 15, 2011, at 7174, 127, available at http://mldc.whs.mil/index.php/final-report.
Despite these developments, women are still precluded
from ground combat positions.

Further, Congress has demonstrated

an acute awareness of the gender distinctions in draft registration

-41-

Case: 10-1302 Document: 00116194246 Page: 42

Date Filed: 04/08/2011

requirements, and yet it has not amended the statute.

Entry ID: 5540518

See, e.g.,

Pub. L. No. 109-163, § 541(a)(1), 119 Stat. 3136, 3251-52 (2006)
(directing Secretary of Defense to provide advance notice of
changes to ground combat policy along with "detailed analysis of
legal implication of the proposed change with respect to the
constitutionality of the application of the Military Selective
Service Act to males only." (internal citation omitted)).

Indeed,

the House's Armed Service Committee took pains to explain that
repeals to certain bans on women-in-combat positions should not be
"construed as tacit committee concurrence in an expansion of the
assignment of women to units or positions whose mission requires
routine engagement in direct combat on the ground, or be seen as a
suggestion that selective service registration or conscription
include women."

H.R. Rep. No. 103-200, pt. 2 (1993).

In any

event, it would not be for this court to determine what, if any,
impact these developments had on the continued vitality of Rostker,
a task left solely to the Supreme Court.
III. Conclusion
For the foregoing reasons, I concur in the judgment.
would

find

jurisdiction

to

hear

the

plaintiffs'

ultimately affirm their dismissal on the merits.

-42-

claims

I
but