Monday, October 17, 2011
Update: 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.