Monday, October 17, 2011

US Supreme Court Grants Cert. on Federal Employee Civil Service Reform Act Case

4United States Supreme Court 112904Update: Thanks to Ross Runkel for providing background materials for the Elgin case.

Hooray for public sector employment law!

The United States Supreme Court granted cert. today in Elgin v. Dep't of the Treasury, No. 11-45, cert. granted (opinion below at 641 F.3d 6 (1st Cir. 2011)), asking whether former federal employees may bring claims for reinstatement for constitutional violations directly into federal court.  The claims here were for violations of the bill of attainder provision and equal protection clause under the Fifth Amendment because the employees were removed from the federal service for failure to register for the draft by age 26, in violation of a federal statute. 

The federal employees did not first file their claim with the Merit Systems Protection Board (MSPB) under the Civil Service Reform Act of 1978 and so the First Circuit majority dismissed the claim on jurisdictional  grounds without reaching the merits. Interestingly, although the concurring judge disagreed with the jurisdictional argument, he would have dismissed the claims on the merits.

I think I am one of the few people to discuss the ability of federal employees to bring Bivens claims (albeit under the First Amendment's freedom of speech clause), though my argument in that article was basically the same as petitioners here: such plaintiffs should not have to go the CSRA route and the MSPB before bringing their constitutional claim in federal court where there is no adequate remedy under the CSRA. (Here is my article: Whithering the Pickering Rights of Federal Employees).

The Supreme Court has already ruled that Bivens-type constitutional claims for damages cannot bypass CSRA limitations, see Bush v. Lucas (U.S. 1983) , but as to equitable constitutional claims, there is a circuit split.

Way too early for predictions, but it is interesting that the Court took the petition from the employees, who lost, 2-1, in the First Circuit.  Also, the Justice Department had urged that cert be denied.


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Another great article is from a few years ago by Greg O'Duden, Barbara Atkin, and Elaine Kaplan. I do not recall the name though. They are all powerhouse attorneys in NTEU (Kaplan is actually gc at OPM now). Considering NTEU litigated half the cases on this subject, it is quite exhaustive.

Posted by: Per Son | Oct 18, 2011 6:43:11 AM

This really is an interesting case, thanks for the updates.

Posted by: Employment Lawyers | Oct 19, 2011 8:43:26 AM

Don't know about the chances for reversal. My Locke v. Karass case in 2009 was also a public employee case (state employees) from the First Circuit, and the Court affirmed.

Also, this is at least the second public employee case for this Term. Don't know if you knew about Knox v. SEIU Local 1000, No. 10-1121, which is my case.

Posted by: James Young | Nov 2, 2011 5:17:42 PM

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