U.S. Supreme Court

In Unusual Lineup, Supreme Court Rules Against Fired US Employees Challenging Draft in Class Action


The U.S. Supreme Court has ruled 6-3 against federal employees who filed a federal class action suit after they were fired for failing to register for the military draft.

The majority opinion (PDF) by Justice Clarence Thomas said the civil service law provides the exclusive avenue for judicial review, even though the challenge is based on the constitutionality of a federal statute. Unless, discrimination is alleged, the civil service law provides for review of firings before the Merit Systems Protection Board and an appeal to the U.S. Court of Appeals for the Federal Circuit, Thomas said.

Justice Samuel A. Alito Jr. dissented in an opinion joined by Justices Ruth Bader Ginsburg and Elena Kagan.

Petitioner Michael Elgin and other employees had claimed the Military Selective Service Law discriminates on the basis of sex, and the law barring him from federal employment is an unconstitutional bill of attainder. They sued in Massachusetts federal court and sought class action status.

The federal district court had no jurisdiction, Thomas wrote. Although the Merit Systems Protection Board has ruled it has no jurisdiction to rule in constitutional disputes, the Federal Circuit does have that power, he said. He was joined by Chief Justice John G. Roberts Jr. and by Justices Antonin Scalia, Anthony M. Kennedy, Stephen G. Breyer and Sonia Sotomayor.

Alito’s dissent said the majority “sets up an odd sequence of procedural hoops for petitioners to jump through.” He said the majority imposed “pinball procedural requirements” in which constitutional claims would have to be filed with the Merit Systems Protection Board, which kicks them to the Federal Circuit, which would remand for fact-finding, after which the case would be sent back to the Federal Circuit for a constitutional ruling.

“I believe Congress would have been very surprised to learn that it implied this result” when it passed the civil service law, Alito wrote.

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